Section Home

Section Council

Section Projects

Section Publications

Law & Politics:
The Imperative of Judicial Self-Restraint
Hon. D. Arthur Kelsey

The following article is from a speech presented by Judge Kelsey before the Portsmouth Bar Association at its Law Day program on May 6, 2002.

Before I begin, I want to honor two of your favored sons. Like many of the lawyers here, I attended William and Mary Law School and studied law under Dean Bill Spong. I later went on to clerk for Judge John MacKenzie in the federal court. As I drove to Portsmouth today, I realized how deeply in debt I was to these two men.

But there is another man, one I never knew, who also left a lasting impression on me. He was an extraordinarily successful lawyer, a jurist of the first order, and a man of great influence and learning —he was also a man convicted for a capital offense and executed by the state. His name was Sir Thomas More. This man’s story begins in England, in the early 1500s, at the time of King Henry VIII. As far as kings went, Henry VIII was an archetype of the worst sort. Though reasonably competent at governing others, Henry was quite incompetent at the art of self-government —a fatal flaw not at all unique to that time or that place.

Henry got to the throne entirely by an accident of fate. His older brother, Arthur, had been groomed for the job —so much so that he married Catherine of Aragon, a Spanish princess who would help ensure the continuity of the Anglo-Spanish alliance. But Arthur unexpectedly died before assuming the throne from his father. As the heir apparent, Henry decided to take his brother’s widow as his own wife and, upon his father’s death, to declare himself king. Henry’s problem was that both England and Spain were Christian monarchies, and ecclesiastical law did not permit a man (even a king) to marry his brother's widow. Undeterred by this legal technicality, Henry waged an intense diplomatic campaign and ultimately secured from the Pope a special one-time waiver to the marriage law, applicable only to Henry.

Over time Queen Catherine lost favor in Henry’s eyes. She developed a deep, abiding religious faith—something of a character quite foreign to Henry. Her strategic value to the kingdom also diminished when the Spanish alliance proved less profitable to England than Henry expected it to be. To make matters worse, Catherine of Aragon had given Henry a daughter, but had committed the ultimate royal sin of not giving the king a male heir to his throne. And, of course, there was one other reason for Henry’s change of heart (one as common to kings as to peasants): there was another woman—Anne Boleyn.

Though the king was not known for his scholarship, somehow Henry’s marital problems led him into a great deal of academic reflection on the reliability of ecclesiastical law. Much to his delight, Henry discovered that the Pope should have never granted Henry’s earlier request for a special waiver of the marriage prohibition of papal law. So Henry advised the Pope that he was right all along, and that the king’s marriage to Queen Catherine was in fact void ab initio. Not in the least amused, the Pope refused to annul the marriage and to permit Henry to marry his paramour.

Both outraged and in no small measure quite embarrassed, Henry began a hostile takeover of the ecclesiastical sphere of England. He appointed a political hack, Thomas Cranmer, to the high post of Archbishop of Canterbury, who repaid the deed by issuing the appropriate religious edict authorizing both the divorce of Catherine and the marriage to Anne Boleyn.

Now, while all this was going on, a highly gifted lawyer named Thomas More had become well known throughout the kingdom as a man of integrity and honor. And he was just the kind of man Henry needed to restore some intellectual and moral legitimacy to his reign. The king appointed More to the highest judicial post in the land, Lord Chancellor of England. This was a job More was uniquely qualified to perform. More had a profound understanding of law, a strong interest in legal scholarship, and an unimpeachably honest intellect.

But Henry VIII needed More not for his legal skills, but for his reputational capital. Not long after More’s appointment, Henry asked More to issue a public declaration of the legality of Henry's divorce and remarriage. More refused on the ground that it fell far outside his subject-matter jurisdiction and would, in any event, violate his conscience to meddle in such matters.

In the 1962 play A Man For All Seasons, the playwright Robert Bolt has a scene where More explains this to King Henry. More then asks the king, “Why does your Grace need my poor support?”

Henry replies:
Because you are honest. What’s more to the purpose, you’re known to be honest. There are those who follow me because I wear the crown, and there are those who follow me because they are jackals with sharp teeth and I am their lion, and there is a mass of men that follows me because it follows anything that moves —and then there is you.
Robert Bolt, A Man For All Seasons 31-32 (1962), original text paraphrased.

What Henry VIII wanted was not a judicial decision from the high judge of chancery, but a political decision that announced the Chancellor’s personal opinion on the subject. This struck Sir Thomas More as a clear violation of his oath of office. He was being asked to use his judicial position for the sole purpose of promoting a political and personal agenda of the monarchy.
After refusing the king’s request, More resigned from the Chancery bench and went into what he hoped would be a quiet retirement. At no time, either before or after his resignation, did More once privately or publicly challenge the king or question his authority. Unable to serve his sovereign with a clear conscience, More simply withdrew from public life altogether.
Henry nonetheless issued orders for More’s arrest and imprisoned him in the Tower of London. Henry then impaneled a special jury of his friends, which (as he expected) found More guilty of high treason. Henry issued the writ for More to be beheaded. Shortly before his death, More reportedly told the king: “Between you and me, Sire, there is only one thing —I die today, and you tomorrow.”

The contest between King Henry VIII and Chancellor More was not just a brutish clash of wills, a brawl between two ambitious and powerful men. It was a clearly framed clash of ideas. To Henry, the law was as malleable and fleeting as his lusts. The law was what he wanted it to be, when he wanted it to be, and whatever he wanted it to be in order to serve his personal and political interests. In the plainest of terms, Henry VIII thought himself above the law.

On the other hand, Sir Thomas More—even though the highest judge in the land—viewed himself as a servant of the law. As a student of the Magna Carta, More believed the law governed everyone in the kingdom equally—from monarchs to plowboys. Equally clear to More was that no one, not even a king, should use the institution of the judiciary to promote his political and personal goals.

Does the story of King Henry VIII and Sir Thomas More have relevance today? I think so. We live in a time where many Americans are deeply suspicious about the role of politics and the courts. Sometimes this suspicion is terribly unfair, other times perhaps understandable. I do not believe the public’s fears on this issue should go unaddressed. When judges interject their personal political philosophies into their judicial opinions, whether explicitly or implicitly, they arrogate a power to themselves that our tripartite system of government clearly denies them. The Constitution does not authorize the judiciary to write laws that the legislature failed to enact, or to repeal those that violate no recognizable constitutional principle, or to amend laws that are reasonably adequate but nonetheless can be improved upon. As Thomas Jefferson put it, a judiciary that pushes beyond these limits would place us all under the “despotism of an oligarchy” —one flatly at odds with the democratic principles of our republic.

In my view, we judges must constantly revisit these fundamental limitations on our power if we are to be faithful to our oath of office. When we are called upon to interpret the Constitution in order to adjudge a specific case or controversy, we must repress any political or philosophical view we hold that is inconsistent with the plain meaning of the constitutional text or its historical context. If we fail to exercise this form of intellectual self-discipline, we will bumble down a path that, in the words of Justice Scalia, “proceeds on the erroneous and all-too-common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says.” Apprendi v. New Jersey, 530 U.S. 466, 499 (2000) (Scalia, J., concurring).

This principle is not limited to constitutional jurisprudence. Every day in our courts we trial judges hear arguments relying on statutes and rules of court. And every day trial lawyers try to find clever ways to tempt us into expanding or contracting those laws depending on their potential impact on the case before us. We must, of course, resist this temptation. Our personal views on the ostensible wisdom of legislation or the alleged policy justification underlying it should play no role in our judicial reasoning.

Our task, actually, is quite simple: read the statute, read the rule—and do exactly what it says. Add nothing to it; subtract nothing from it. Some say this view is naively simplistic, that the law is much too complex for this. I couldn’t disagree more. Quantum physics is complex. Game theory mathematics is complex. General and specific relativity is complex. Law is nothing of the kind. Vague, it often may well be —but don’t confuse obscurity with complexity.

Few of you would say as much out loud, but many of you are probably thinking, “Really, now, what is the big deal?” Some of you may go even further and say to yourself: “Come to think of it, I kind of like some of the opinions that might be considered judicial excesses.” Fair point, to be sure. But let me give you three reasons to reconsider your views.

First, the moment we become tolerant of judges imposing their own personal or political philosophies through judicial edicts —a tolerance, by the way, that we conveniently embrace only when we think the judges got the answer right—we compromise our ability to make a principled objection to this exercise of power when we think the judges got the answer wrong. If you think this point not that important, let me remind you of some painful history. Go back and reread the Dred Scott decision, in which the highest court in the land declared there to be a constitutional right to enslave our countrymen, and on that basis, struck down the Missouri Compromise. After you read the majority opinion, go to the dissent of Justice Curtis. This is what you find:

Political reasons have not the requisite certainty to afford rules of [judicial] interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.
Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 620-21 (1857) (Curtis, J., dissenting).

It was only a few years after Justice Curtis issued this dissent that our nation took a violent free-fall into civil war. Consider this — is it possible that the course of history might have been different if the majority on the Court had heeded the warnings in Justice Curtis’s dissent?

In the same league of error I would place the decision of Korematsu v. United States, 323 U.S. 214 (1944), a Supreme Court decision that permitted thousands of innocent U.S. citizens of Japanese heritage to be interned in detention camps on American soil. Korematsu, in so many words, told us that the high court reserved to itself the option of suspending constitutional liberties in time of war—a proposition you will find neither in the literal text nor the historical context of the Constitution.

Another example (less egregious, but equally erroneous) would be Lochner v. New York, 198 U.S. 45 (1905), in which an economically conservative Supreme Court used the substantive due process clause as a platform for repudiating any laws inconsistent with the laissez-faire market theories held by the Justices. Years later, the Court relied on Lochner over and over again in its effort to repeal FDR’s New Deal legislation, an effort the Court ultimately abandoned when FDR refused to back down.

My point in marching this parade of horribles by you is not merely to condemn the political immorality of those times, but to show the common denominator to be the same in each: the judges went far outside the boundaries of any recognized legal precedent and entered the dangerous sphere of judicial lawmaking. The judicial process left the safe ground of legal analysis and wandered into the perilous ground of philosophical dialectic. It is not enough, therefore, for us to object to the results they reached in those cases. We must also understand, and then dismantle, the reasoning that led them to those results.

Second, even if the courts had plenary authority to make law, they are certainly ill equipped to do it. Truth be told, the institution of the judiciary is not at all nimble enough to engage the kind of social experimentation necessary to make good law. Once a court issues a ruling, the doctrine of stare decisis immediately encamps around it to stifle any later change or repudiation. That is not at all the situation with legislation, which can come and go as political power migrates from one set of interest groups to another. The systemic capacity for inertia that characterizes the judicial system makes it a poor laboratory for improvising on social policy.

This lack of flexibility means that even the best of social engineers, if he or she sits on the bench, cannot respond quickly to evolving societal trends and the vicissitudes of the public will.

My third and last reason for considering this issue important has to do with its effect on our democracy. Judicial lawmaking inoculates the political class from having to deal with the hard realities of governing a diverse, pluralistic society. When a polarizing social issue makes its way into the courts, you can almost hear legislators let out a collective sigh of relief.

Once the courts monopolize the issue, the legislative branch of government is relieved of the responsibility for articulating public policy with any degree of specificity. This has the effect of anesthetizing some citizens and alienating others. When we take the hard issues of the day out of the public square, we leave the ordinary citizen to believe that his or her view is no longer relevant. Worse still, we imply that our citizens are neither intellectually competent nor ethically capable of working out a just resolution of these issues. It would be very much to our disfavor if the great debates of our times are banished from the vast marketplace of ideas that we call America and restocked on the shelves of a single shop—owned, operated, and self-regulated by the judiciary. The egalitarian traditions of our people and their virtuous distrust of elites make these undemocratic consequences wholly unacceptable to me—and, I hope, to you as well.

Let me close with this one thought. Implicit in what I’ve been saying is that we judges must avoid the seduction of thinking ourselves too wise. A measured amount of institutional humility, I believe, would go a long way right about now. Let's face it: We are not philosopher-kings; we are not guardians in Plato’s imaginary republic; we are not linear descendants of Solomon.
Along these lines, I like the response Justice Byron White gave at his Senate confirmation hearing when asked what he thought the role of the U.S. Supreme Court should be. He paused quietly and said, “To decide cases.” I think that is exactly the response Sir Thomas More might have given to that question.

In A Man for All Seasons, there is a scene where More’s wife Alice, his daughter Margaret and his son-in-law William Roper argue with More because he refuses to have a certain man arrested. The scene ends with this exchange:

Margaret: Father, that man’s bad.
More: There is no law against that.
Roper: There is! God’s law!
More: Then God can arrest him.
* * * * * * * *
Roper: Then you set man’s law above God’s!
More: No, far below; but let me draw your attention to a fact —I’m not God. The currents and eddies of right and wrong, which you find such plain sailing, I can’t navigate. I’m no voyager. But in the thickets of the law, oh, there I’m a forester. I doubt if there’s a man alive who could follow me there, thank God...
Alice: While you talk, he’s gone [the man you should arrest]!
More: And so he should, if he was the Devil himself, until he broke the law!
Roper: So now you’d give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I’d cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turn round on you—where would you hide, Roper, the law all being flat? This country’s planted thick with laws from coast to coast—man’s laws, not God’s—and if you cut them down (and you’re just the man to do it) d’you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety’s sake.

Well said, Sir Thomas. I would too.

About the Author: Judge D. Arthur Kelsey sits on the bench of the Fifth Judicial Circuit in Suffolk and serves as a member of the VBA Civil Litigation Section Council. Before coming to the bench, Judge Kelsey was a partner at Hunton & Williams and a former law clerk to U.S. District Judge John A. MacKenzie. NOTE: After this issue was published, Judge Kelsey was named to the Court of Appeals of Virginia by Governor Mark Warner.

The Judicial Section Makes Its (Bench) Mark on the VBA
(News & Views, November 1997)

In Greek mythology, the goddess Athena sprang to life from the brow of the god Zeus. Although the genesis of the VBA Judicial Section was not quite as dramatic, it could well be said that the Section sprang to life in 1994 from the brow of then-VBA President M. Langhorne Keith (who is now a circuit court judge in Fairfax and sits on the Judicial Section Council).

Early in 1994, Keith, Executive Vice President Breck Arrington, and Judge Robert L. Harris Sr. (then a member of the VBA Executive Committee), discussed the concept of a VBA Judicial Section with Chief Justice Harry L. Carrico. After obtaining the Chief Justice's support, Keith presented organizational plans to the Judicial Conference and to the District Courts' Conference. More than 200 judges accepted the initial invitation to join the Section; as of October 1997, 292 judges were members.

In his Summer 1994 VBA Journal President's Page, Keith wrote that he hoped the new Section would provide a "home" for the judiciary within the VBA, make the bar more aware of the needs of the judiciary, lead to more bench-bar interaction, allow the VBA to be more effective in law reform activities involving the judiciary, and offer judges and lawyers opportunities for collegial gatherings.

The VBA Executive Committee appointed Judge Harris as the first chair of the Section and named 20 state and federal judges to serve as members of the first Section Council.

From the outset, the VBA Judicial Section has sought to represent as wide a spectrum of Virginia judges as possible. Section bylaws provide that in addition to the chair, the Section Council shall consist of a justice of the Supreme Court of Virginia; a judge of the U.S. Court of Appeals for the Fourth Circuit, resident in Virginia; a judge of the Virginia Court of Appeals; a judge from each of the U.S. District Courts, Eastern and Western; a circuit court judge from each judicial region; a judge of either a General District Court or a Juvenile and Domestic Relations Court from each judicial region; a U.S. Bankruptcy Court judge; a U.S. Magistrate from either the Eastern or Western District; and a retired state court judge.

Judge David H. Adams of the U.S. Bankruptcy Court in Norfolk has chaired the Section in 1997, with Judge Norman K. Moon of the Virginia Court of Appeals serving as vice chair.

The continuing goals of the Section, as outlined in the bylaws, are to improve the administration of justice; to promote dialogue and collaboration among state and federal judges; to foster public education about the judicial system and matters of concern to the judiciary; and to provide a forum for the discussion of matters of concern to judges.

Even at its first Council meeting on November 18, 1994, the Judicial Section proved itself willing to tackle timely judicial issues. State Senator Walter Stosch of Henrico, a member of the Senate Finance Committee and a CPA specializing in forensic accounting services, addressed the Council on the subject of judicial compensation.

At other meetings, the Judicial Section Council has heard presentations on subjects as diverse as the work of the Lawyers Helping Lawyers Program and maintaining the judiciary's independence from political influence. One memorable program was the Council's January 1995 visit to "Courtroom 21" at the Marshall-Wythe School of Law, where Professor Fredric Lederer showed today's judges the "Courtroom of the Future" and its technological features.

The Section's educational activities, however, have not been restricted to Council-meeting presentations.

In October 1995, the Judicial Section cosponsored a half-day educational program with the American Bankruptcy Institute. Held at the University of Virginia School of Law, the program was presented by a faculty of bankruptcy judges, trustees and practitioners. In addition to providing key information on current bankruptcy law, the program, in the words of Judge Rudolph Bumgardner III (who became the Section's second chair in mid-1995 when Judge Harris retired from the bench and resigned as chair) was "a unique opportunity for judges to share ideas and concerns about coordinating the work of the state and federal judges."

Judge Bumgardner also noted that "[o]ne of the most useful features was learning the best way of establishing communication between the two court systems to resolve day-to-day problems."

Other educational programs presented by the Judicial Section have included "Federal and State Judicial Independence," 1996 VBA Annual Meeting; "Civility and Professionalism in the Practice of Law: Is There Any Hope?" (cosponsored with the Criminal Law and Civil Litigation Sections), 1997 VBA Annual Meeting; and "Courtroom Decorum: Is That an Oxymoron?," 1997 VBA Summer Meeting.

At the 1996 and 1997 Annual Meetings, the Section cosponsored the annual Bench-Bar Program, "Dos and Don'ts in the Courtroom: Practical Pointers from the Bench for the New Lawyer," with the Membership Committee.

One of the original goals of the Association in creating the Judicial Section was to become more effective in law reform activities involving the judiciary. As an example, in 1996, the Section learned of a surprise proposal in the General Assembly to eliminate the multiplier in calculating judicial retirement--a measure which would have made it much more difficult to recruit experienced attorneys as judges. The Section Council relayed its concerns to the Association; the Association quickly responded; and the bill was defeated in committee.

In his report of the Section's 1996 activities, Judge Bumgardner wrote that "the Section is able to afford judges an effective and appropriate means to voice their concerns about legislative matters affecting the judicial system. It serves as a concrete example of why judges need to join the Association and the Section."

The Section not only offers judges a voice, but it provides a means of solving problems with other branches of government. Last year, in response to members' concerns, the Section created an ad hoc committee, chaired by Judge Dale H. Harris, to study what could or should be done to improve the relationships between the judiciary and the legislative and executive branches of government. The committee has considered the situation and has sought to find ways in which the Section could help judges improve relations with other governmental bodies.

As it enters its fourth year of existence, the VBA Judicial Section is moving ahead with increasing momentum. More and more judges are realizing the benefits of belonging to this dynamic group.

"We invite all Virginia judges to become members of the VBA Judicial Section," said Judge Adams. Given the Section's strong involvement in the issues that matter most to judges, the $25 annual section dues payment is well spent.