Markandey
Justice Kagan's Cri De Coeur
Markandey Katju 27 Oct 2022

Justice Elena Kagan, an Associate Justice of the US Supreme Court, has of late been speaking out on contentious legal issues, and the need for compromise and finding common ground among the justices in the US Supreme Court.

Thus, speaking in Pennsylvania University last Friday she said 
“Time will tell whether this court can get back to finding common ground” and “to ratcheting down the level of decision making so that we can reach compromises".


The 'liberal' Justice Kagan has repeatedly warned over the last month that courts risk legitimacy and look political when justices needlessly overturn precedent and decide more than what a case requires.


Earlier, speaking on Wednesday in Chicago in the North Western School of Law, Justice Kagan warned that unsound reasoning and politically convenient conclusions have infected the Supreme Court’s recent opinions and are doing damage to the court’s standing with the American public.
“When courts become extensions of the political process, when people see them as extensions of the political process, when people see them as trying just to impose personal preferences on a society irrespective of the law, that’s when there’s a problem — and that’s when there ought to be a problem " she said.


Justice Kagan was quite happy when she was in the majority in the court, but when she finds herself in the minority she has started making plaintive, grief stricken, laments.

But let us examine whether her complaint is justified, and whether there can be any compromise.

The positivist school of jurisprudence states that law should only be made by the legislature, not the judiciary. The judiciary's job is only to interpret and enforce the law, not to make it.

On the other hand, the sociological school of jurisprudence states that judges can make law.

There can be no compromise between these two schools. Either one believes that judges can make law, or that they cannot.

The present majority in the US Supreme Court consists of judges belonging to the positivist school of jurisprudence. Justice Kagan belongs to the minority ( Justices Sotomayor, Jackson and herself ). It would be wrong to call the views of the majority political, or that they are personal preferences. The judges of the majority hold that judges should not make law. Does that make them political ? 

I submit that the proper role of judges is that propounded by the positivist school, otherwise every judge can start making law at his own whim and fancy, which can only lead to chaos. So self restraint is required of judges.

Unfortunately, for some time judges belonging to the sociological school were in the majority in the US Supreme Court, with the result that the court had virtually become a legislature, making laws according to their own fancies, e.g. the decisions in Roe vs Wade, which legalised abortion, or Obergefell vs Hodges, which directed all states in USA to validate gay marriages, something which was legitimately in the province of the legislature. So the present majority in the court has only restored the proper role of the judiciary.


Now the tide has turned, with judges of the positivist school in the majority. 

The positivist school of jurisprudence maintains that judges should excercise restraint in the discharge of their functions, and not encroach into the domain of the legislature or executive, in view of the separation of powers between the three organs of the state under the Constitution.

Of the three organs of the State, the legislature, the executive, and the judiciary, only the judiciary has the power to declare the limits of jurisdiction of all the three organs. This great power must never be abused or misused, but should be exercised by the judiciary with the utmost humility and self-restraint.

Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing inter-branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activism s unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of inter- branch equality.

Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach into the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored. If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators. This would be counterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects.

The constitutional trade off for independence is that judges must restrain themselves from the areas reserved to the other separate branches. Thus, judicial restraint complements the twin, overarching values of the independence of the judiciary and the separation of powers.

In Lochner vs. New York 198 US 45(1905) Mr. Justice Holmes, the celebrated judge of the U.S. Supreme Court in his dissenting judgment criticized the majority of the Court for becoming a super legislature by inventing a `liberty of contract theory' thus enforcing its particular laissez faire economic philosophy. Similarly, in his dissenting judgment in Griswold vs. Cannecticut 381 U.S. 479, Mr. Justice Hugo Black warned that unbounded judicial creativity would make the Court a day-to-day Constitutional Convention . In `The Nature of the Judicial Process Justice Cardozo remarked : The Judge is not a Knight errant, roaming at will in pursuit of his own ideal of beauty and goodness . Justice Frankfurter pointed out  thatgreat judges have constantly admonished their brethren of the need for discipline in observing their limitations (see Frankfurter s `Some Reflections on the Reading of Statutes ).

In this connection we may usefully refer to the well-known episode in the history of the U.S. Supreme Court when it dealt with the New Deal Legislation of President Franklin Roosevelt. When President Roosevelt took office in January 1933 the country was passing through a terrible economic crisis, the Great Depression. To overcome this, President Roosevelt initiated a series of legislation called the New Deal, which were mainly economic regulatory measures. When these were challenged in the U.S. Supreme Court the Court began striking them down on the ground that they violated the due process clause in the U.S. Constitution. As a reaction, President Roosevelt proposed to reconstitute the Court with six more Judges to be nominated by him. This threat was enough and it was not necessary to carry it out. The Court in 1937 suddenly changed its approach and began upholding the laws. `Economic due process met with a sudden demise.

The moral of this story is that if the judiciary does not exercise restraint and over-stretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact the mere threat may do, as the above example demonstrates). The judiciary should, therefore, confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in non-judicial settings.

I submit that Justice Kagan's outcry is unwarranted. There can be no compromise to the proposition that judges cannot make law.

The Indian Supreme Court, too, has been making laws e.g. by interpreting Article 21 to the Constitution by inserting substantive due process in it. 
Thus, the Court has said that the word life in Article 21 means a life of dignity. But that is amending the Constitution, something which can only be validly done by Parliament vide Article 356. Moreover, what is a life of dignity ? Every judge can hold something to be part of a life of dignity, according to his whims and fancies. 

Also, the court has held that the words ' procedure established by law ' in Article 21 means a procedure which is fair, just and reasonable. Here again the Supreme Court has amended Article 21, by adding words to it. Moreover, what is just, fair and reasonable ? Different judges can have different interpretations about it. 
The Supreme Court has created rights, e.g. the right to privacy, vide Justice Puttaswamy vs Union of India. But creating rights is surely the job of Parliament, not the Court. 
I respectfully submit that all these decisions have to be revisited, including the decision in Maneka Gandhi vs Union of India, and the proper role of the judiciary has to be reconsidered, in the light of the principle of separation of powers, vide Divisional Manager, Aravali Golf Course vs Chander Haas

By Justice Katju, former Judge, Indian Supreme Court
Did you find this write up useful? YES 0 NO 0
Gopal lal   28 Oct 2022 9:20pm
Balance view on jurisdiction of judiciary..regards
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