In 1970, in the case of Javins v. First National Realty Corp., Judge Skelly Wright, of the Court of Appeals for the District of Columbia, issued something of a landmark ruling. Acting on precious little precedent and a whole lotta judicial swagger, Skelly Wright cast aside several centuries of common property law and declared that urban landlords are bound to their tenants by an "implied covenant of habitability." Meaning that the landlord, and not the tenant, is responsible for basic upkeep and management of the property.
However right the decision was in principle, it was literally unprecedented. Which is not surprising for Skelly Wright, a poster-boy for judicial activism. Javins was among the most activist decisions of one of the most activist judges in American history. Rightly deserving of opprobrium and much hemming and hawing about "making law, not interpreting it," right?
Not so fast.
Within a few years of Javins, many states had incorporated Skelly Wright's decision into law. Statutory law, that is -- the kind made by legislatures. Now, 34 years later, it is so widely accepted and legislatively codified we never give Javins a first, let alone a second, thought as we dial up Mr. Landlord to fix the toilet.
The point of this story is not, if you were wondering, that judges know what's best for us. Not exactly that. It is, instead, a suggestion that the judiciary's job may be more than merely interpreting and applying the laws the legislature hands down to it. The judiciary may also rightly provide items for the legislative agenda. And this side of the job may sometimes require active inquiry into problems the legislature has not yet encountered.
On paper, the legislature makes law, the executive administers it and the judiciary applies it. In truth, however, all three branches make law in some sense--by legislation, rule-making, or setting precedent. Two of the three branches deal every day with real-life problems relating to the law. The legislature is not one of them.
The executive branch, as administrator, deals with the front-end application of the law--setting rules, policing, etc. The judicial branch deals with the tail-end, determining culpability and resolving disputes. I believe this division of labor is best expressed by the introduction to Law & Order.
Now then. It has long been accepted that a part of the executive's role in administering the law is advising the legislative branch on needed legislation. While the legislature sits around yelling at each other and holding hearings, the executive is out there on the streets learning about what needs to be done. Its ideas about needed legislation, therefore, are unquestioned. Well, sure, legislators question them, but not with accusations of "executive activism" and "interfering with the proper role of the legislature."
Why is this not the same for the judicial branch? Every day, judges across the country hear genuine disputes between adversary parties, often involving factual situations no legislature could imagine when it passes a statute. In such situations, the judiciary can help the legislature in its duty as law maker. They can't very well propose bills to the legislature. But they can seek out a fair resolution and hope the legislature takes notice (which it often does).
Such decisions help the legislature in two ways. First, by calling to its attention a situation it may not have contemplated. Second, by putting forth a solution to the situation that the legislature is free to either codify or overturn. The list of statutes that originated with court decisions such as Javins is too long to contemplate, and most are rather mundane. The legislative overturnings of court decisions have been far more dramatic--all the way from the repudiation of Dred Scott by the 13th and 14th amendments, to the recent actions of the Florida legislature in keeping Terri Schiavo alive. The judiciary plays as vital a role as the executive does in helping impell the legislature to action, whether or not its decisions are upheld. Think of this next time you call a judge "activist."
Posted by FLOG at March 15, 2004 1:13 AM | TrackBack