Lectures

Madison Lecture

In this Lecture, I offer my own definition of judicial activism: In deciding a case, a court or judge engages in judicial activism when the court or judge eschews the use of a judicial decisional tool traditionally employed to adjudicate that type of case. In other words, judicial activism involves throwing a long-recognized decisional tool—or, in Justice Marshall’s words, “mediating principle[]”—out of the judicial toolkit. Under my definition, for example, the Supreme Court would engage in judicial activism if it refused without explanation to apply the doctrine of stare decisis, given that stare decisis stands at the center of the common-law tradition we inherited from England and has been applied since the earliest days of the republic.

Why does such behavior amount to judicial activism? Because refusing to apply a long-recognized mediating principle eliminates a constraint on a court’s exercise of its decisional discretion. When judges refuse to apply a long-standing interpretive tool, they necessarily expand the universe of situations in which they, in Judge Posner’s words, “bring [their] own policy preferences to bear in order to decide the case at hand.”

To be sure, there necessarily are times when judges must rely on their own policy preferences to decide a case. But, from my perspective, simply ignoring without comment a well-established mediating principle generally applicable in the type of case at issue—or justifying the act of discarding a fundamental principle by relying on a legal or policy argument as to the undesirability of that principle—is a fundamentally activist enterprise.

My Lecture will proceed as follows. First, I survey the origin of the term “judicial activism” and the various ways it has been defined by judges and scholars. Those definitions generally fall into two categories: those focused on outcomes and those focused on the process a judge applies in reaching an outcome. Second, I set forth my own definition of judicial activism—which falls into the process category—and explain why I believe that definition gives meaning to the principal concern animating accusations of judicial activism: that the judiciary is stepping outside of its proper role and unjustifiably deciding cases based on its own policy preferences. Third, I explain some means by which activism (as I define it) enters judicial decisionmaking. Finally, I apply my definition to demonstrate why the judicial interpretive methodology of textualism and the recent Supreme Court partisan gerrymandering decision, Rucho v. Common Cause, are stark examples of judicial activist behavior.

IJA Brennan Lecture

Brennan Lecture

Threats to judicial independence are most commonly viewed as arising either from politically motivated depredations by other branches of government, or from improper inducements or coercion from individuals or groups in the wider society. Both types of threats are external to the court. What of the internal environment within which judges operate, particularly the immediate environment comprised of their colleagues on the bench? Drawing on a judicial career spanning thirty-seven years, including fifteen as a U.S. District Court judge and the past seven in my present position on the U.S. Court of Appeals for the Sixth Circuit, as well as on legal scholarship and the perspectives of other jurists past and present, I will address what one scholar calls the “complicated interdependent decisions” faced by judges on multi-member courts. This Lecture will explore the often complex calculus and subtle intrajudicial considerations that go into a judge’s decision whether—and, if so, how—to dissent in a particular case. I encourage reflection both on the costs that dissent exacts on the individual judge and on the court as a whole, and on the enormous value it can have as an expression of legal conscience and even, on occasion, as a voice of prophecy pointing to future change in the law. Ultimately, I view the right to dissent as precious, and a pillar of judicial independence.

Brennan Lecture

William J. Brennan, Jr. Lecture

In the second annual William J. Brennan, Jr. Lecture New Jersey Supreme Court Justice Stewart G. Pollock explores the relationship between art and adjudication. The separation of powers, the federalist system, and the inherent constraints of the common law confine state courts. Notwithstanding those constraints, state courts have demonstrated creativity when interpreting state statutes and constitutions and when adapting the common law to changing conditions. Thus, Justice Pollock finds artistry in the work of state courts. He begins by exploring creativity in statutory interpretation. Then, Justice Pollock examines two areas of substantive law of great public concern: public-school-finance litigation under state constitutions and the common-law redefinition of the modem family. Justice Pollock demonstrates how state appellate courts, through public-school-finance litigation, have shaped the constitutional right to a public-school education. Justice Pollock then discusses how state courts have reacted to the changing composition of the American family. By recognizing these changes, state courts have redefined the family in areas as diverse as zoning ordinances, surrogacy agreements, and same-sex marriages. Common to all these endeavors is protection of the inherent dignity of the individual. Justice Pollock concludes that an appreciation of the similarities between art and judging may lead to a better understanding of the judicial process.

Brennan Lecture

When I look back on the origins of our nation, I feel both a deep sense of pride and a sense of apprehension for the present and the future. Habeas corpus is being undermined, legislatively and judicially; sentencing is suggesting a newly devised theory of “nothing succeeds like excess”; and there is a constant flow of suggestions for amending the Constitution. One is impelled to ask, as Archibald MacLeish did so plaintively: “Where has all the grandeur gone?”

Madison Lecture

In this Madison Lecture, Chief Judge Richard S. Arnold of the United States Court of Appeals for the Eighth Circuit explores the subject of constitutional interpretation as practiced by the eponymous James Madison. Following Madison’s public arguments and private statements through crucial early American debates over federal powers, Judge Arnold finds that the “Father of the Constitution” refused to take advantage of his own formative contributions to the Constitution. On the contrary, Madison sought constitutional authority in the citizenry, as exercised through state ratifying conventions and through the precedential effect of deliberative legislative action. Arnold reminds us that Madison was a consummate politician at a time when the occupation was not yet a pejorative epithet, but public officeholders were even then subject to harsh personal criticism that rivals if not surpasses the political vitriol of our times. Madison nevertheless developed a consistent, yet flexible, view of constitutional interpretation that can still enlighten he constitutional debates of today.

William J. Brennan, Jr. Lecture

Twenty years ago, Justice William J. Brennan sounded a clarion call to lawyers and judges not to overlook the capacity of state law, especially state constitutional law, to assist in the pursuit of justice for all. Today, the judges and justices of state courts have taken that message to heart by undertaking innovative measures to protect individual rights through state constitutions and through independent interpretations of the Federal Constitution. Despite this emerging trend, litigators, law reviews, and legal scholars have continued to focus on the federal system. In this Brennan Lecture, Senior Judge Ellen A. Peters of the Supreme Court of Connecticut responds to this not-so-benign neglect, observing that state courts determine the totality of rights of the vast majority of litigants, draw on a broad reservoir of common law principles and remedies, and play an integral role in maintaining our federalist system. Developing this last point, Judge Peters examines tie history of state courts in the federal system the extent to which state courts may invoke neutral procedural and jurisdictional rules in the face of arguably different federal mandates, and the implications for the role of the states of recent developments in United States Supreme Court jurisprudence.