Should Judges Apply the Law or Make the Law?

by Burt on May 28, 2009

Sonia Sotomayor, the anointed choice for the Supreme Court, will come under scrutiny in the Senate for her views and some of her remarkable statements. For example, she said, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” She is saying that richness of experience can, perhaps, lead a Latina woman to “reach a better conclusion than a white male. . .” If that is true, then it is possible that richness of experience might lead a white male to reach a better conclusion that a Latina or black American. If that is true, then law is relative and the subject merely of individual experience. There are no objective standards, only experiences that may lead to one applying the law in different ways to different people. If that is true, then there is no actual law, only judges who make individual judgments–presumably drawing on the alleged richness of their experiences.

Ms. Sotomayor’s mandate for judicial activism is a far cry from that of Oliver Wendell Holmes, who had distinguished service on the Supreme Court for about a quarter of a century. He said, “The law takes no account of the infinite varieties of temperament, intellect, and education which make the internal character of a given act so different in different men. It does not attempt to see men as God sees them. . . . If, for instance, a man is born hasty and awkward, is always having accidents and hurting himself or his neighbors, no doubt his congenital defects will be allowed for in the courts of Heaven but his slips are no less troublesome to his neighbors than if they sprang from guilty neglect. His neighbors accordingly require him, at his proper peril, to come up to their standard, and the courts which they establish decline to take his personal equation into account.”

Since judges are not gods, our society is better served by judges who apply the law rather than judges who use the richness of their experiences to make laws from the bench. For a fascinating discussion of these two approaches to law, I recommend Thomas Sowell, A Conflict of Visions.

For more info on A Conflict of Visions click HERE.


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