A learned County Court judge in a book of memoirs recently said that the overwhelming amount of his time on the bench was taken up with people who are persuaded by persons whom they do not know to enter into contracts that they do not understand to purchase goods that they do not want with money that they have not got.
This overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary. In the legislative arena, especially when the country is closely divided, compromises tend to be the rule the day. But when judges rule this or that policy unconstitutional, there's little room for compromise: One side must win, the other must lose.
I could show how largely our laws and customs are based upon the laws of Moses and the teachings of Christ; how constantly the Bible is appealed to as the guide of life and the authority in questions of morals... Add a volume of unofficial declaration to the mass of organic utterances that this is a Christian nation.
I have no hesitation in applying a law regardless of what I might think about it, I think any good judge recognizes his or her place in our constitutional government, and that place is not to upset the will of the people as expressed through their elected representatives. So, I do not have any compunction about following the law as written by Congress.
There is one kind of judge. There is an independent judge under our Constitution. And the fact that they may have been a Republican or Democrat or an independent in a past life is completely irrelevant to how they conduct themselves as judges. And I think two centuries of experience has shown us that that ideal which the Founders established can be realized and has been realized and will continue to be realized.
The judiciary has a profound and humble, but vitally important role in interpreting the law and following the law, and putting aside personal beliefs and ensuring that the law has been faithfully executed, according to the real lawmaker, which is the legislature, or in the event of an interpretation of our highest law, the Constitution, by virtue of the people themselves.
The proponents of a mandatory retirement age and term limits have underestimated the degree to which the rational actor model applies to Justices. In making many decisions, as the empirical evidence demonstrates, Justices attempt to maximize their own preferences, whether based on policy considerations or other factors. The retirement decision is no exception. Scholars who dispute the applicability of the rational actor model to Justices have either not focused on the persuasive empirical evidence advanced by political scientists or have failed to consider all of the variables that touch upon judicial utility.
I am often asked what it was like to be a woman clerking for Justice Scalia. Much like being a man clerking for him is my easy answer. Justice Scalia believed in one simple principle: That law came to the court as an is not an ought. Statutes, cases and the Constitution were to be read for what they said, not for what the judges wished they would say. Each of his opinions needed to conform to that principle and to be written clearly, forcefully and accurately. If you could help him with that, you were useful to him. If not, then not. When we were working, we sometimes joked that he could not even remember our names.
Judges should always behave judicially by adjudicating, never politically by legislating. I leave policy to policymakers. They're preeminent, but they're not omnipotent. In other words, lawmakers decide if laws pass, but judges decide if laws pass muster. There's a fateful difference between activist judges who concoct rights and active judges who dutifully protect the rights our Framers actually enshrined.
I think that the best judges are the ones that seek to apply precedent in good faith. I think most judges do that. But that is something that has to be done in good faith without skewing the precedent one way or the other. At the same time, there has to be a respect for the work of the district courts and not take an ivory tower approach to the review of what happens there. Those judges are the ones that see the people before them. They see the witnesses.