There has been a lot of discussion about President Obama’s nomination of Judge Sotomayor to the Supreme Court of the United States. There has been much persnickety analysis of a few remarks she made at a conference, and one or two decisions she made, including the fact that her decisions as a Court of Appeals judge have been overturned more often than not by the Supreme Court itself. The big question is whether she will stick to the law or be an activist judge, which means that she will want to make law and public policy from the bench. 
The reader may ask, “What does this have to do with economics?” The answer is, a lot. The economic system never operates in a vacuum, but is part of a three-legged stool, the other two legs of which are a religious-moral system and a legal system. These three legs of the stool operate together to form the character of any country.  Since we are discussing law, let us take an example of the economy of a country trying to operate a free-market economic system, but where the courts are corrupt. There will always be disputes in business. People understand agreements in different ways, interpret contracts, especially the more complex ones, differently, and, of course, some people are downright dishonest. Instead of taking matters into one’s own hands, business people take the matters in dispute to an impartial court for a decision. But if the courts are corrupt, it means that they will decide for the one who bribes them, or the one with the political connections, or in favor of friends and relatives, rather than according to the law. This corruption limits the amount of risk that the business operator is willing to take, because, if something goes wrong, there is no sure legal remedy. Countries with this type of court system tend to live in primitive economic conditions for that reason.
Any country that to expects to have a prosperous economy needs citizens who respect the rule of law, and courts that will adjudicate disputes according to that law. Judges who legislate from the bench, that is, who decide not according to the law but according to what they would like to see, destroy the confidence in the courts needed to operate business successfully, not to mention the penal law system. 
But do not take my word for it. The great Constitutional scholar (a non-lawyer, I might add, and don’t get me started on lawyers’ ignorance of the Constitution) Dr. George Carey of Georgetown University wrote an article many years ago, bringing us back to the intent of the framers of the Constitution regarding Article III of the Constitution, the judicial article. All legal decisions must take into account right off the bat the intentions of those who wrote the article or statute in question. The words of the article or statute cannot be understood reliably by using the words themselves, because words are susceptible to a variety of meanings. Therefore, any legal scholar or judge who is competent goes to what the authors of the law intended to accomplish by the law in question. In interpreting the Constitution of the United States, there is a hierarchy to be used in ascertaining the meaning of any section. After the words themselves, there come the debates in Constitutional Convention, and after that, the most thorough, authoritative explanation of the document, the series of newspaper articles written by three of the Founding Fathers, called The Federalist, written under the pseudonym “Publius,” the intention of which was to explain the provisions of the new Constitution to those who had objections. Dr. Carey points out that in discussing the ability of the Supreme Court to overturn statutes, liberals never refer to the preeminent Federalist on the subject—Federalist 78. Why is this? 
First of all, Publius tells us, we must understand that the Constitution is “fundamental law.” This means that it is foundational. The Constitution is an official expression of the will of the whole people, hence it begins, “We, the People of the United States . . . .” Statutes, law passed by legislatures, while binding, are the will of the representatives of “We, the People of the United States . . . .” In a conflict of laws between a statute and the Constitution, the Constitution must prevail. The Constitution itself does not speak of the ability of the Supreme Court to overturn statutes, but Federalist 78 tells us that limitations of the power of the legislative branch “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void” (my emphasis). The word “manifest” means “evident to the senses,” and “tenor” means an exact copy. In this case it means the literal words of the document (Black’s Law Dictionary). Publius notes that in order for the Court to declare a statute unconstitutional, there must be an “irreconcilable variance” between the two.
Publius goes on to say that “The courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body” (emphasis in the original).
How does one keep the courts from doing just what Publius says that they should not do? He continues: “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents which served to define and point out their duty in every particular case that becomes before them” (my emphasis). In other words, these strict rules and precedents, coupled with the clearly spelled out functions of the Supreme Court Publius noted above, should make the judicial the “least dangerous branch.” In terms that the layman can more easily understand, perhaps, the “trappings” of the court, i.e., the judicial robes, the wigs (in England), the wood-paneled courtrooms, the respect that the judges are shown—all of these tend to make the judges, if you will, “high priests” of the law, designated to protect the law, not to substitute their own will for either the Law (the will of the people) or legislation (the will of the legislators). But this is just what judicial activism is—a substitution of the will of the judge for that of the people as expressed in the Constitution, or the will of their representatives as expressed in legislation. If there is no irreconcilable variance between the fundamental law and the statute, then the Court has no business changing anything. If the judge disagrees with a policy of the legislature, the place to discuss that is in the legislature, not the Court. If the judge does not like a provision of the Constitution, the way to change that is through the amendment process, which is spelled out clearly in Article V.
Of course, this assumes that the judges believe that the manifest tenor of the Constitution IS fundamental law with the meaning the Founders intended it, and not their version of it. If a judge thinks that the Constitution is a “living document,” he or she clearly intends to insert his or her meaning of it (his or her will) into their interpretation of it. You have to wonder what these judges learned in law school. This is why I always wondered if lawyers were the best candidates for judgeships. Law schools generally train you only in case law. “The law is what the Supreme Court says it is,” was a famous statement by a judge, which shows that basically the last case, even if deviating from the Founders’ intent, is the meaning of the Constitution. However, good graduate schools of political science teach law too; the difference is that the Ph.D.s from those schools are not practitioners, but are much better read than most lawyers, meaning that they generally have actually read the original documents related to the founding, as well as studied English law, from which much of our law derives. I remember that at a pro-life conference, a paper was given by a very good pro-life Federal prosecutor, but he was challenged by a famous legal scholar, Walter Berns, who had a Ph.D. in Political Science with a concentration in law. The question was about the trend of the court cases in the life questions. Dr. Berns made a fool out of the prosecutor; not only did he have better Constitutional theory, showing great erudition, but even outdid the prosecutor on the case law. (Oh, you got me started.)
So, I ask the sitting judges and the senators who are to discuss the confirmation of Judge Sotomayor, what standards will you use to judge her qualifications: those of the Founding Fathers as seen in Federalist 78, or some other standards? 

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