The central component to judicial philosophy is that judges need to have a profound respect for the ‘Rule of Law.’ The ‘Rule of Law’ does not mean judicial supremacy, or placing judges above public scrutiny. If anything, it means the contrary. The ‘Rule of Law’ dictates that no one, including judges, will be permitted to act above the law, and that all public officials, including judges, will be held accountable. The essence of the ‘Rule of Law’ is placing moral and constitutional limits upon those in power.
The ‘American Proposition’ has been a beacon to the world. A central component of it is the desire that justice not be incidental to the law, but rather on the same page. Three critical themes of the ‘American Proposition’ and the maintenance of a just society are:
- Protection of liberty — insuring that citizens are free to follow their consciences and their callings;
- Equality for all under the law — insuring that no one will be placed above the law, and that no one will be placed beneath the law’s concern; and
- Consent of the governed — insuring that the people will have the final say by whom they will be governed, and by what laws they will live under;
The essence of American constitutionalism is to keep the above in mind while adhering to the text of our federal and state constitutions. The judiciary must limit itself to its proper constitutional role. The judiciary must resist the temptation of imposing itself as an all-wise, supreme legislature. However, the judiciary must also be vigorous enough to resist becoming a rubber stamp for the other branches of government.
It is constitutional error for the judiciary to expand the scope of the constitution beyond what is grounded in the text. It is likewise constitutional error for the judiciary through the use of semantics to narrow or negate principles grounded in the text.
Lastly, judges must be aware that the perceptions and interests of the legal world may be opposed to the perceptions and interests of the public at large. The legal world’s perceptions and interests are not entitled to preference. Our courts’ primary mission must be to serve the public rather than to protect and promote the legal industry.