In Defense of Judicial Prudence

Nicholas Buccola, Linfield College
Aila Wallace, Lewis & Clark Law School (Student)

Abstract

This essay has two basic aims. First, we want to show that the three major theories of judicial review – majoritarianism, perfectionism, and originalism – have at their core commitments to “cardinal virtues” – temperance, justice, fortitude. In the first part of the essay, we describe each of the cardinal virtues in conjunction with a description of each judicial philosophy and demonstrate how each virtue fits at the center of each philosophy. Second, we want to show how a full appreciation of the cardinal virtues should lead us to endorse “prudentialism” as the best approach to judicial review in the American political system. We contend that each of the judicial philosophies discussed (along with the corresponding virtue) captures something vital to the American constitutional design and that prudentialism is the only judicial philosophy that fully respects that fact. A good judge is a prudent judge. By this, we mean that a good judge is a judge who, when confronted with hard cases, is pulled in many directions at once but who has the prudence to make the best choice available in a particular set of circumstances.

Majoritarianism – Temperance (Restraint) Perfectionism – Justice Originalism – Fortitude Prudentialism – Prudence

Each approach is animated by a commitment to a cardinal virtue.

The majoritarian judge (Frankfurter, Holmes) contends that judges must practice restraint. For the majoritarian, this is necessary because of our commitment to democracy. The judge should not get carried away with his power and trample on the will of the people.

The perfectionist judge (Brennan, Marshall – Liberal Perfectionists / Thomas, Scalia – occasional Conservative Perfectionists – see Affirmative Action cases) is animated by a commitment to Justice. He believes that judges should use their power to vindicate what is Right. The perfectionist rejects majoritarian deference to democratic authority because of the special role judges play in our constitutional scheme. Judges are supposed to protect minorities from abuses of majoritarian power. How do we determine what qualifies as an abuse? Because the Constitution includes some vague language, the judge must rely on his or her view of Justice (his or her conception of political morality).

The originalist judge (Thomas, to a lesser extent Scalia) is animated by a commitment to fidelity to the written text. He believes judges must have the fortitude to respect the limits provided by the Constitution. Recall that Justice Scalia calls himself a “faint-hearted” originalist because he is unable to always follow originalism where it would take him. This suggest that a true originalist would be “lion-hearted” or, in the parlance of our times, courageous. The originalist judge would have the fortitude to follow originalism down that road. The judge ought to do this, the originalist says, because our system is rooted in the idea of the rule of law. Judges, the originalist contend, are not guardians of democracy or Justice; they are guardians of the rule of law. This means that sometimes they have to “hold their noses” and uphold what they take to be unjust laws (contra the perfectionist) and it means that sometimes they have to “hold their noses” and strike down laws that might be sensible but are inconsistent with the written constitution (contra the majoritarians).

The prudential judge does not believe the judicial task can be reduced to one cardinal virtue (contra all three approaches described above). Instead, the prudentialist contends that a good judge will be animated by elements of all three approaches described above. Prudence, the “mother of all virtues,” is the ability to judge with regard to appropriate actions at a given time. A good judge (in the context of the American system of government) must be prudent in the sense that he or she must appreciate that our constitutional design is rooted in commitments to democracy, natural justice, and the rule of law. A good judge is a conflicted judge. When confronted with a hard case, she should feel herself pulled in many directions at once. At the moment of decision, a prudent judge will make what he/she believes to be the best choice all things considered. This view confirms what common sense and decades of empirical research already tell us: that the process of judging is, in an important sense, open-ended. It is not mechanical; it is complex.