Frankness About Activist Judges

Professor Geoffrey Stone calls for frankness in discussing what judges in our country do. Focusing on federal constitutional law, he explains that the notion of judges as “umpires,” calling balls and strikes, is usually disingenuous.

Much federal constitutional text is not self-defining so engaging with those parts must be “active.”  Political operators are responsible for misleading a public discourse suggesting the deceptive notion that “liberal” judges are “activists” who “make up the law” while “conservative” judges simply “apply the law.”

This canard is not limited to federal constitutional law and is revealed clearly in a prominent recent opinion written by conservative Judge Frank Easterbrook.   Easterbrook faced a 40-year old statute setting a “fiduciary” standard to certain fee arrangements of mutual fund advisers.

Disregarding the statute’s plain text and meaning, and decades of uniform judicial interpretation, Easterbrook went out of his way to declare that, in his judgment, that statute is bad policy.  In a start of judicial activism, he made up a new definition of the word fiduciary, to mean making disclosure and “playing no tricks,” however outrageous the fees may be.

The Supreme Court unanimously vacated that opinion as erroneous, reminding the federal judge that he is not in the legislative branch and has no vote on the wisdom of federal statutes. His job is to apply the law as written, not make it up as he believes it should be.

When a federal statute’s language is that clear, judges don’t even need to be umpires to apply it, and there is not even much need for active engagement with the text. Yet Easterbrook showed the fiercest sort of judicial activism, elevating his own ideology over the plain statutory text.  Every educated 10th grader in the country would recognize that as a violation of basic constitutional design.   That is neither conservative nor liberal, but hyper-activist.

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4 Responses

  1. rusty says:

    Gives new meaning to the word “frankness.”

  2. The problem isn’t “activism”, we don’t want judges to be passive in the face of constitutional violations. (Well, “we” do if we’re officeholders, I suppose, which explains a lot about the sort of people who wind up on the bench…) The problem is “dishonesty”.

    And I’d be careful with that educated 10 year old rule; There’s an awful lot of modern constitutional jurisprudence which would fail it in a heartbeat.

  3. Thomas says:

    That’s not a very good description of the case at all.

    The Supreme Court opinion says that “the Seventh Circuit panel thought that the phrase “fiduciary duty” incorporates a standard taken from the law of
    trusts.” So to the extent we are to find that Supreme Court opinion persuasive, aren’t we to believe this part as well, and thus find your claim that Easterbrook “made up a new definition” of fiduciary to be inaccurate?

    The Supreme Court’s opinion addressed a debate between Judges Easterbrook and Posner on the subject of the case, and was not addressed solely to Judge Easterbrook: “The debate between the Seventh Circuit panel and the dissent from the denial of rehearing regarding today’s mutual fund market is a matter for Congress, not the courts.”

    As for the clarity of the standard enacted in the law, I think we can fairly say that the Supreme Court does not find it as clear as you do. The Court says “The meaning of §36(b)’s reference to “a fiduciary duty with respect to the receipt of compensation for services” is hardly pellucid…” and concludes, with significant understatement, that the Gartenberg standard, which it says best reflects the meaning of that text, “may lack sharp analytical clarity.”

  4. Brett says:

    your general point may be reasonable, but using the easterbrook case to support it is highly misleading. He did not disagree with the statute. He was applying fiduciary duty in the setting of compensation, which as he points out is a difficult thing indeed. Bad law professor!!