Columns reveal lamentable developments for our legal and political systems

In two of his recent articles, appellate attorney Myron Moskovitz has generously provided us with his valuable insights regarding: (1) The true bases upon which most judges actually make their decisions ("From legal formalist to realist," May 6); and (2) the growing concern of members of the political branches of our federal government (i.e., the legislative and executive branches) that the unelected judicial branch is too often interpreting statutes and the Constitution based not upon the intentions of the drafters of those laws, but rather upon the judges' own personal "predilections" ("What if... ?" June 4). These two articles are closely related to one another in that the first article presents a microcosm and the second article a macrocosm of the manner in which many judges decide cases today. The first article helpfully sheds some light on the reasons why there has been a growing concern about the role which the judicial branch has assumed in our government.

In his first article, Mr. Moskovitz kindly shares how his decades of experience have revealed to him that judges today: (a) are less influenced by precedents; (b) more concerned with the consequences of their decisions (i.e., "doing the right thing") than discussing "the law"; (c) like to rule "on the side of the angels"; (d) when they believe "a certain result is the fair one" "will often find a way to reach it" such that they "might bend the words of a statute a bit or reinterpret some dicta to justify that result"; and yet (e) also want to write their opinions to look "like they are just following the law -- which is what they prefer to project." Based on these honest revelations, Mr. Moskovitz has evolved from being a "legal formalist" (i.e., a person who focuses on legal principles, rules, and precedents) in his early years as an appellate attorney into a "legal realist" (i.e., a person who focuses on the above-listed factors which actually motivate most judges). See also Roscoe Pound, "Law and the Science of Law in Recent Theories," 43 YALE L.J. 525 (1934). Mr. Moskovitz notes that this evolution has served him well in the success of his appellate briefs.

I do not doubt the accuracy of Mr. Moskovitz observations and conclusions nor do I deny that it is of vital importance for attorneys to write their briefs in a manner that will most effectively and professionally advance their clients' causes. Yet I do find it highly lamentable that many judges are now going well beyond their limited, legitimate role of following the law, respecting precedents, and honestly interpreting statutes and the Constitution to surreptitiously pursue more ambitious, nebulously unlimited projects such as "doing the right thing," advancing "fairness," and/or "being on the side of the angels." Such projects constitute a results-oriented (as opposed to consistent, principled and/or due process) approach to judicial decision-making that, in its rawest form, leads to the ends justifying the means. It reminds me of a case discussed in law school where all of the legal principles, precedents and facts clearly favored an apparently unsavory litigant. Nevertheless, the court ruled against that litigant in favor of an "angel" litigant. Our professor explained that the legal principles in that case might have been trumped by a cynical, realpolitik maxim, to wit, "pigs don't win." This begs the age old question: Do we have a government of laws or a government of men? Will our judges do what the law commands or what those judges think is the "right thing." If our judges will always rule in favor of those who they, rightly or wrongly, deem to be "angels" no matter what the law and facts are, then why should those who might somehow be regarded as "pigs" ever entrust their cases to our courts?

This leads to Mr. Moskovitz's second article, which deals more macrocosmically with the growing concerns of many members of the executive and legislative branches of our federal government, on both sides of the political spectrum, that the unelected members of our judiciary (including even district court judges) are frequently and unilaterally: (a) invalidating congressional statutes (e.g., regarding election reform) and executive actions (e.g., regarding immigration); and (b) interpreting the Constitution in a broad manner (e.g., as Mr. Moskovitz notes, regarding the Second Amendment and the right of privacy). Congress and the president, as the elected representatives of our government, have a right to expect that their statutes and the Constitution will be interpreted -- not rewritten -- by the courts in accordance with the intentions of the laws' drafters. When federal judges fail to recognize their necessarily limited interpretive role in this regard, they disrupt our entire system of democratic self-government by: (a) thwarting the legitimate will of the people; and (b) discouraging Congress from performing its primary function of wisely and courageously enacting the necessary laws of our land (whenever Congress succumbs to the unhealthy notion that it should not bother to do so because the courts are going to do their own thing in the end anyway).

In summary, Mr. Moskovitz's articles suggest two unfortunate developments in our legal and political systems. His first article suggests that, if judges continue to be more focused on "doing the right thing," advancing "fairness," and "being on the side of the angels," rather than following the law, respecting precedent and honoring legislative intent (as all litigants reasonably expect the courts to consistently do so that the public can confidently know what the law is), then appellate attorneys will be discouraged from writing briefs that are straightforwardly and rationally based on the laws and facts of the case. His second article more broadly suggests that if the federal courts continue to be perceived by elected officials as rewriting the laws of the land (based on the judges' own "predilections") rather than interpreting them, then the two political branches of our government may, at length, persuade themselves to react against the judicial branch by reducing its funding, limiting its appellate jurisdiction, increasing the number of Supreme Court justices (as occurred in the 1860s), and/or, in extremis, not enforcing the orders of the courts (as Presidents Jackson and Lincoln were able to do with impunity since the Congress was not willing to impeach them over it). Hopefully, for both appellate brief writing purposes and vitally important constitutional reasons, the judges of our nation will rededicate themselves to their solemn roles of following the commands of the law and faithfully interpreting those laws.