How to be a Judge

If you are a judge in a democracy whose constitution requires you to strike down or rule incompatible legislation that is inconsistent with certain basic rights, how should you behave?

First, you should stay close to the text of the constitution. Although judges clearly make law, in the sense that through their decisions they posit rules that did not exist before, they should only do so to the extent mandated by the positive law.

Second, you should interpret your power with respect to legislation restrictively. The legislators have a democratic mandate that you do not possess, and will themselves be mindful of what the constitution requires of them. The legislature should be given the benefit of the doubt in borderline cases.

What is striking to an outsider is that the Supreme Court of the United States (SCOTUS) follows neither of these principles. Instead it has become what Scalia J calls a ‘super legislature’. The court’s judgments split along a predictable conservative/liberal divide. This divide is not, as each side sometimes claim, based upon any high-minded principle of interpretation of the Constitution (such as strict textualism, originalism, or the ‘living tree’). Rather it is along a nakedly political left/right line.

Many examples can be given to make good this claim, but I will do so using two famous recent cases illustrated by applying the two principles set out above.


If I say to you

“It being necessary for you to take your children to school, I lend you my car for an hour.”

once you are in possession of the car are you free to use it for any purpose you like? Could you use it to go shopping, while your children walked to school? If your children are already at school, can you still use the car? On the plain meaning of words, the answer is no. The statement of purpose in the first clause governs the second.

The Second Amendment to the Constitution of the United States reads

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Again, the statement of purpose in the first clause governs the second. The liberty of the people to bear arms is restricted to doing so for purposes of maintaining a well regulated militia. If the need for a  well regulated militia comes to an end (because for example you now have a large state army), so too does the restriction on the state’s power of regulation. Any interpretation that concludes that to bear arms for other purposes is also unrestricted would be treating the opening clause as mere surplusage, something a court should be reluctant to do.

Even if the words of the Second Amendment are thought to be ambiguous (they are not) a court should interpret the provision restrictively, as it should with any constitutional provision limiting the power of a democratic legislature.

Famously or infamously a conservative majority of SCOTUS  (Scalia J joined by Roberts CJ and Kennedy, Thomas and Alito JJ) rejected the natural interpretation, with the liberals (Stevens, Souter, Ginsberg, Breyer JJ) dissenting. Provisions of the Firearms Control Regulations Act 1975 were struck down. Despite dozens of pages of alleged proof, it is difficult to agree with the majority that the background to the Second Amendment enables, let alone requires, their non-natural reading of the words.

Gay Marriage

The first section of the  Fourteenth Amendment to the Constitution provides

[N]or shall any State deprive any person of life, liberty, or property, without due process of law

What does ‘liberty’ mean in this provision?

The natural reading of the text supports a reading of a guarantee of procedural fairness in relation to criminal sanctions. The number and variety of ‘liberties’ we possess are so many and different, that the provision cannot be read as restricting the power of States generally to restrict any ‘liberty’ at all. All criminal law duties would fall foul of any such provision. The sequence “life , liberty or property” indicates that the liberty referred to is the liberty of movement which is taken away by imprisonment. That this is the only liberty referred to is reinforced by the reference to its being taken away “by due process of law” – ie at the end of a criminal law trial. Other provisions of the constitution may constrain the substantive content of the laws of a particular State (eg constraining what people are free to do) but the Fourteenth Amendment does not.

If a State outlawed the carrying of a concealed weapon this deprives all its citizens of a liberty to do so. Is depriving people of this liberty prohibited by the Fourteenth Amendment? No. The provision is clearly referring to the criminal sanction of imprisonment, not to any and all restrictions on liberty in a State’s laws. If ‘liberty’ is to be given a wider substantive reading, how could it be restricted on its wording to particular classes of liberty which States may not constrain?

Again, even if the words of the Constitution are thought ambiguous (they are not) a court should interpret them restrictively, in a properly functioning democracy.

For at least six decades. the Due Process provisions of the Constitution have not been interpreted in this way. A vivid illustration of why not is provided by the (shocking) facts of Loving v Virginia. A black woman and a white man were sentenced to a year in prison by the state of Virginia for marrying each other. The anti-miscegenation legislation criminalising their behaviour was the Racial Integrity Act 1924,and was struck down by a unanimous SCOTUS. Warren CJ stated

These statutes also deprive the Lovings of liberty without due process of law in violation of the Due Process Clause of the Fourteenth Amendment. The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men.

Marriage is one of the “basic civil rights of man,” fundamental to our very existence and survival. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

If the narrow, restrictive, but natural interpretation of the first section of the Fourteenth Amendment I set out above is correct, then Loving v Virginia is wrongly decided. Anti-miscegenation laws are disgusting and barbaric, but they are not on their face prohibited by a clause about due process which does not define what is and is not capable of being a crime.

To understand why the court adopted such an interpretation, it is necessary to look for non-legal reasons. At the time Earl Warren became Chief Justice in 1953, American democracy was sclerotic. Jim Crow laws in the southern states were used to suppress black voting. A coalition of conservative Republicans and southern Democrats led by Richard Russell Jr dominated the Senate blocking change at federal level. Loving v Virginia forms part of the sequence of cases, most famously including Brown v Board of Education where the Supreme Court sought to address the grotesque injustice of institutional racism that, until the Civil Rights Act 1964 and the Voting Rights Act 1965, the legislative branch had so obviously proven itself unable to tackle. In order to address this injustice, the court was forced to abandon the kind of conservative approach to the judicial function with which I started.

Moving to today, the Supreme Court by a majority (Kennedy, Ginsburg, Breyer, Sotomayor and Kagan JJ) in Obergefell v Hodges held that marriage was a fundamental right guaranteed by the Fourteenth amendment due process provision, which extended to the provision of marriage to people of the same sex. The opinions of all the members of the court, both majority and dissentients (Roberts CJ, Scalia, Thomas, Alito JJ), are remarkably high on rhetroic and low on legal reasoning. On the restrained textual approach with which I began, the dissentients are, again, correct, but even the most conservative members of the court balked at declaring Loving v Virginia to be wrong.

The complaints from the conservative dissentients that the result involved an illegitimate usurpation of the democratic legislature’s function are, of course, richly ironic, indeed absurd, coming from the mouths of those responsible for, among other cases, Citizens United v FECShelby County v Holder and Burwell v Hobby Lobby. That does not however mean that they are wrong this time. The true divide on the court is not between those who wish to show restraint and those who do not. If only it were.

Lessons for Elsewhere

Unlike Scalia J I do not purport to be neutral about the issue of gay marriage. I strongly support it. Denying one section of society the power to marry whomsoever they love is abhorrent. That other people may be offended by their marrying, on religious or other grounds, is not a relevant consideration. I defy anyone rational not to be moved by this account.

However, for such issues to be resolved by the judicial interpolation of rights into a constitution that do not on their face appear there, seems to me to be something that should only be done in cases of democratic breakdown. Just as the Abortion Act (UK) 1967 is a better way of doing things than Roe v Wade (US), so the Marriage (Same Sex Couples) Act (UK) 2013 is better than Obergefell v Hodges. All societies are prisoners of their history, but this is especially so in the United States where arguments in favour of allowing individual state legislatures to resolve controversial ethical measures for themselves are given the label ‘States’ Rights’. A long and bloody civil war was fought to defeat those who wrongly invoked this idea.

It is easy for liberals, and I am one, to denounce judicial activism when it leads to results we dislike, such as the end to legislative controls on political expenditure by non-profit organisations. It is much harder to speak up when ends we approve of are reached by the wrong means. Liberalism can be in tension with the law. We should only abandon the law as a last resort.

“Winning” through the judicial process is bad in the long run for both liberals and conservatives. As ultimate appellate courts are not bound by their own decisions, any appellate decision is vulnerable to being overturned in the future. We find that judges are appointed not because of their legal acumen but because of their political views. Cynics cheer on this process. This has a corrupting impact upon the judges themselves

The price paid for gay marriage in the United States is the inability of states to control gun ownership. We should not cheer results while ignoring the means by which they are achieved.