Michigan Supreme Court Justice Stephen J. Markman speaks on the judicial role

By Roberta M. Gubbins Legal News "There is a great and important ongoing debate in our country," said Michigan Supreme Court Justice Stephen J. Markman, speaking to the members of Thomas M. Cooley Federalist Society and their guests at Cooley Law School on March 24th. "It's a debate reflected in the tug and pull between recent Presidents and Congress over Judicial nominees, by increasingly expensive and ill-tempered state judicial campaigns, and by ever more divisive rhetoric among politicians over the judiciary." "A sense of fairness is indispensible to a jurist. But what does that mean? Does it mean a kind of case by case fairness in which one's judicial fairness is irrelevant or is a consistent and coherent philosophy an indispensable element of judicial fairness? "My first random thought on the judicial role is this: The role of a judge is not to do justice, it is to do justice under law." "Each of us in this room has his or her sense of right and wrong, of conscience, of what is equitable, and what ought to be the organizing principles of a just society. I and every other jurist I have known share these personal views. Each of us has our own sense of values, but none of us has been elected to impose our own sense of justice on the legal system." "Felix Frankfurter once remarked 'The highest example of judicial duty is to subordinate one's personal will and one's private views to the law.' The responsible judge must subordinate a private sense of justice to the pull of justice of our democratic and constitutional institutions. That is what justice under law means." "Random thought number two: To paraphrase our first great chief justice, John Marshall, in 1803, the role of the judge is to say what the law is, not what it ought to be." "President Clinton remarked on his relationship with Monica Lewinski, 'it all depends on what the meaning of the word is is.' Whatever 'is' is, it is distinquishable from what 'ought' is. The judicial power is to say what the law is. The legislative power is to say what it ought to be." "The judge is the interpreter of the law, not its maker. The eternal judicial temptation is to render more consistent and to make more rational laws emerging from representative bodies in which no consensus or agreement was possible. To succumb to this judicial temptation is to succumb to the 'ought' in preference to the 'is.'" "Random thought number three: a necessary truth of our constitutional system is that the law maker has the right to act imprudently or unwisely." "That is, the people have the right to act in a manner that a judge or justice think was imprudent or unwise without automatically being subject to correction. The judge is not society's adult supervisor. We, the people, get to make decisions--the right to self government necessarily includes the right to make mistakes and dubious decisions, and the judge, in Justice Cardozo's words, 'takes the law as he finds it.'" "Random thought number four: few judges will acknowledge a willingness to substitute their own judgment and preferences for those of the law." "No judge says 'I don't care what the law says, I'll do my own thing.' However there are a number of rhetorical shortcuts by which some contemporary jurists who may have a different perspective on the 'is' 'ought to be' debate often, inadvertently, achieve the same results." "Some judges, for example, may seem to avoid the constraints of the law by relying on allegedly countervailing 'public policies' which (can be) expressions of what the judge believes 'ought' to be public policies but which never were enacted into law." "Other judges may rely on legislative history, in which the views of a single legislator expressed on the floor of the legislature may trump the words of the law. Still other judges may invoke equity or fairness despite the fact the legislature is obviously of a different perspective as to what is fair or equitable." "Other judges will purport to balance laws and rights, while others will purport to interpret laws broadly or narrowly or find complex and difficult laws ambiguous so their own personal discretion can be more easily exercised. Another short cut to overcoming the written law is to reference the spirit of the law rather than its language as if by conjuring something up from the ether, they can alter what is actually contained in a statute." "My final random thought: although the driving force of my position is that judges must restrict themselves to saying what the law is, rather than what it ought to be, and that judicial power only encompasses the 'is' authority, there is another argument, which is that the 'is' power is the only power that, in my judgment, is compatible with the equal rule of law." "A critical strength of a judicial philosophy committed to saying what the law 'is' is that it establishes, before the case is heard, a reasonably clear rule of judicial decision making. That is, the judge will decide cases by attempting to discern the reasonable meanings of statutes, ordinances, regulations and precedents, and that he will do so by using traditional rules of interpretation including consideration of dictionary meanings of words, the surrounding context of words, the organization and structure of statutes, rules of grammar, syntax, and punctuation, and other techniques by which people ordinarily attempt to understand what they are reading." "Under a non-interpretive approach to judicial law, in which there are many sources and standards for indentifying the law apart from its language, there are no consistently applied rules by which the judge promises to comply before the case is heard. He may promise to be fair but there are no rules as to how fairness will be achieved. There is a promise that he will view each case on a case by case basis utilizing whatever tools are necessary as the case may be." "I would respectfully suggest that if this is what the promise is, the suspicion can never be wholly avoided that these varying tools and approaches will become a function of the outcome preferred by the judge in his or her sympathies for the parties and causes before him. Any rules that are identified are only identified after the case. They may or may not have been followed in yesterday's case and they may not be followed in tomorrow's case. Justice Frankfurter observed that 'exactness for the use of words is necessary for all serious thinking.' I would submit that exactness in the understanding of words is the basis for all serious exercises of the judicial role." "A judicial philosophy committed to the idea that the words of the law must be taken very seriously indeed by the judge is an essential element in achieving the very fairness that he exalts or the appearance of fairness," Justice Markman said. "The losing parties can be assured they lost, not because of the 'cut of their jib' but because the law was against them." "For a judge to subordinate his own predilections to Jefferson's 'chains of the constitution' is to, first, insure that words do not mean different things based upon a judge's sympathy or lack thereof for a party or cause before him, second, to promote the likelihood of consistent decision making, and third, to establish the rule of decision making that proceeds the case rather than one that might appear to arise as a function of the outcome possibly preferred by the judge. Questions from the audience: Q) What is your opinion on the new health care law? Justice Markman commented on the following issues: 1) "There is a substantive issue as to whether or not the so-called private mandate is compatible with the Constitution. The principal argument that it is compatible relies on the commerce clause. I think the commerce clause is going to be the principal focus of that issue." 2) "There are also issues concerning whether or not the procedures by which the Congress placed this on the desk of the President are compatible with Article 1 section 7 of the Constitution, which establishes the basic procedures for how a bill becomes a law. That argument focuses on whether the House and the Senate agreed on the same package. 3) "Assume that some or all of these issues present Constitutional and cognizable issues, who can raise them? Can they be raised by the Attorneys General? Are there barriers to that and if so, can they be raised by the individual taxpayer? Or those subject to this private mandate?" "I believe all of these will be addressed by the Supreme Court at some time in the future. In terms of how they decide the case, we will wait and see what happens." Justice Stephen J. Markman was appointed Justice of the Michigan Supreme Court on October 1, 1999. Before his appointment, he served as Judge on the Michigan Court of Appeals from 1995-1999. Prior to this, he practiced law with the firm of Miller, Canfield, Paddock & Stone in Detroit. From 1989-93, he served as United States Attorney in Michigan after being nominated to that position by President George Bush and confirmed by the U.S. Senate. Justice Markman was re-elected to the Supreme Court in 2000 and 2004. His present term expires January 1, 2013. Published: Thu, Apr 8, 2010

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