The Rule of Law for Judges

Abstract

Judge Learned Hand told of a time when he bid goodbye to Justice Oliver Wendell Holmes by saying: "Do justice." To this, Holmes replied that his job was to do the law and not justice. I wonder how many Americans can understand this statement by a judge, and how many would agree with it. The response would more likely be affirmative if the inquiry were restated: would you prefer a government where justice for all is served by the separation and limitation of powers and by judges who respect those limits and follow the law, or do you want judges to impose their personal notions of justice in each case?

We talk often about the rule of law. I am confident that everyone - other than an anarchist or warlord - would affirm the vital importance, not only to America but also to every nation, of the rule of law. 

Human rights and capital investment can be reasonably secure only if protected by rules that are known today and can be enforced tomorrow. Government will enjoy the respect of its people only if laws are designed to obtain equal treatment of all. Conflicts between citizens must be settled by rules rather than by unpredictable decree of officials or judges. Otherwise citizens cannot plan their affairs and will not respect authority. And if the rules are uncertain, perhaps because of judges who have an agenda that trumps the law, every dispute will be taken to court and pursued to the end, clogging the courts and favoring the party who can best afford the process.

It follows that judges should be constrained by the rule of law, by its letter and by its traditions, and they may not substitute personal preference - right or wrong, popular or unpopular - for the law that rules them also.

That is where I am going. On the way I will address the meaning of this "rule of law" expression, and how I believe it should be applied by judges to the cases before them. Then I am moved to describe the erosion in the application of the rule of law by American lawyers and judges, an erosion I lament and believe must be corrected.