The Proper Role of Judicial Philosophy

There is a good discussion of the proper role of judicial philosophy in Cornell Law Professor Michael Dorf’s online column for Findlaw. Professor Dorf focuses on legislative history, defending it against the charge that it "is uniquely subject to abuse, and thus categorically irrelevant." He argues that "any interpretive methodology can be abused" and that, while some judges may use legislative history self-servingly, it is at least possible that some will use it "in an honest effort to figure out what Congress was attempting to accomplish."

I agree. The duty of a judge faced with a question of statutory interpretation is to make an honest effort to figure out what the legislature was trying to accomplish. A judge determined to make that honest effort may find interpretive methodologies helpful and may derive useful insights from judicial philosophy. But a judge not disposed to self restraint will be able to find in those things justification for preferred outcomes.

(Professor Dorf concludes with a few paragraphs of speculation about the underlying motives of "liberal" and "conservative" judges. While that speculation is interesting, I do not endorse it.)