by Cynthia Price
Legal News
Supreme Court Justice Stephen J. Markman feels passionately about the role of the judiciary, and he shared his beliefs with a packed room at Thomas M. Cooley Law School March 15, sponsored by the student chapter of The Federalist Society.
Markman has served as a justice on the Michigan Supreme Court since 1999, when he was appointed; he won his 2000 election and was re-elected in 2004. His current term does not expire until January 1, 2013. He has practiced his judicial philosophy during his entire tenure.
He formed his opinions over a distinguished legal career encompassing an earlier judicial seat on the Michigan Court of Appeals (1995-1999), a stint at Miller Canfield in Detroit, service as a U.S. Attorney in Michigan from 1989-1993, and, from 1985-1989, a position as an Assistant Attorney General of the United States.
That early experience included heading the Justice Department’s Office of Legal Policy, the main policy development office in the department and coordinator of the Federal judicial selection process. Before that he was Chief Counsel of the Congressional Senate Subcommittee on the Constitution and Deputy Chief Counsel of the U.S. Senate Judiciary Committee.
Markman also traveled to the Ukraine, sponsored by the State Department and the American Bar Association, to assist that country with creating a constitution after the collapse of the Soviet Union, and has taught for years at Hillsdale College in Michigan, as well as written numerous law review articles.
He has combined this busy career with a lot of thought about “The Judicial Role: Myths & Realities,” which he shared with the assemblage at Cooley.
Markman began his talk by sharing that when he made the contention at a recent conference that if judges and justices are to be elected by a popular vote candidates should be allowed to debate, a colleague from New York disagreed. That justice felt that all the public really needs to know is whether the judge can be fair or not.
But Markman disagreed strongly, because he feels the public also has a right to know where each candidate stands on the philosophical question of the boundaries of a justice’s role. He feels it is critical to know where candidates stand on the scope of what the judiciary should and should not do.
Where Markman stands is expressed by one of his first statements at the March 15 gathering: “The role of a judge is not to do justice, it’s to do justice under law. Each one of us in this room has his or her own innate sense of justice – I and every other judge I’ve known has strong personal values – but none of us has been elected to impose our own sense of justice.”
He subscribes to former U.S. Supreme Court Justice Felix Frankfurter’s remark, “For the highest exercise of judicial duty is to subordinate one’s personal pulls and one’s private views to the law of which we are all guardians.” Or as President Franklin Delano Roosevelt put it, “justice under the constitution not over the constitution.”
Markman feels that judges must confine themselves to interpretation of the statutes passed by lawmakers, to deciding what the law is, not what it should be. Even when laws have become outdated because societal views have changed, it is up to the legislators to fix that, and does not fall anywhere within the judicial purview.
He delineates this as the “is versus ought” debate, and he feels very strongly that the judiciary must stick with what “is” even when that entails supporting inconsistency or downright folly.
“A necessary truth of our constitutional system is that the lawmaker has the right to act imprudently. The judge is not society’s adult supervisor,” Markman said.
Markman gave as an example his 2008 vote to sustain Michigan’s early primary. He said that the Michigan Supreme Court justices on the 4-3 majority who upheld the primary were as aware as anyone else was of its futility and that it was in contravention of Democratic Party rules — as well as how costly it would be. The justices in the majority simply felt that it was not up to them to second-guess the legislature.
“The right to self government necessarily entails the right to make dubious decisions,” Markman feels, and the judicial branch must be careful not to overstep the authority granted it by the U.S. Constitution.
Says Markman, “It’s all elementary civics but we lose sight of that.”
Beyond even that, however, it is Markman’s opinion that such judicial limitations are the only way to ensure decision-making consistency to those coming before the court. While many laws include sections that are more ambiguous and open to widely varying interpretations, Markman feels that for the most part, sticking with the “is” philosophy results in less uncertainty for contesting parties.
“The advantage to a commitment to staying with what the law is — call it traditionalism or originalism or texturalism — is that it establishes before the case an atmosphere to decide the case, that the judge will decide the case by trying to determine the reasonable meaning of the law itself.”
How does a judge do that? He or she relies on traditional rules of interpretation, and on identifying with precision what words mean.
Markman quoted Justice Frankfurter again, “Exactness in the use of words is the basis for all serious thinking.”
When asked about how his philosophy relates to common law powers of the Federal courts, Markman said he would like to see a lot more debate on what the limits of that authority are. He suggested to people writing for law reviews that how to develop the common law was a fertile topic for study, to help reconcile the very different ideas about it. “I think the presumption is always very strongly in favor of existing law, and it should be done in a limited, restrained way,” he concluded.
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