Jan. 23, 2015 – The judiciary is ill-prepared to legislate from the bench and should leave lawmaking to those specifically elected to assess public preferences and set policy, according to the chief justice of the Michigan Supreme Court.
“It is the duty of the court to say what the law is, and not what it should be,” Robert P. Young Jr. told University of Houston Law Center students Thursday during a presentation sponsored by the Federalist Society as part of its Judicial Lecture Series.
“I can tell you from personal experience that it is hard enough to determine what the written law is, let alone the unwritten law,” he said during his lecture titled, “The Challenge of the Common Law.”
Young, who is serving his 17th year on the state’s high court, said that aside from the occasional amicus brief from an outside party, he and four “20-something” clerks sit in a room and decide how existing common law applies to any given case. “Most of us are not economists,” he said. “Most have never run a business.” Legislators, on the other hand, bring varied backgrounds and personal experience to the process, gauge public priorities and preferences by holding hearings, debate the pros and cons, and vote in public.
In answer to a question from the audience, Young said there are basically two schools of thought in the judiciary today: the Rule of Law branch that attempts to strictly follow the law whatever it is, and the “Rorschachian” element that looks at the law and then reacts as to how they feel it should be. “That’s kind of the great divide,” he said.
“What is the role of the judiciary in a constitutional republic?” he asked. “That’s the challenge of our time.”
In any case, he said, judges must always ensure that their decisions do no harm with unintended consequences.