Dan Kelly’s most recent post, probing the conflict between judicial activism and self-governance, brought to mind an oft-recounted tale. The most common formulation is found in Judge Robert Bork’s 1990 book The Tempting of America:
There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”
Hoping to include this exchange between two of America’s towering legal figures in a response to Dan’s piece, I did a quick search to fact-check my recollection of the story. Lo and behold, it seems Judge Bork’s account is but one of several. That in itself isn’t so big a deal…unless one of those other accounts is Judge Learned Hand’s:
I remember once I was with [Justice Holmes]; it was a Saturday when the Court was to confer. It was before we had a motor car, and we jogged along in an old coupe. When we got down to the Capitol, I wanted to provoke a response, so as he walked off, I said to him: “Well, sir, goodbye. Do justice!” He turned quite sharply and he said: “Come here. Come here.” I answered: “Oh, I know, I know.” He replied: “That is not my job. My job is to play the game according to the rules.”
The differences between the two versions—between law and rules, between playing and applying—are certainly worth further exploration. (Which, as my search revealed, at least one person has already done.) But both versions affirm Dan’s basic point: deviating from known standards is a fundamental subversion of the judicial role. The temporal framework he used to illustrate this point is particularly helpful. Our system of government is structured to pursue past-, present-, and future-regarding values.
I think it’s important to add another layer to this framework, one gives us a clearer understanding of the purposes, and therefore expectations, of our governing institutions. The threefold temporal distinction corresponds to a division of political values that serves as a structural organization of the ends of constitutional self-government. The legislature is designed to express (some form of) the popular will, in pursuit of the goal of consensual governance; the executive is designed to expeditiously implement the law and protect the country; and the judiciary is designed to maintain the rule of law, bringing to bear on the present polity the decisions it previously made. With this understanding we can see that each branch is intended to pursue an equally important value, and that any departure from these institutionally-induced intentions can deeply influence the nature and prospects of our politics.
To this point, all I’ve said is that I agree with Dan. And I’d be happy to leave it there! But, as I intend to push this same point further in the future, I’ll conclude by saying that the structural rationale of our government assumes a certain kind of political culture. And with that, I have a topic for my next post.