A local law professor recently warned voters not to be “fooled” by candidates for judicial office who promise to follow the rule of law. Cooley Law School’s Joseph Kimble claims that these judges falsely promise voters they’ll be neutral and objective but follow a judicial philosophy that bends the law to suit a politically conservative agenda. His disparaging caricature of so many well-intentioned judges in Michigan is unfair and highly misleading.
A “rule of law” judge is simply one who acknowledges his or her limited role in our system of government. That system is founded on the idea that the government’s power to make and enforce laws comes from us – we the People. We do that by electing representatives like legislators – not judges – to make laws on our behalf. A judge’s job is to interpret the laws.
In approaching that job, a rule-of-law or “textualist” judge starts with the understanding that the finished product of the lawmaking process – the words of the statute agreed to and voted on by all our representatives – is the law. A rule-of-law judge focuses on the text of the law; he or she does not try to guess the legislators’ hidden intentions or ask what a more sensible law might have said. Instead, they ask how the words of the statute would be best understood by a reasonable, well-informed person reading it in context – exactly what is expected of all of us as individual citizens. This approach limits the opportunity for judges to introduce their subjective views into the law, which maximizes our power as citizens in the democratic lawmaking process.
This judicial philosophy is not, as Professor Kimble claims, a “brand name for ideologically conservative judging.” Textualism, by definition, is apolitical. It does not depend on which political party controls the legislature or whether a judge personally agrees or disagrees with the law or its outcome in a given case. Professor Kimble claims to see a pattern of politically conservative results in textualist decisions, but, notably, he does not claim that any of those decisions are “wrong.” His criticism, then, says more about his own personal disagreement with the laws that we the People enacted than it does about the judges who decided those cases.
Don’t be fooled. The fact is, rule-of-law critics have no qualms about reaching ideological results, so long as it is their views of sensible policy and justice – their ideology – that prevails. The alternative approach to interpreting statutes offered by Professor Kimble and other rule-of-law critics encourages judges to follow their “intuition, common sense, legislative history, real-world consequences, and sensible policy.” This approach – what many call “legislating from the bench” – undermines our democratic power as citizens to make our rules through elected representatives. We hire elected representatives – not judges—to write our laws. It is the judges’ job to interpret and apply statutes based on the words our elected representatives voted on, not the judge’s intuition about what some idealized version of the legislature would have wanted or what would make sensible policy.
Judges who promise to follow the rule of law are essential to our system of government because the further judges stray from the statutory text, the more likely they are to inject their own personal views into our laws. That may not be problematic for those who are willing to put their faith in certain judges’ enlightened sense of justice. But I, for one, will put mine in we the People.
