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Wednesday, May 25, 2011

How Should Elected Judges Interpret Statutes?

Federal judges are unelected and, basically, politically unaccountable. Most state judges are elected in some form or another. What (if any) significance does this hold when it comes to how judges should interpret statutes? There is some evidence that modes of selection and retention do in fact affect judicial behavior, but here I am asking the normative question. Should a judge's elected character make a difference to the judge's interpretive method?

A) No. What matters is the judicial role. That role determines the proper interpretive method. How one got into the role is irrelevant.

B) Yes. Elected judges can legitimately engage in looser interpretation or more aggressive interpretive maneuvers because they have a better democratic pedigree. (I concede that some of the terms being used here are vague, contested, complex, etc. but I hope they have enough content to allow the reader to agree or not.)

C) Yes, but in the opposite way. Elected judges have to be more restrained precisely because they lack the right kind of independence.

D) None of the above.

As you might guess, this issue is implicated in one of my current research projects. I am tentatively endorsing B. Perhaps you can save me from making a fool of myself by explaining why I'm totally wrong before I post the draft on SSRN.

Posted by Aaron Bruhl on May 25, 2011 at 05:05 PM in Judicial Process, Legal Theory | Permalink


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Hey Aaron,

Last Spring, I asked this question of my Legislation students at Hastings and Berkeley. I didn't give them the multiple choice options -- but here is the portion of my feedback memo that addressed the issue. After reading over 100 essays on the subject, I wound up convinced that there were really good arguments for all of A-C, so I wasn't ready to take a position myself. I'm eager to see what you come up with.

Part I

How should elected judges or judges subjected to retention elections interpret statutes? Why? Should their interpretations differ from their appointed colleagues in state or federal courts? Why or why not? Write an essay on these themes. [20 points]

Scores here ranged from 0 to a 16. Most people who said plausible, coherent, and relevant things got about 10 points. Obviously, there was a lot you could do with this question. At the very least, though, I wanted you to address the question asked and provide an argument for whether there should be a difference between appointed and elected judges’ methodologies; considering counterarguments to whatever position you took made for a much better answer.

Many of you got hung up on your favorite theory of statutory interpretation, a strategy that left you less time to focus on the real call of the question, which was an effort to tie general theory to the specifics of judicial selection and/or termination. I thought it was reasonably clear that I didn’t want you to enter the debate about whether we should have judicial elections at all.

Most of you tried to defend a “uniformity” idea – that we should have all judges respecting their role as impartial, suggesting that no judge should consider constituent preference. Of course, this was a permissible argument and could have been done well and with nuance (though you might just as well have said that all judges should be Handy-like and consider the public morality to render statutes legitimate). But too often, students resorted to generalities and constitutional arguments that seemed beside the point. If a state constitution allows the election of judges, maybe the theory of the judge is different as between states and the federal system. So those arguments – and broad “separation of powers” ideas without much detail – usually didn’t produce strong essays. The book discusses these issues on 739-41; using specifics was likely to give your essay texture and was awarded extra points.

Obviously, Hastings students could have usefully engaged the ideas of Jed Shugerman, Joe Grodin, and Jason Mazzone presented at the Symposium to think more carefully about what elective judiciaries can be good for (independence) – and how they can be pathological (campaign finance issues and voter incompetence and reduction to single issue elections). Thinking about judges’ length of terms seemed reasonably interesting (and Jed has shown that the length of terms actually has an effect on independence). Berkeley students had sections from the Gluck article that focused on these issues. Using those sources wasn’t necessary but tended to produce rooted essays that were more persuasive than the ones that failed to use any real detail.

Two other sources might have been useful as opportunities for independent thinking, using the course materials as points of departure. Some used Chisom to very good effect, where the Court debated whether judges really are “representatives”; there were neat ways to draw that debate into your essay. And some used Leib/Ponet to analyze whether judges were best thought of as agents or trustees – and whether that changed if you have judicial elections rather than appointments.

If you got 12 points or more, you were well above average.

Posted by: Ethan Leib | May 25, 2011 7:44:03 PM

Interesting question. One thing to consider is that judges' opinions in one jurisdiction may (and in my view should) effect how judges in other jurisdictions rule. A doctrinal expression of this is the borrowed statutes rule, but I think it runs deeper than that.

This adds a wrinkle for the obvious reasons.

Any thoughts?

Posted by: Hillel Y. Levin | May 25, 2011 8:01:50 PM

If the relevant State constitution vests all legislative powers in the legislature, what difference does it make that the judges were elected democratically? Even if the legislature were not voted into office (but were, say, appointed by the governor), that wouldn't change the fact that the people placed the lawmaking power in the hands of the legislature and that the legislature's will should be effected.

I could see why differences in how the legislature is constituted and how it passes laws might affect one's general theory about how best to fulfill the legislative intent. But how *judges* get their seats seems to have little to do with determining how to figure out what the legislature meant when they passed their laws.

If 7 SCOTUS justices were appointed by the President and 2 were popularly elected, would the 2 elected justices have a greater claim to ignoring the legislature's intent because they were elected? This position seems absurd to me (again, assuming that the Constitution vests all legislative powers in the legislature), but it sounds like you would disagree.

To go further, if, under the Constitution, the President appointed all members of the legislature (in which all legislative powers were vested) but all federal judges were popularly elected, would the will of the judiciary trump the will of the legislature, because of "democratic pedigree"?

In making these comments, I'm assuming that the goals of statutory interpretation in the state law context are the same as in the federal law context (I'm admittedly unfamiliar with statutory interpretation theory in the state context). If a special lawmaking role has traditionally been reserved for judges in a particular state, I could perhaps see why appointment/election may bear on how that lawmaking power is exercised.

Anyhow, thanks for raising these fascinating issues, and I'm looking forward to reading your paper.

Posted by: andy | May 25, 2011 9:28:46 PM

I would go with A. It should be about institutional role and function and not democratic accountability. Judges interpret and apply because that is what defines judicial decisionmaking. How they remain there (which really is this issue more than how they got there) should not matter.

In any event, the usefulness of this question is not limited only to the judiciary. We could ask the same question about the different methods of selecting an executive and how that should affect the actions of the executive and her relationship to the legislature.

Posted by: Howard Wasserman | May 25, 2011 10:10:17 PM


A very interesting discussion. In case this helps (and assuming that you have not already run across it), Helen Hershkoff wrote an excellent article making the case against judicial restraint in enforcing positive rights under state constitutions, in which she rested a portion of her arguments on your Option B. The citation is 114 Harv. L. Rev. 1833 (2001).

State constitutions are often very statute-like, and state courts often employ the tools and canons of statutory construction in interpreting these documents. There is also arguably a "borrowing" phenomenon among state constitutions, along the lines of the borrowing of statutes to which Hillel refers. So Hershkoff's article may provide a useful analogy at least.

Most states adopted the electoral selection mechanism as a way of counteracting the capture of state politics by wealthy elites and special interests, and keeping the courts attentive to the needs of the people. I think the argument for B is therefore strong. But considering the very strongly worded separation of powers provisions in most state constitutions, most of which seem directed at walling off legislative powers from the judiciary, I would tentatively lean toward Option A.

Posted by: Scott Bauries | May 25, 2011 10:32:58 PM

Interesting comments, everyone. A couple initial reactions, for now:

Andy, I really like that thought experiment with the 7 appointed Justices and 2 elected Justices. Maybe intuitions become unreliable in situations like this, but I can imagine that, in such a regime, things might develop such that the two sets of Justices were supported by their own distinct theories of legitimacy, with differing expectations about their proper mode of decisionmaking. The "People's Justices" (we could call them) might be expected to provide a populist check on elitist legalist interpretations, say, or maybe they would be regarded as enjoying greater license to interpret aggressively in order to overcome legislative inertia or combat legislative self-dealing.

Hillel, I can see the point that a particular interpretation from another jurisdiction, even when not formally binding, should get some weight, even if that decision is reached via a method that the second court would not use. Do you mean to say there should also be such an effect at the level of methodology more generally (e.g., we should be textualists or adopt Chevron or whatever in this jurisdiction because they do that over there in our neighboring jurisdiction), in addition to at the level of the particular interpretive outcome (e.g., a boat is a "vehicle" under Act Z)? I'm not saying I disagree with the broader version of the point, I'm just wondering if that is what you mean.

Posted by: Aaron Bruhl | May 25, 2011 11:14:50 PM

My inclination is also toward choice (A), but for a somewhat different reason: ordinary citizens themselves have indicated that the primary responsibility of their elected state judges is to decide cases using professional legal analysis, and without regard for public preferences. Social science research for more than two decades has demonstrated that the public legitimacy of courts and individual judges is tied more strongly to the fairness of the procedures than the actual outcome. My own current research suggests that in high-salience elections, voters will place much greater importance on whether the judge or judicial candidate has demonstrated the requisite respect for established procedures and has adequately justified his or her decisions, whatever they may be.

What this suggests to me is that a judge’s interpretive method should not be measurably affected by the method of selection. Voters (whether in a contestable or retention election) first and foremost want judges who uphold the legitimacy of the court by adhering to (at least perceptibly) fair procedures. There is a more significant problem of communicating the fairness of the procedures and the adequacy of the justification to voters at election time (and indeed, this is what I believe fell flat in Iowa last November). But as to the normative question of how a judge might best take public accountability into effect, I think the public’s own answer is that any generally acceptable interpretive method is okay.

Posted by: Jordy Singer | May 26, 2011 9:48:27 AM

For those who find it important that the separation of powers (whether specific vesting clauses in the federal or state constitutions or just the broader principle) gives "judicial" power to courts and "legislative" power to legislatures, a couple thoughts.
1. I agree that the notion of "judicial" power carries with it some constraints, but I'm not sure it tells us that much about judicial methodology.
2. Doesn't the meaning of "judicial" power turn in part on what else the relevant constitution tells us? If it tells us that the judges are elected, maybe that sheds light on what "judicial" power means in that regime.

Posted by: Aaron Bruhl | May 27, 2011 10:11:13 AM

Fair questions, Aaron, and let me say that the proper conception of the judicial power probably includes all of the current generally accepted statutory interpretation methodologies (though I'm no expert on the methodologies themselves).

I do not know what kinds of interpretive choices you are specifically contemplating, but at the more extreme end of the spectrum, I think that the judicial role does indeed place constraints on the methodologies that may be permissible. Imagine, for example, that a court adopts a statutory interpretation methodology called "Western consistency interpretation," which requires that the plain meaning of statutory terms be ignored whenever applying the terms as written would create an inconsistency with the substantive law of the European Union. I think that most would view this move as one that takes the judiciary from judging to legislating, even if it were couched as the selection of an interpretive methodology. Under this extreme example, at least, it seems that role conceptions would place limitations on methodological choice. I doubt that this constraint would reach any statutory interpretation methodology currently in use, so maybe this question is just academic, but at a certain point, it seems the constraint based on the judicial role must exist.

As to your second point, I agree that reading a state constitution's provisions in concert could shed some light on the interpretation of the term "judicial power" in the judicial article. However, I think it's much more likely that the inclusion of an electoral selection or retention mechanism is for the purpose of constraining the judiciary than it is for the purpose of liberalizing it. If that's the case, then the justification for more aggressive interpretive moves seems to disappear.

Posted by: Scott Bauries | May 27, 2011 1:13:06 PM

I'm sympathetic to B. I'm writing a note about Chevron right now, and it strikes me that, whatever you think the justifications for deference should be or whatever direction you'd like Chevron doctrine to go in, the only theory that can explain Chevron as it exists today, as opposed to something that looks a lot more like Skidmore, is what Stevens actually says about political accountability and the judiciary's lack thereof. If the judiciary were to become politically accountable - and directly so at that, unlike agencies - I don't think a deference rule as categorical as Chevron would make much sense. That isn't to say, necessarily, that a judge is competent to instruct the EPA on best environmental practices because he happens to have been elected, and as Jordy Singer points out above, that's probably not what voters expect of their elected judges. But I do think that using purposivism to resolve textual ambiguities might be more legitimate in the hands of elected judges.

Posted by: Asher Steinberg | May 27, 2011 8:06:42 PM

If you ask: Should a judge's elected character make a difference to the judge's interpretive method? I believe it SHOULD NOT.(A kind of ideal)

If you ask: Does a judge's elected character make a difference to the judge's interpretive method? I blieve it Does.

I suppose, there are more than one kind of element that makes a difference to judge's interpretive method , not just the lelected character, such as religious belief, race color, party belonging, or even the mood when a judge intertprets statutes. Federal judges are also different in their interpretation method, though without the elected character. We do wish judges, no matter federal or state, be something like deity, but they are surely not. And, you may believe a judge's interpretation is looser, but I may believe it's not looser; you may believe a judge's interpretation is aggressive, but I don't think so .

I suppose,it will not be very meaningful to discuss “should ” or “should not” , because the process of judge’s interpretation of statutes is a process of thinking, and maybe we are not albe to restrict man’s thinking behavior. So, maybe we should focus on reducing more and more negative characters for judges, like elected character. I mean, all judges should not be elected,but be selected.:)

Posted by: Lutong | May 29, 2011 10:09:40 PM

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