The Significance of the Recall of Judicial Decisions

IN his address before the Ohio Constitutional Convention some months ago, ex-President Roosevelt said, ‘I do not believe in adopting the recall (of judges) save as a last resort, when it has become clearly evident that no other course will achieve the desired result. . . . But there is one kind of recall in which I very earnestly believe, and the immediate adoption of which I urge. . . . When a judge decides a constitutional question, when he decides what the people as a whole can, or cannot do, the people should have the right to recall that decision if they think it wrong.’

The recall of public officers, as one of the more radical proposals for political improvement, is quite familiar. It has been particularly discussed in its application to judicial officers. The Recall of Judges has received substantial support, and has even been adopted by a few states. On the other hand, it has been strongly condemned by leaders of both great parties. President Taft, himself formerly a judge of the Circuit Court of the United States, has denounced the proposition unqualifiedly. Governor Wilson of New Jersey has been equally direct and forceful in rejecting it. Senator and former Secretary of State Root, and Governor Harmon of Ohio, have also publicly taken position against the Recall of Judges.

Much of the discussion which has followed ex-President Roosevelt’s proposal for the Recall of Decisions has indicated that it is regarded as novel in form only. The belief appears to be entertained by many people that the Recall of Decisions is substantially the same as the Recall of Judges — that it is merely new clothing upon an old character. If so, it need hardly receive distinct consideration.

Others seem to regard it as an essentially different proposal; perhaps, as aneffective means of accomplishing reforms which they think necessary, and as free from the more serious faults which have drawn such liberal criticism to the Recall of Judges, — a counterproposition of superior merit.

The purpose of the writer is neither to defend the Recall of Judicial Decisions, nor to abuse it, but rather to examine it, and to get at its more important qualities and characteristics.

It is obvious that the Recall of Decisions does not threaten the official head of either a corrupt judge or an unpopular one. The Recall of Judges directly threatens both. One of the weaknesses of human nature lies in the fact that disappointment over a decision frequently produces a belief that it is unjust. We may admit that occasionally a judge is influenced by improper motives. For such rare cases, the Recall of Judges would provide an effective method of removal, provided they could be identified in some rather more certain way than by haling them before the Court of Editors, for whom, by the way, no recall is provided.

The Recall of Decisions, on the other hand, provides no improvement over the present method of getting rid of corrupt judges. It is to another class of judicial officers who are subjects of criticism — those whose decisions are unpopular or who, to use the softer epithet, ‘are not sufficiently responsive to the popular will’ — that the Recall of Decisions is directed. For them it proposes neither punishment nor disgrace, but ‘correction.’

Is it genuine ‘correction’? The theory was long ago adopted that judges do not ‘make,’ but merely ‘declare,’ the law. If the law is not what was intended, legislative correction is possible, and often speedy. Ought we to expect the courts to make of the law something which it was not? Judicial legislation is apt to involve more danger and criticism than any that has up to the present time been met.

But the advocates of these doctrines of recall are not to be satisfied with arguments which go no further than this. There is, they say, a borderland in the law, where the time-honored theory that judges merely ‘declare’ the law is not a fact. There is a region where many of the most important questions are contested, where the law is not settled. This is the region of live issues. It is in the exploration of these new and unsettled territories that courts and judges become of most serious concern to the nation, for by their mouths shall ultimately be expounded the new commentaries.

This is peculiarly so because in this country we have made for ourselves written constitutions, whose dominance over legislative acts is asserted through the courts. In this realm, we are told, the courts do not merely expound the law; they in a very real sense make it, and, it is asserted, they can and do make it one thing rather than another according as they are in sympathy with one set of ideas or with another, or at least according to the weight which they give to one set of arguments or to another.

Take as an example the much-discussed Ives case referred to by exPresident Roosevelt. In that decision the highest court of the State of New York declared unconstitutional an employer’s liability act. The act in question provided compensation to a workman for injuries received in the course of his employment without regard to whether his employer was in any way blamable for such injuries, and without regard to whether the employee had himself been negligent. It was attacked upon the ground that it violated the constitutional provision against depriving a person of his property without due process of law. To make this claim more concrete, it was argued that the legislature was providing a way for taking the employer’s property for the benefit of the employee, without the employer being in any way at fault, without his having violated any duty owed to the employee; and that such taking was without compensation and unconstitutional. On behalf of the employee it was argued that the employment was inherently dangerous, and that the employer, rather than the employee, ought to bear the risk of the employment as part of its general expense, lest the injured employee become a public charge.

In other words, it was the conflict seen so often between the long-established views as to the rights of property and the more recently expressed feeling as to public interest. Almost every regulation deprives a person of some feature of liberty or property. The line of demarcation beyond which burdens upon private rights are not allowed under the constitution seems, practically speaking, to be that limit where the court feels that, on the whole, the public interest or concern involved is not sufficiently weighty to overbalance the encroachment made upon the property rights and privileges of the individual.

Where that dividing line is drawn in the particular case may well depend upon one’s personal view. One judge may not give to the argument of public interest quite the same force as another. When the popular feeling is very st rong to the effect that the public need is great, there is bound to be disappointment when the court decides that such public need is not great enough to outweigh the inroad made upon the private right; and the feeling is at once likely to be expressed that the court is out of sympathy with the public interest, or ‘is not a faithful public servant.’ From this feeling springs, we are convinced, the present demand for the greater popular control of judges and decisions.

The Recall of Judges does not offer any machinery for reversing the decision or line of decisions which has become the subject of criticism. Such decisions continue, until reversed, to express the law upon the subject. Their author, however, is to be punished for so declaring the law. The only assurance of their later reversal lies in the probability that a judge will not again risk recall by following them.

This is at best an uncertain assurance, for it will almost invariably happen, if we may judge by experience in other lines, that, in the heat of a special election, many and varied arguments will be urged to accomplish the recall of a judge. Every special interest which smarts from any of the court’s decisions will endeavor to bring its friends into line to vote adversely. If the Recall is to be of any value we must be able definitely to say just what the issue is. How shall the issues be clarified and made concrete? When it is all over, who will be able to define with certainty the one reason for the result? What will have been repudiated? It will be as difficult to say what the concrete and specific wall of the people is as it is now to say what single issue caused the election of a governor or a president. A combination of causes will produce the Recall of Judges.

Courts, on the other hand, deal with specific and concrete questions, and the successor in office may deal as he pleases with individual cases, provided he is a shrewd enough politician to avoid a future conjunction of causes sufficient to overcome the combinations which he can muster to his support. Or assume that an entire court has concurred in a decision, as the entire court of seven judges of the Court of Appeals concurred in the Ives case. Is it proposed to recall all of them? If they are voted on separately, and by name, may it not happen that some would fall and some remain? If so, who could say what the election had settled?

The Recall of Decisions is in these respects undoubtedly more precise and effective. The question is more clearcut and easily understood. Shall a decision nullifying a particular legislative act upon constitutional grounds be and remain the law, or shall it be in substance overruled? The question is shifted from men to principles, and the issue is made impersonal and concrete.

In working out the plan for the Recall of Decisions it is hardly conceivable that any one should seriously suggest a new Court of Errors and Appeals to be superior to the highest present court of the state, in which new court every voter would be a judge. It is hardly conceivable, in other words, that the recall of a decision should have the effect of actually reversing the decision of the highest court in the particular case which has led to the unwelcome decision upon the question of constitutionality.

To illustrate. The Ives case already referred to was an action brought by Earl Ives against the South Buffalo Railway Company to recover compensation under the so-called Employer’s Liability Act for an injury which, according to his own statement, incapacitated him for a period of seven weeks. The highest court of the State of New York decided that he could not recover upon the claim stated, for the reason that the law was unconstitutional. Should the Recall be applied to that decision, the issue would not be whether Ives should be paid for the seven weeks’ incapacity, but rather, whether the decision of the court as recorded in the Ives case, to the effect that the law was unconstitutional, should continue thereafter to be the law of the state.

If the Ives case had been dismissed by the judge at the conclusion of a trial, on the ground of the unconstitutionality of the statute, and if the highest court of the state had affirmed that ruling, the recall of the decision ought not to send the Ives case back to the first court for a new trial. The recall of the decision could hardly mean more than this: ‘The state regrets that the constitution means what the court declares it to mean in the Ives case. The constitution is therefore amended so that henceforth it shall not forbid the legislative act in question, which is hereby validated.’

We say that the Recall will not reverse the decision in the particular case. The particular case which disclosed the ‘hitherto unknown defect’ in the constitution will be and remain res judicata, just as any other case is res judicata, although its rule is later repudiated or modified. But the Recall will change the constitution from that time forth.

To attempt to give to the Recall of Decisions a wider scope than this, would be to wipe out with one stroke every vestige of orderly judicial procedure. The line is clear, and the difference fundamental. If this is a new Court of Errors and Appeals which is proposed, then where and when and how shall the parties present their arguments? Who shall represent and speak for the appellant, and who for his adversary? How shall we get the record before the court? How shall we confine the ‘case on appeal’ to the sworn evidence? How shall we assure to either party any thoughtful consideration of the merits of the case? Shall we require both parties (for we must assume a hazard to both in connection with the reopening of any decision) to resign their interests to the advocacy of the public prints; or, as the alternative, shall we require them to hire speakers and buy advertising space in order to present their side to the public? How shall we avoid the treachery of those who distort or suppress the facts? Innumerable difficulties will occur to any one who contemplates trying his case in the newspapers. Litigation would be made a matter of a political campaign.

We need not multiply difficulties of this sort, for there are objections of another and seemingly more important nature. It has always stood as the cornerstone of the Temple of Justice that the judge shall not have a personal interest in the case which is being tried before him. No one may sit in judgment betwixt himself and his adversary. If we make of the people a court, we necessarily abandon this principle, for the Recall of Decisions as an actual proposition would never have seen the light of day were it not for the fact that the public at large is believed to have a strong partisan interest in the decision of such questions as were raised in the Ives and other cases.

The belief that the decision of specific cases should be left to able and disinterested men, has hitherto been universally approved. To establish a rule of conduct in advance is a very different thing from applying it to the particular case. The trouble lies not in establishing the rule, but in applying it when it pinches. Shall we make a fundamental rule of conduct and then, when it chafes a bare majority of us, shall we abandon it? Shall we object when it is applied to ourselves? If we mean to do so, let us do so frankly, and in a straightforward way, and not by a miserable quibble. ‘This is a rule that works in only one way, always for us, never against us.’

Shall we, having established the rules and begun the game, change them while the game is on, if it is going against us? Let us not set ourselves up as judges in our own law-suits. Let us play fair. Let us not attempt to escape by pretending that we are ‘interpreting’ the rule as it should be; let us not force the court to adopt the ‘interpretation’ of that contestant who can display the greatest force. Let us say, ‘We made the rule, and we stand by it for the present, although now, in operation, we do not like it. Hereafter let it be amended.’ The latter is not only the honest thing to do, it is the scientific thing to do. It is legislation, and that, of the most fundamental and sovereign sort.

The distinction which we have been making in the application of the Recall of Decisions, between applying it in a way to affect the particular case, and applying it solely to reach the principle involved, is the distinction between the legislative and the judicial branches of governmental power. That these functions of government are distinct has become the merest truism. The attempt to confuse them has produced a large part of the discussion, violent, acrid, and sustained, which has arisen over these suggestions of recall.

The people are sovereign in these United States, and, as sovereign, the people can and do establish laws — both the fundamental constitutions and the annual volumes of statutes. The sovereign people likewise establish the courts to weigh out justice under those laws between man and man, or between man and groups of men; but the term ‘ the people ’ is not synonymous with the term ‘the sovereign people.’ If every voter owned one share of stock in the Standard Oil Company, that corporation might be said to represent ‘the people,’ but would it thereby become ‘the sovereign people,’ with power to legislate and establish courts, to make war and punish crime? Because more than half of the people have a common interest in the outcome of a certain lawsuit, they cannot for that reason appropriate the attributes of sovereignty. They are interested in their individual capacity as the group, not as the sovereign. When the public in that sense is before the court, it is simply a litigant suing for justice under the established rule; and to advocate the principle that it should coerce the court by its great numbers into a favorable decision, is no different in principle or in morals from advocating the doctrine of the sale of justice to the highest bidder.

When the people appear as the substantial litigant, let them submit to the laws and to the courts which the sovereign has established. If those rules are not satisfactory, let them, if possible, persuade the sovereign, thereafter, to change the rules. That is orderly and proper procedure. It is not sound in this case to say, the people established the constitution, they are therefore capable of interpreting it. They established the rule in their capacity as sovereign when they were impartial. Are they, therefore, to interpret it in its application to a specific case involving their own personal interests when they have ceased to be impartial?

To put the matter briefly: if the proposal for the Recall of Decisions be applied in the manner which we have suggested as the only possible or defensible manner, then it is a method for amending the constitution. As we suggested some time ago, it is a way of saying, ‘We do not like the present rule, and we are going to change it so that henceforth the rule shall be thus.’

Viewed from this standpoint, the Recall of Decisions is not only fundamentally different, but is vastly superior to the Recall of Judges, for it is more practical, scientific, and effective. To recall a judge, or an entire court, neither changes the decision in the specific case, nor changes the constitution so that a different decision can be logically arrived at in another case.

Assuming from this point that the Recall of Decisions is intended not to establish a new Court of Appeals, but as a new method for amending the constitution, what may it accomplish? It is proposed solely as a state institution. ‘The decision of a state court on a constitutional question should be subject to revision by the people of the state.’ (Ex-President Roosevelt.) Now, the Ives case and many of the other cases involving constitutional questions of great popular interest were decided not only under the provisions of the state constitution, but also under the Constitution of the United States; for, as every one knows, the powers of the legislature of each state are limited by dual constitutional restrictions.

If the Ives decision were recalled, the result would be that the constitution of New York would be amended so as to permit the legislation in question. When, therefore, the next case reaches the highest court of New York, we should expect its decision to be that the act is constitutional so far as the state constitution is concerned, but that it violates the Federal Constitution. Such a decision would leave the advocates of the law exactly where they were in the first instance, for the reason that the Supreme Court of the United States would have no jurisdiction to review the decision. When the constitutionality of a state law is questioned under the Federal Constitution, and the decision of the highest court of the state is in favor of its validity, appeal may be made to the Supreme Court of the United States; but the rule is otherwise when the highest court of the state decides against the act on the ground that it violates the Constitution of the United States.

Here is a new difficulty. The people of a state can change the constitution of that state, but they cannot change the laws or Constitution of the United States. Perhaps the United States can be persuaded to change its law. If not, then the test cases will have to be brought in the United States courts in the first instance.

In some way the Supreme Court of the United States will have to pass on the question in almost every instance. Does it not seem strange that any state should prefer the judgment of a court responsible in no way to the people of the state, — perhaps chosen entirely from other parts of the country, — and as it would appear from the expressions of the advocates of the doctrine, infinitely less likely to be familiar with, or to respond readily to, the desires of the people of one state in respect to a law which ‘they deem necessary for the betterment of social and industrial conditions’? The decisions of the United States Supreme Court have not hitherto received such unanimous popular approval, either before or since the Dred Scott case, as to give it a clear, popular advantage over the state courts.

Even a somewhat casual examination of the decisions of the Supreme Court will, we believe, indicate a strong probability that its opinions will not be markedly different from those of the courts of the larger and more important states. It is not apparently disposed to be so much more liberal in its interpretation of the scope of the police power, or of due process of law, as to make it a genuine haven of refuge for the more ardent advocates of socalled ‘social justice.’ It is not many years since its decision in the Bakeshops case (Lochner v. New York, 198 U. S. 45), decided in 1905, incurred displeasure which was as vigorously expressed as that which is now directed at the Ives case. Reflection, we believe, will convince one that the margin of advantage is likely to prove so narrow as to make it improbable that there will be any very substantial increase in popular satisfaction. We shall then, no doubt, observe the active discussion of various proposals for remaking or radically amending the Federal Constitution. All such programmes are, however, definitely disclaimed at the present time by the advocates of the Recall of Decisions.

Viewed, therefore, entirely from the standpoint of practical and effective reform, the Recall of Judicial Decisions is, in almost every important respect, superior to the Recall of Judges. It does not, however, promise in any very substantial degree to smooth the path of social workers and philanthropists. The longing for a more paternal government, and for more charitable laws, requires some more effective weapon. This proposal merely renders our state constitutions almost as readily changeable as are our statutes, by making it possible and easy to amend the state constitution to fit. any statute which is popularly approved. It is not a revolutionary proposal. By making constitutional amendment somewhat easier, it will tend to decrease the weight and serious effect of those fundamental laws. It does not, however, provide any means for upholding the statutes against the Federal Constitution which they may often, if not always, be obliged to encounter. Whether the Recall of Decisions should be adopted, is, like most other political questions, purely one of expediency. To enter upon the discussion of that phase of the question would lead us too far afield into the region of partisan political controversy.