Judges get blamed for their "activism," but the real problem is the failure of legislators to create clear laws


One of the first things you realize in law school is that "the law" is less often a majestic tapestry of justice, and more often vague and ambiguous, arbitrary and capricious. This is true of the contours of the "rule of law," the broad concept which helps describe the legal system of a nation state. And it is true of most specific laws: statutes, codes, etc. It helps explain why the world evidently needs most of the schmillions of lawyers and judges who currently inhabit it. 

There are many reasons for the law's mushy presence in our lives, but the most significant one involves the way lawmakers practice their craft. The compromises that politics generate, when reflected in the language of legislation, usually dissolve away any chance for the sort of certitude the law favors. It's easy for politicians to agree upon the use of the word "reasonable" when defining a new restriction or policy, for example, because it passes along to the judge and jury the task of defining what "reasonable" is or ought to be in a specific instance. The politician gets the credit for passing a law. And the public blames the judge for applying its vague language (or, less frequently, for striking it down).

It's the perfect crime. And I have been railing against lazy, gutless legislators for years. What makes the dynamic worse, and much more cynical, is that it's often the very same lawmakers who have failed or refused to make tough choices in legislation--passing the buck to another branch--who then publicly criticize the judges forced to make that choice. That's just one of the reasons why the phrase "judicial activism" drives me crazy. The only reason the judges are "acting" at the law's edge is because, in too many instances, the lawmakers didn't have the political courage to "act" in the first place by enacting clear laws.

Which brings us to my new best friend, at least for this week. On Thursday, United States Supreme Court Justice Antonin Scalia chimed in on the topic, as only he can do, with a dissent in Sykes v. United States. The case is about an oft-litigated statute called the Armed Career Criminal Act. The Court's majority upheld a lower court ruling that enhanced a confessed criminal's prison sentence after determining that his prior felony of "vehicle flight"--when you flee in a car from a cop who has asked you to halt--was a "violent felony" under the ACCA. But here's what Justice Scalia wrote:

We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution encourages imprecisions that violate the Constitution. Fuzzy, leave-the-details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nitty gritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step--indeed, I think it would be highly responsible--to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

Justice Scalia is not the first judge or justice to call out legislators. Judge Learned Hand was kvetching about the very same thing 100 years ago. And if you can corner an actual living, breathing, trial judge these days, it wouldn't take you long to gain a confession that the problem Justice Scalia is describing is, indeed, bad and getting worse. The less courageous and clear lawmakers are in drafting legislation, the more courage it takes for judges to apply the law and the more likely they are to render decisions which are susceptible to popular criticism. But, of course, that's the whole point, isn't it? Lawmakers don't write laws well. But they sure know how to deflect blame.

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