Oregon's high court needs 'legal realism'.

Byline: Jack Roberts For The Register-Guard

In 1937, a constitutional crisis stalked America as President Franklin Delano Roosevelt contemplated a full-scale attack on a United States Supreme Court that had invalidated 12 major pieces of New Deal legislation in less than 18 months. Roosevelt's plan - dubbed his `court packing scheme' - would have allowed him to increase the size of the court from 9 to 15. With the appointment of six new judges, FDR was confident he could turn the 5-4 and 6-3 votes against his legislative agenda into solid majorities that would support anything he wanted.

This court-packing scheme failed in part because even many partisan Democrats valued the independence of the judiciary more than party loyalty. But it also failed in large part because the Supreme Court itself got the message as two of its members began demonstrating a newfound respect for judicial restraint, curtailing their judicial activism on behalf of conservative ideology and suddenly voting to uphold measures they previously would have struck down.

This shift in voting alignment led pundits to quip, `A switch in time saves nine.' The change was further reinforced when two of the most conservative members of the court resigned within the year. The combination of the shift in swing votes and the appointment of two new judges resulted in a shift in the court's prevailing philosophy from judicial activism to judicial restraint.

This piece of history may have particular relevance to the Oregon Supreme Court, where the last 10 years have seen an unprecedented increase in that court's willingness to overturn state laws, in particular measures passed by Oregon voters under the initiative process our state pioneered over a century ago.

This trend started in 1996, when ballot measures reforming the Public Employees Retirement System and imposing campaign contribution limits were overturned. It continued in succeeding years with a crime victims' bill of rights, election reform, term limits and a property rights measure.

Earlier this month, a Salem circuit court judge struck down a revised property rights measure - and this presumably will make its way before the state Supreme Court as well.

Meanwhile, the Supreme Court has also rolled back a legislative attempt to reform PERS and just recently overturned a decision by the Portland School Board to contract out their custodial work, decisions likely to cost taxpayers tens of millions of dollars.

Whether these decisions are legally correct, or at least legally defensible, is beside the point. By almost any measure, the Oregon Supreme Court over the past 10 years has been the most activist in the state's history. The question is whether this activism will invite a political backlash, as did the conservative judicial activism of the 1930s. Alternatively, might such a backlash be avoided by a return to judicial restraint - and should it?

The prospect of a political attack on the independence of the court should provide comfort to no one. The legitimacy of the courts is based largely on the public's perception that they are not political bodies, the technical provision for the election of judges notwithstanding. At a time when our politics, here in Oregon and across the country, grow seemingly more polarized and ideological with each election, the prospect of tossing judges into that morass is particularly unappealing.

So far, even modest proposals, such as requiring gubernatorial appointments filling judicial vacancies to be confirmed by the state Senate, have raised concerns among members of both parties. In 2002, voters wisely rejected a constitutional amendment allowing them to select `none of the above' in judicial races. That same year, an attempt to have appellate judges selected by district was more narrowly defeated but may be on the ballot again this year.

One problem with these measures is that they attempt to tinker with the system to achieve uncertain results. Electing appellate judges by districts may superficially appeal to residents in rural Oregon, but in fact is more intended to produce ideological rather than geographic balance in the courts. It is also likely to be ineffective, since liberal governors can find liberal lawyers from Eastern Oregon to appoint, just as a conservative governor could appoint conservative lawyers from Portland.

But if institutional changes in the court are unlikely and unwanted, what is the chance of effecting an attitudinal or philosophical shift in the judges on Oregon's highest court?

And precisely what type of change should we hope for? Historically, the antidote prescribed for judicial activism is judicial restraint. Like the term `activism,' the label `restraint' is largely devoid of substance. Skeptics can be forgiven for believing that charges of judicial activism are levied whenever a critic disagrees with the action of a court, while judicial restraint is applauded when a court declines to do something the critic doesn't like.

One of the most outspoken advocates of judicial restraint today is the liberal law professor from the University of Chicago, Cass Sunstein. A prolific if not particularly profound writer on legal and constitutional subjects, he espouses a variant of judicial restraint that he calls `minimalism' in a recent book provocatively titled "Radicals in Robes: Why Extreme Right-Wing Courts are Wrong for America."

Sunstein contrasts the minimalist philosophy he champions with what he calls the `fundamentalism' of conservatives and the `perfectionism' of many liberals (preferring a `separate but equal' approach to labeling judicial activists of the right and left).

While Sunstein champions minimalism, his description of it sounds more like timidity and indecisiveness.

Fortunately, there is a richer intellectual history informing a jurisprudence of restraint. It dates back to the early 20th century in what was called the "legal realist" movement. Like other early exponents of judicial restraint, the legal realists were political liberals reacting to what they considered the legal formalism of conservative judges they accused of rigidly applying legal precepts and principles to invalidate economic and social legislation with which they personally disagreed.

The greatest practitioners of legal realism were judges who also enunciated the principles of judicial restraint: Oliver Wendell Holmes, Benjamin Cardozo and Learned Hand. Their style of judging reflected a high degree of pragmatic analysis of the facts and context of the cases before them, and a reluctance to apply legal rules and precedents formulaically to overturn legislative enactments with which they disagreed.

Applying the methods of these judges to the jurisprudence of the Oregon Supreme Court today, one might suggest the following principles to improve the court's method of deciding cases:

Give some deference to the decisions of elected officials, remembering with Justice Holmes that `legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts."

Give consideration as well to administrative rules and rulings of government agencies, which should be credited with some degree of expertise in their assigned fields of responsibility.

Interpret statutes in their total context, rather than resorting to the literalist approach of what Justice Cardozo called `dictionary judges.'

Where appropriate, bring back balancing tests - which the Oregon Supreme Court has disdained for a quarter of a century, but which better reflect the complexity of the world than dogmatic adherence to inflexible rules.

Recognize the inherent limitation in seeking to follow the original intent or understanding of constitutional principles. Most judges are neither historians nor mind readers, and as Justice Holmes observed, `It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV.'

Step out of the ivory tower and recognize the practical impact of judicial decisions, including fiscal impacts, recognizing with Justice Cardozo that the knowledge a judge must consult in reaching a decision comes from `experience and study and reflection; in brief, from life itself.'

Approach the task of judicial decision-making with humility, acknowledging with Judge Hand that the spirit of liberty is `the spirit which is not too sure it is right.'

Jack Roberts of Eugene is executive director of Lane Metro Partnership. He is contemplating a campaign for an open seat on the Oregon Supreme Court.