Conservative unease with common law

By Nicholas Stephanopoulos

Who declared that a country's legal system is "poorly organized if a judge enjoys the dangerous privilege of interpreting the law or adding to its provisions"? Was it Sen. Lindsey Graham questioning Sonia Sotomayor about "judicial activism" last week? Justice Antonin Scalia in a biting dissent? No, it was the French lawyer Nicolas Bergasse in a 1789 report to France's National Assembly.

And what document said "the courts may not directly or indirectly take any part in the exercise of the legislative power" and "will always remain separate from the executive functions"? A proposal by President George W. Bush's Department of Justice? A bill submitted by congressional Republicans to prevent "legislating from the bench"? No, it was the famous Law on Judicial Organization enacted at the height of the French Revolution.

It is no coincidence that today's American conservatives sound like French revolutionaries when they talk about legal issues. To a startling degree, they have embraced continental Europe's historical skepticism of judges and courts.

Like 18th- and 19th-century Europeans, modern American conservatives tend to exalt the primacy of the legislature and statutory text. They argue that judges should be restrained in their rulings, ever vigilant against pushing their own policy preferences. As the 2008 Republican platform put it - in words that could have been uttered by Robespierre - "judicial activism is a grave threat to the rule of law, because unaccountable federal judges are usurping democracy ... and imposing their personal opinions upon the public."

The great irony here is that conservatives have embraced the continental European model over its traditional rival: the Anglo-American system of common law. Under the common law, judges were free to consider the consequences of their decisions and to try to realize important societal values.

Legal rules evolved over time as judges followed wise precedents and revised or rejected flawed ones. Statutes were respected but, where possible, interpreted so they did not conflict with the courts' decisions. William Blackstone, the greatest of the common-law thinkers, wrote that judges are "the depositories of the laws; the living oracles" responsible for deciding cases with "liberality of sentiment" so as to avoid "manifestly absurd or unjust results." Try to imagine Justice Scalia saying that.

Why have conservatives turned their backs on the system that served England and America so well for centuries? Aren't they supposed to value tradition and dislike radical new ideas - especially French ones?

Conservatives' usual response is that the common-law method no longer applies because America's written Constitution requires judges to defer to the framers. But written statutes that reflect the will of the people have always been a key feature of the Anglo-American legal landscape. Judges somehow managed to interpret and apply them for hundreds of years without being branded as black-robed legislators.

The Constitution's sweeping generalities - "due process," "equal protection," "freedom of speech" - are also evocative of Blackstone's "liberty of Englishmen," which common-law courts diligently defended. Constitutional interpretation is simply not as unusual as conservatives think.

A more plausible explanation for conservatives' current devotion to statutory text and the framers' intent is that they think these sources produce preferable outcomes.

It's important to note that conservatives did not completely reject the common-law method until the 1980s, when President Ronald Reagan announced his commitment to "strict constructionist" judges, and the Department of Justice ordered its attorneys to focus on "original intent." The '80s, of course, followed several decades of progressive Supreme Court decisions, many of which examined precedents and appealed to enduring American values in classic common-law fashion. It was only in the wake of these decisions that conservatives decided it was time to redefine what it means to be a judge.

But what's most important is conservatives' rejection of the common-law method, not the reasons behind it. University of Chicago law professor David Strauss has noted that "the common law is the most distinctive feature of our legal system and of the English system from which it is descended." Yet, almost without anyone noticing, a major legal movement and one of America's two great political parties have disowned the historical heart of Anglo-American law.

Even more shockingly, they have adopted in its place the continental European critique of judges who consult non-textual sources and take policy considerations into account.

Conservatives, of course, are entitled to embrace whatever model of judging they want. But the rest of us should be aware that their model would represent a breathtaking reversal. Especially with a Supreme Court nomination pending, we should remember that, for centuries, "judicial activists" were not villains, but rather the heroes of the common law.