Shaping the Consensus: The Judge as an Agent of Social Reform
in Britain and the United States
Jamie Fuller
"[Tjhere was never a more sterile controversy," declared the eminent British
judge Lord Radcliffe, "than that upon the question whether a judge makes law.
Of course he does.
How can he help it? . . . Judicial law is always a reinter-
pretation of principles in the light of new combinations of facts . . . ."
It
is, however, a controversy that continues, as judges, legal scholars, and
laymen debate the proper limits of judicial power either to interpret and apply
the many and complex laws enacted by legislatures or to fashion completely new
rules that overturn the precedents of the past.
Judges are often criticized
for forsaking the role of neutral interpreter and venturing into the area of
social reform, where subjective values and policy considerations may be as
crucial to their decisions as common-law precedent or statutory interpretation.
But
, as this paper will attempt to show, the members of the judiciary can and
should fulfill an important function as agents of social reform, applying but
not undermining established principles of law to advance the interests of society and even to help mold the opinion of that society.
Judges in Britain and
the United States have traditionally taken different views as to the permissible
extent of judicial creativity.
This contrast in attitude, resulting in part
from differences in the operation of the two legal systems, will first be examined generally and then illustrated specifically through an analysis of cases
interpreting raceArelations
legislation
in the
two countries.
General View
of Judicial
lawmaking
1
/ jenL
First, however, it is necessary to consider some of the concepts of the relationship between the law and the judge that underlie the Anglo-American legal
tradition.
It can hardly be denied that as judges attempt to fulfill their
•basic function of settling disputes, some lawmaking on their part is unavoidable
in the process of adapting a rule to fit a particular case.
It has been suggested>
that the three essential principles of judicial decisionmaking are that l) the
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case must be decided, 2) an unjust or irrational rule cannot be supported forever,
and 3) the law must reflect rules that society can support. A judicial decision
made on the basis of these factors does more than affect the outcome of the case
under consideration; it may establish principles that will have an impact on
the whole law in that area.
These far-reaching results may be obtained even by
,
judges who believe they are doing no more than finding the law and applying it.
The declaratory theory
This latter judicial approach is an outgrowth of the declaratory theory of
the common law, which gained prominence in England in the seventeenth and eight-
y
eenth centuries. According to this theory, judges did not legislate at all but
simply discovered law already in existence.
In the seventeenth century, Matthew
Hale put forth the doctrine that judges did not actually make law, which could
be done only by the King and Parliament.
Rather, they declared what the law was,
basing their decisions on past principles, and these decisions were evidence of
public opinion.
In the eighteenth century, Blackstone reiterated the declaratory
theory by stating that judicial decisions were evidence of the common law.
The
common law was thus viewed as a combination of rules by which Englishmen had
long been governed and "principles of private justice and public convenience"
^y
3
subject to changes by acts of Parliament.
Under the declaratory theory, judges
did not create but merely expounded these general rules, which, through some
apparently mystical process, were known only to them.
<e*
This myth may have arisen out of a general desire to think of the law as
fixed and certain. In fact, the law by its nature is never certain or completely
predictable, nor could it be, based as it is on a wide variety of complex human
relationships.
To deal with these changing relationships and the problems they
produce, a legal system must be flexible.
Courts must constantly adapt the law
so that society can function, and the uncertainty resulting from this process
190
j*/*9
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can be of social value.^
Legal rules and .judicial reasoning
In modern times the tendency has been to assume not that judges do not legislate at all but that in fact only judges make law, overruling their past decisions
and overturning statutes.
According to Justice Gardozo, the better view is an
intermediate one which recognizes that judges operate within a system of rules
and can make law only in the gaps between those rules.^
In the words of Justice
Holmes, "I recognize without hesitation that judges do and must legislate, but
they can do so only interstitially; they are confined from molar to molecular
motion. A common law judge could not say, I think the doctrine of consideration
7
a bit of historical nonsense and shall not enforce it in my court."
The extent
to which a judge is willing to exercise his lawmaking power may be determined
\s /fftA
by his perception of the width of these gaps.
Even when decisions are made on the basis of established rules, it should be
remembered that rules are not ends in themselves but "means to an end, purposive
instruments.
They embody social objectives and policy choices.
Thus, when a
judge confronts a rule he is not met try a bloodless category but by a living
organism which contains within itself value choices.
^
The judge must choose
Q
and in doing so he makes law, but his choice is limited."
Knowledge that judges
adjudicate according to established rules l) helps people to shape their behavior
so as to fit within legal limits, 2) enables counsel for the litigants to settle
cases out of court, 3) facilitates meaningful participation in the adjudicatory
process since litigants know what kinds of evidence and argument are permissible, /
9
/
and k) allows lawyers to participate in the judge's reasoning process.
Judicial reasoning is like ordinary, day-to-day reasoning in that it is intended to express a judgment supported by specific rationales.
A legal decision
is not made arbitrarily on the basis of words but as a result of considering like
20
and unlike cases which cumulatively provide support for that decision.
Because
this process is not one of logical deduction in the scientific sense, legal
rulings are neither true nor false but only a choice among alternatives.
The
approach is one of reasoning by analogy, comparing like cases, and therefore
10
does not lead to a necessary conclusion.
As Justice Holmes pointed out, it
is a mistake to look at the law as a logical system akin to mathematics.
Though
use of the logical method is a crucial part of legal training, the application
of it does not lead to certainty in law, because such factors as "competing
/
legislative grounds," community practices, and social policies will always play
11
a role in judicial decisionmaking.
American legal realism
Holmes took a pragmatic approach to the law, viewing it as experience rather
than logic, and as a prediction of what courts will decide ( without suggesting
that such decisions can be predetermined with certainty).
y
In this he was at the
forefront of the American legal realist movement, which arose in the early twentieth century as an outgrowth of the intellectual realist school, formed in
opposition to formalism.
The latter had placed great emphasis on the role of
logic, mathematics, and a priori reasoning as applied to economics, philosophy,
and jurisprudence without relating these to the facts of daily existence.
On
the other hand, realism as an intellectual movement looked at philosophy and so-
/
cial science not as abstract studies but as concepts to be empirically applied.
The movement as applied to law became established in the 1920s, with Karl Llewellyn
as its chief spokesman.
a variety of jobs.
Llewellyn viewed law as an institution which performs
It consists of l) a group of rules organized around many
principles, 2) techniques such as the use of precedent, and 3) ideology consisting of values that comprise an important part of the whole institution of law.
Connected with it are many practices that govern how certain things are to be
1 09
JL Of-v
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done within the legal system.
To carry out these jobs, legal specialists utilize
a set of crafts developed for that purpose over generations.12
v/
According to
Llewellyn, participants in the realist movement viewed law as in a state of
motion, regarded it as a means to an end and not an end in itself, believed that
law may need continuous reexamination to see that it fits the needs of contemporary society, and recognized that legal rules describe what courts will do
rather than what they are actually doing at present.13
In Llewellyn's book A
^
^
Common law Tradition, published in I960, he argued that there is much predictability in case law, and that courts have swung back and forth between two styles—
the Grand Style, which pays more attention to principle and policy than to precedent, and the Formal Style, which is based on the idea that rules of law decide ^ J
cases and matters of policy are for the legislature.
The Grand Style predominated
in the nineteenth century, later giving way to the Formal.
pendulum has swung back toward the Grand.
In recent times the
But Llewellyn claims that the Grand
Style does not produce unpredictability in decisions; rather, it will allow
judges through their particular applications of precedent to reach reasonable
14
and just decisions likely to be approved by the community.
,
/
^
Social engineering
Another twentieth-century approach to the solution of legal problems was
that of sociological jurisprudence— the idea that law is just one of many methods
of social control.
Emphasis was placed on "law in action" rather than as revealed
through rules in textbooks.
Proponents of this view, among whom Roscoe Pound
was foremost, believed in using the techniques of social science to build a more
effective science of law, and stressed the importance of effecting social change'
through law reform.
school of thought.
Pound used the term "social engineering" to describe this
He saw law as a process of reconciling conflicting interests,
15
controlling them as necessary for the good of society as a whole.
In his vxew,
legal history was a "record of a continually wider recognizing and satisfying of
193
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human wants or claims or desires through social control; a more embracing and
more effective securing of social interests; a continually more complete and
effective elimination of waste and precluding of friction in human enjoyment
of the goods of existence— in short, a continually more efficacious social
engineering."16
Sociological jurisprudence recognized the need for a creative
17
judicial role in carrying out these aims.
Consensus lawmaking
The tenets of the legal realist movement and social engineering suggested
an active role for the judge in actually shaping the law.
Proponents of judicial
activism today argue that it is the judge's duty to formulate his decisions creatively on the basis of existing case law or statute.
Opponents of this view
caution against such an approach while at the same time recognizing a need for
limited judicial discretion.
Lord Devlin, who belongs to the second group,
has distinguished between "activist" and "dynamic" lawmaking: "In activist lawmaking the idea is taken from the consensus and demands at most sympathy from the
lawmaker. In dynamic lawmaking, the idea is created outside the consensus and,
before it is formulated,
it has to be propagated.
18
it needs enthusiasm."
This needs more than sympathy:
Devlin, however, disapproves of judicial enthusiasm
because he believes it destroys the appearance and reality of impartiality.
For
Devlin, it is essential that a judge appear to be impartial in fulfilling his
main function— removing the sense of injustice.
In his view, there would be no
sense of individual injustice if a judge appeared to be applying the law as
dissociated from his personal opinion.
Devlin disapproves of dynamic lawmaking,
which operates outside the consensus,19
and/thus does not think the judge should
take an active role in social reform.
(It might well be argued, however, that
this dynamic, or creative, lawmaking could do more to remove a sense of injustice
among those who feel unfairly treated by the legal system than would theeompletely
consensus -bound lawmaking favored by Devlin.) Devlin does make allowances for
20
limited judicial creativity within the consensus.
Dworkin's rights thesis
The legal scholar Ronald Dworkin finds even greater limits on judicial discretion. Dworkin has formulated the "rights thesis" —
"that judicial decisions
21
enforce existing political rights" which are the creation of history and morality.
In "hard cases"— those for which no established rule dictates a particular result—
judges have no discretion at all. According to the rights thesis, 2one
partyii always
2
has a political right to win and is entitled to rely on this right,
which "depends
upon both the practice and the justice of ja society'sj political institutions."^
The rights of the parties as determined by the courts are reflections of past political decisions,
Dworkin
distinguishes between decisions based on policy, which pro-
tect a collective goal of the whole community, and those based on principle, which
uphold individual or group rights (such as those secured by anti-discrimination
statutes).
Scope of Judicial lawmaking in England and the United States
Most persons would probably agree, however,that in actual practice a judge has
frequent opportunities to exercise his discretion in both case and statute law. An
examination of both of these areas will provide a background for further exploration
of the scope of judicial activism in England and America.
The common law
o
As has been pointed out, the twentieth century has not accepted the declaratory
theory's definition of precedent as simply a reflection of moral principles or longestablished customs.
But though it acknowledges that the common law is judge-made,
the English doctrine of precedent still imposes certain limits on the exercise of
judicial power. According to the traditional view, the judge, when deciding the
case before him, is bound by the principle upon which the previous case was decided,
25
and he may not refuse to act on it because he believes it is not a right principle.
The stare decisis doctrine that similar cases must be decided similarly is
common to both Britain and the United States and is one way in which the Anglo-
185
American common- law system is distinguished from continental judicial systems.
However, the doctrine is applied more strictly in Britain.
There it often has a
coercive effect, causing judges to follow the decisions of previous cases even
when they might have good reasons for not doing so.
The doctrine did not be-
come so firmly entrenched until the nineteenth and twentieth centuries with the
advent of several significant legal developments: an increase in law reporting,
the establishment of the present hierarchy of courts, and the assumption of the
judicial functions of the House of Lords by eminent lawyers.
The rule that the
House of Lords was absolutely bound by its past decisions was not firmly established until the end of the nineteenth century.
This rule was changed — and
the stare decisis principle thus relaxed — in 1966 to allow the Lords to depart
from a pst decision when theyfelt such a course was necessary.
The Court of
Appeal still follows the rule established in the twentieth century that it is
26
bound by its past decisions.
It has been argued, notably by Lord Denning,
that the Court of Appeal should adopt the House of Lords approach, which allows
courts the freedom to determine how and when to apply precedents to new circumstances, or whether to distinguish
present cases from past.
27
It is advantageous
in leaving room for maneuver.
Today the English precedent system is based on three main prinicples: l) a
single decision of a superior court is treated with respect; 2 ) a decision may
be persuasive even on courts above the court that decided the case; 3) a- single
decision of one court is always binding on the courts below it.
In addition,
appellate
pOcourts other than the House of Lords are bound by their previous decisions.
Yet there are ways to avoid an overly strict adherence to precedent.
A court may exercise the doctrine that if the case on which it would normally
rely overlooked a point in a previous case or
29statute, that decision was given
per in curiam and thus can still be reviewed.
In addition to the per incuriam
decision, there are other exceptions to stare decisis.
For example, a court
20
need not be bound by a previous decision if l) that decision conflicts with an
earlier decision by the same court, 2) it has been impliedly overruled by a
higher court, 3)the previous decision is either too broad or not in accordance
3D
. ^ n^
30
J.
with established principle."
The idea of precedent does not carry the same force in the United States,
*
where courts are not absolutely bound by their past decisions.
This situation
is due largely to the existence of so many state jurisdictions under the federal
system and to the frequency with which U.S. courts have to deal with constitutional
issues.
The large number of jurisdictions has produced many law reports, and
the resulting diversity of laws has led to the development of Restatements on
various legal subjects in an effort to formulate principles of case law that
are generally applicable to the whole country.
/
Under the case method of teaching,
which deals with case law from all the states, an attempt is made to reach conclusions about principles of law by looking at examples from many jurisdictions.
Judges trained according to this method and acquainted with the Restatements are
likely to be aware of recent trends, which they can consider in reaching their
J
decisions.^
In interpreting the U.S. Constitution, courts are often more interested in
examining the language itself than in referring to past cases construing those
terms. The more stringent method of applying precedent would not be appropriate
hecause the constitutional issues raised are of such great significance.
That
the Constitution is difficult to amend also helps explain why the Supreme Court
32
does not adhere as closely as do British courts to the doctrine of stare decisis.
When judges in either country decide - not to follow but to overrule precedents,
a problem is sometimes presented by the retrospective nature of this overruling.
Cbe of the attractive features of the declaratory theory was that it concealed
the retrospective character of judge-made law, by which, for example, in any
given month a judge may make a finding of liability where none had existed several
197
,
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10
months "before.
The theory asserted that the court was really doing no more than
stating a rule based on well-known principles.
To a large extent, retrospective
judicial legislation is inevitable, since past decisions cannot cover all the
33
possible legal issues.
However, in America the hazards of retrospective de-
cisionmaking can often be avoided by the practice of prospective overruling, which
allows a judge to limit the application of his decision to cases in the future
so as not to work an injustice on parties who had relied on the overruled precedent. This prospective application would be less logical, however, when there
-V
had been no reliance by the parties on any particular rules, as in tort cases,
Statute law
It is well established, then, that judges do exercise a legislative function
in determining the application of case law by analogizing from past cases or,
when confronted with conflicting cases, by generalizing in favor of one.
can apply the same process to statutory construction.
They
Even where the judge's
discretion is curbed by a very detailed statute and by the principle that the
court should narrowly apply the words of the statute only to cases covered by it,
he may still exercise freedom to apply what he regards as the real meaning.
Some
35
statutes lay down only broad principles on which the court can then expand.
Professor John Gray has suggested that these interpretive powers have only
undefined limits, because legislative acts— like judicial precedents, opinions
of experts, customs, and principles of morality— are really only sources of the
law and not the law itself.
In practice, legislative enactments are almost as
indefinite as the other sources because it is up to the courts to decide what
the statutory words mean.
Thus in reality the law cannot be divided into legis-
lative law and judge-made law, for all law is judge-made.
Statutes that guide
/
theconduct of the community have been shaped by the courts."7
198
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Nevertheless, judges may be reluctant to innovate in the field of statute
J
20
law because of their traditional background and training; they may decide that
changing the law should be left to the legislature.
The legislature may often
be the moreappropriate vehicle because it is free to make changes as it wishes
}
and to provide an abstract method of dealing with all future cases.
Judges,
bjr contrast, must deal with the issues before them and are subject to professional
37
opinion as to what is good law and to the possibility of being reversed on appeal.
On the other hand, the legislature may be more inclined to heed the pleas of
special groups.
Legislators are more likely to gauge their actions in terms of
their chances for reelection and are thus often reluctant to deal with controversial issues.
Then the judge is often called upon to fill the resulting void
with innovative decisions.
y
Lord Devlin contends, however, that the judge's duty is merely to interpret,
not obstruct, legislation.
Judges must look only at the ordinary meaning of
the legislative language and not at what they believe to be the philosophy behind
the act. Departing from the natural meaning can only lead to confusion.
Devlin
also disputes the idea that courts and legislatures are partners in lawmaking.
He points out that such a relationship would be impossible in England because
the executive and the legislature are not independent of each other, as they
are in the United States.
A judge would thus hav"'e to enter a partnership with
the government in power at the time, a situation that would undercut his role
39
v
as an arbiter between government and the people.
The view of judges and legislatures as partners may be an oversimplification
even from the American perspective, given the idea of judicial review and checks
and balances and the view of judges as watchdogs.
Even when a judge sees his
role as cooperative, however, he may have many choices as to how to perform it.
A law may have been ineffective in carrying out its policy or it may be outdated
as a result of social or technological change or changing public opinion.
The
action taken by lawmakers at a particular date might differ from the course they
199
/
12
would follow when the judge is called upon to interpret the statute at some
later time. In such cases, the judge may try to interpret the enactment without
considering the changed conditions that have resulted in the interval, or he may
ko
in his decision point out the absurdity of the provision.
In both England and the United States judges attempt to discover both the
plain meaning of the statutory words and the legislative intent.
The general
rule of interpretation in English courts now seems to be that the purpose and
context of the legislation should be considered in making a determination as
to the meaning of the words. However, if a judge believes that the application
of the words in their usual sense will produce an absurd result that could not
possibly have been intended
by the legislature, he may find in them some reason41
able secondary meaning.
Determining legislative intent is difficult for several
reasons. Legislative acts are usually the product of compromise rather than of
unanimous support.
Since Ideas change, it is difficult to determine the present
intent of statutes made in the past.
Moreover, legislatures could not have
1+2
formed an intent as to unanticipated future issues when enacting statutes.
y
Unlike American courts, English courts pay little attention to extrinsic
materials or legislative history when considering intent.
The reasons usually
given for this custom are the inconvenience of judges' having to read the debates in Hansard to find the statute's meaning and the time and expense involved
in using extrinsic materials.
The law Commission in 1969 favored admitting spe-
cially prepared material, rather than full reports of parliamentary hearings,
43
^
to help establish a context for statutory interpretation.
<- f*-*5*"' -wx
jfaso+O* 1 '
American judges have the benefit of the U.S. Constitution, which they may
/
interpret broadly or narrowly in determining the validity and application of
^y
statutes. Judicial interpretation is essential to ensure that the general principles of the Constitution will be upheld and the separation of powers maintained.
Because the boundaries of power between the branches of the federal government,
1)'
20
between state and federal governments, and "between state and state are defined
only in general terms, a referee is necessary.
The judiciary, with its tradition
of self-restraint, is the branch best suited for balancing these varied interests.
Ideas about what is just are subject to change, and constitutional interpretations
by the Supreme Court may reflect that change.
When the Court decides any con-
44
stitutional issue, it makes law.
By contrast, British courts, having no written constitution to rely on, cannot determine the constitutional validity of statutes.
and its laws binding.
Parliament is supreme
British judges do not consider the scope of governmental
authority to the extent American judges do.
^y
Factors influencing judicial creativity
In the areas of both case and statute law, English judges have traditionally
been less willing to act creatively than have their American counterparts.
eral factors account for this difference in attitude.
ture of the two governmental systems.
Sev-
First is the general struc-
Because of the complexity and confusion of
American law, as well as the diverse interests and lack of societal homogeneity,
an anomalous situation is created in which there are both a greater demand for
lawmaking by the legislature and a limited capacity for it on both state and
46
national levels.
State legislatures are often inactive, and on the national
47
level, committee chairmen may bottleneck the legislative process.
By contrast,
a single Parliament in Britain may be able to make law more effectively, and con48
sequently there is less need for judicial lawmaking.
Perhaps more important than governmental structure in shaping judicial atti-
i
tudes are the differences in social background, training, and methods of appointaent of the judiciary in the two countries, as well as the overall image of the
judge in the eyes of the public.
The English judge is generally seen as more
impartial than the American — a declaimer of what the law is rather than an
or
innovator— and his role is viewed as completely differen^t from that of the
/
5
14
49
legislature.
He is thought to he independent and not subject to public opinion;
his only allegiance is to the law. ^
v/
The English judiciary is chosen from members of the bar, which traditionally
has consisted mostly of members of the upper and upper-middle Qj^sses.
Studies
have shown that the vast majority of professional judges have attended public
(or what would be called in the United States^private) schools and either Oxford or Cambridge.
Until recently, barristers were required to have a private
income to survive the first years of practice; thus it was necessary to depend
51
on the kind of financial support that a well-to-do background could provide.
This uniformity of social background has undoubtedly contributed to a uniformity
of attitude in judicial decisionmaking, whereby the traditionally conservative
values associated with a judge's upbringing are reinforced.
Since the 1960s legal education has become more available and more barristers
have been able to make a living, partly because of an increase in legal aid.
\J
At the same time, a greater number of people from poorer backgrounds have been
admitted to the bar.
/
This trend may not always lead to a change in the types of
judicial decisions made, since general attitudes may not always affect specific
opinions, and a successful barrister may develop prevailing middle-class attitudes
regardless of his background.
Nevertheless, there are indications that the Eng-
lish bench, which has often been criticized for being conservative and out of
touch with the community, is becoming less remote from community affairs, and
often takes a more active role in social service and public activities.
There
are also signs that English courts have become more sensitive to public attitudes
53
in cases with social implications.
j
The American judiciary has traditionally been seen as less conservative than
the British, but perhaps its more liberal propensities are due in part to certain
offer{•;•„-. r.vr
features of the American legal system —
such as legal training and^political
involvement— as well as to the generally diverse nature of American society,
rather than to a social background that is 9significantly
different from that of
^9
20
British judges.
Studies of Supreme Court justices have found that they have
also usually come from uppeSr-middle-class families and (perhaps more important
as a shaper of attitudes) from families actively involved in political life.-^
Many studies have "been made which attempt to relate the social "background of
Supreme Court justices to their tendencies toward certain types of decisions.
Some of these, while not finding a direct causal relationship between these
background characteristics and particular cases, have uncovered general patterns,
including divisions along party lines.
Thus, for example, Democratic justices
have been shown more likely than Republican justices to favor a liberal position.
This trend is perhaps a reflection not so much of adherence to party line as of
the fact that the same values which cause judges to support a particular party
also influence the types of decisions they make.
It has also been demonstrated
that, as in England, such background traits are not always reliable predictors
55
of judicial behavior.
It is possible, however, that the political awareness
/
of the American judiciary, as enhanced by their upbringing and (as will be pointed
out later) by their involvement in the election process, might contribute to a
greater commitment to social reform than that demonstrated by their British
^
counterparts.
American*judges may also tend to interpret the law more broadly as a result
of their legal education.
In the United States professors and judges enjoy a
kind of partnership of which the judges are the dominant members, but judges
look to professors for Instruction and are influenced by legal writing.
judges have themselves been teachers.
Some
/
/
The judiciary and bar have been educated
in a system that emphasizes participation in social reform.
Courts are also
influenced by articles in student-run law reviews, which give, in addition to
statements of law, the writers' views on what the law should be.
In law school,
the future judge learns to think about policy and recognizes that the judge can
be a creative force in the growth and adaptation of the law.
jC
In both the American
j
20
and the English systems, students are taught about general legal principles as
developed through particular cases,^ but, as one commentator has noted, "The
English teacher emphasizes what the judge has said: the American professor ex57 The case study method in the United
plains what the judges should have said."-^
States, which emphasizes cases from both
state and federal jurisdictions,
e;8
vides greater diversity than does the British system of instruction.
The method of selecting judges is another factor accounting for differences
in the American and English attitudes toward judicial lawmaking.
In England all
judges are appointed, and most are selected exclusively from the ranks of barristers rather than solicitors (who may, however, be appointed recorders or stipendiary magistrates).
Certain judges in the British court system, including
those on the Court of Appeal and the House of Lords, are appointed by the sovereign on the recommendation of the prime minister; all others are appointed by
the sovereign on the recommendation of the Lord Chancellor, the only political
appointment.
In the House of Lords, the supreme court of appeal, all members
of the House can theoretically hear an appeal; in practice appeals are heard
only by the law Lords, specially appointed life peers, usually five in number."^
It has been suggested that all British judicial appointments are in some
sense political.
The Lord Chancellor heads a government department, which col-
lects information about members of the bar, from which senior judicial appointments
are made.
The extent to which a prime minister accepts the lord Chancellor's
recommendations or makes his own decisions varies with different prime ministers.
Judges may be considered politically independent in that they cannot be dismissed
by the government in power, but their promotion is in the hands of the Lord Chancellor, The possibility of achieving greater status as a result of promotion to
a higher court may at times exert pressure on judges to act in ways that will
enhance their reputations in the eyes of the Lord Chancellor or senior judges.
Political involvement in the United States is more pronounced.
204
There most
20
state judges are elected and must stand for reelection on their records.^
,
Even where judges are appointed rather than elected, politics may play an important role.
For example, all judges in the federal system are nominated by
the President and approved by the Senate.
Political leanings similar to those
62
of the appointing President are usually an informal requirement.
practice of "senatorial courtesy,"
By the
where federal district judges are nominated
by senators from the state in which the district is located, other senators may
block nominees they do not like.
Supreme Court justices are often chosen on
the basis of their political philosophy, but once appointed, they may not always conform to the popular perceptions of this philosophy,
A judge who has
life tenure64
may develop a sense of liberation that can lead to greater accomplishments.
These types of political involvement may help to make judges
more sensitive to social issues.
The judge and social reform
As a result of these various factors, English and American judges have developed different views about the types of interests they have a duty to serve
and, more generally, about whether or not the judiciary should assume an active
role in shaping social change.
Although courts in both countries have often
tried to conceal the fact that they are making choices based on policy considerations, it is now generally recognized that much judicial decisionmaking is based
on value choices involving concepts of morality and justice.
Judges cannot avoid
being influenced by the values of society around them or of the 13T own Pa.rticular
65
group. v
Though the judge will inevitably be influenced by the prevailing values and
opinions of the society in which he lives, to what extent should he allow his
/
decisions to be guided by these attitudes? Should he himself attempt to mold
""""
/
social values? As noted earlier, Lord Devlin would answer this question in the
negative; he opposes "judicial operation in advance of the consensus," ^ and
205
20
feels a judge should not proceed if he is in doubt about the support of that
consensus.
He believes that judges are not agents of social reform and should
fn
not be concerned with social justice.
According to Devlin, in a time of great
social change, " [ijt is essential to the stability of society that those whom
change hurts should be able to count on evenhanded justice calmly dispensed,
68
not driven forward by the agents of change."
Justice Cardozo spoke of law as the "expression of customary morality," based
r
on "standards or patterns of utility and morals thatJ will be found by the judge
69
in the life of the community."
According to Cardozo, a judge should not impose
his own peculiar beliefs on the community, but he nevertheless has power to "raise
the level of prevailing conduct" when practices develop in
70a certain area that
are not in line with the moral standards of that society.
In a similar vein, Lord Radcliffe has suggested that the doctrine of public
policy has as its function "realizing the true ideals" of the society.
It is
y
not a policy connected with the current government or with particular
legislative
71
policies— these concern only practical or material interests.
The only perma-
nent public policy for England, says Radcliffe,
is "to nourish and enrich the
72
growth of each individual human spirit."
Radcliffe points out that the English
bench has traditionally been hesitant about admitting its concern for public policy,
partly because of the notion that it must defer to laws made by the legislature
and interpret them as faithfully as possible.
He maintains that judges have a
duty to see that the public interest is served on a deeper level than that prO- rio
vided for by the legislature, whose members have temporary, political interests.
The judge must have a conception of the public interest that is "related to some
4
more fundamental assessment of human values and of the purpose of society."''
Thus, to the extent that a judge must take Into account the social mores of
the times, he is not free to be arbitrary.
He is, however, as Karl Llewellyn
suggests, free "to be just and wise" in recognizing that the legal system must
/Ou'J
y
adapt to individual cases and to changing social conditions.
This is an idea
which Llewellyn believes is "a vital part of our legal system and of our judges'
duty. There is the law, which we know as impersonal and think of as clear; there
is the right outcome, which we feel as also impersonal, and think of as hard to
find, but capable of being found, and the office of the judge is to fulfill the
75
demands of both, together."
J
To achieve this end, it may sometimes be necessary to venture beyond the
consensus of a given moment in order to realize the true long-term ideals of V
society. In confronting the great social issues that have preoccupied America
and Britain in the latter part of the twentieth century, judges are often given
opportunities to act in advance of, but not against, the prevailing consensus,
starting from established values and extending them as necessary to promote justice. This can most effectively be done when the judge is faced with ambiguities
in legislation.
When interpreting a statute enacted to serve a meritorious so-
cial purpose, he has a duty to resolve such ambiguities in a way that will not
only ensure fairness to the individuals involved in the case before him, but
also serve the long-run interests of society as a whole.
In doing so, he must
"keep his mind constantly sensitive to the underlying beat of his own period
76
of history,"
but not ignore his role as an interpreter of that underlying
teat, As Louis Jaffe has pointed out, even though a people may profess a belief in civil liberties,
77 these freedoms would in many cases not be upheld without
judicial intervention.
The idea of judicial neutrality is a myth insofar as it sees judges as merely
arbiters in conflicts without policies of their own.
partial and independent and still not be neutral.
They may be politically im-
Lqd Devlin's distinction be-
tween consensus and nonconsensus law may be hard to draw, since many statutes are
enacted that contain aspects objected to by the electorate.
207
If the judiciary
assumes an activist rather than a neutral role, then it must act in controversial
matters involving the public interest.
English and American judges have often taken different views of the nature
of this public interest and the extent to which they must act to advance it.
J.A.G. Griffith
suggests that the English judiciary considers that interest to
lie in l) the Interest of the state and the preservation of law and order, 2) the
protection of property rights,and 3) the promotion of political views associated
with the Conservative Party.
In their concern with preserving law and order,
British judges have not been equally concerned to protect the individual against
state power; in particular, they have given little support to minority groups.
English courts have been more interested in protecting property rights against
encroachment by government than they have in safeguarding civil liberties.
The
judiciary regards defending personal rights as a means of weakening traditional
institutions, a course it is reluctant to follow.
According to Griffith, English
• It
* judges are part of the government of the state and regard their function as prefix
serving the stability of the system by resisting attempts to change it. Griffith
contrasts this attitude with that of the U.S. Supreme Court, which ha,s not been
afraid to assert fundamental values.
79
The judicial concern with stability is evident in the philosophies of several
of the country's most distinguished law Lords.
Yet their attitudes may not be
as one-sided as the foregoing description suggests.
And, as is true of Supreme
Court justices, their public positions have not always been reflected in their
decisions. Lord Radcliffe, who served in the House of Lords between 19^9 and
1964, may have epitomized this particular conflict, which was especially evident
in his approach to public law.
On the
one hand, he often expressed his concern
for individual liberty; on the other, his desire to support authority and maintain order led him to attack Parliament's passage of the Pace Relations Act of
1968 as an attempt "to shape moral attitudes."
208
But he thought statute law infer-
ior to "real" law, which was similar to fundamental law, and this belief led him
21
to take a flexible approach to the interpretation of statutes.80
Lord Reid, the most influential judge in the House of Lords between 1948
and 1974, cautioned against too much judicial flexibility in the development of
the common law and thought cases involving great divisions in public opinion
should be left to Parliament, but he did recognize the need for a judge to apply
public policy to the solution of new problems.
In Shaw v. Director of Public ^iV^^
Prosecutions, he said it was up to Parliament, not the courts, to decide how
far to extend the law of conspiracy.
terpretation should be mechanical.
But he did not believe that statutory inHe realized that statutory language must
sometimes be inconsistent and unclear and for that reason suggested that judges
should read legislative acts as a whole rather than concentrating too meticulously
on details of phrasing.
81
^y
/
Lord Denning (in the House from 1957 to 1962) , who has been called the most
interesting and perhaps the most important English judge of the twentieth century, did not share the sense of judicial restraint evidenced by Radcliffe, Reid,
82
and Devlin.
He has been criticized for the "Denning method," a liberal approach
to precedent and statutory construction involving "the use of all possible avenues
to counter a course
00 of action which in his view would have disastrous consequences
for the nation."
Denning thought appellate judges made law and that they should
do so, calling certainty in law an "overrated virtue."
He emphasized the inevi-
tability of judicial creativity in the common law. At the same time he objected
to the idea that judges should pull apart the language of Parliament to reach
a decision when interpreting statutes.
Nevertheless, his strong moral sense—
which caused him to deplore the decadence of society but also probably shaped
his civil libertarian tendencies— led him to interpret broadly the Race Relations /
Acts of 1965 and 1968.^
n/
As one reason why British judges have been perceived as not fulfilling their
lawmaking function, Lord Devlin points to the example of the U.S. Supreme Court,
209
20
whose own activism has served, to underscore the relative lack of activism on
the part of the British judiciary.
Devlin claims that the Court, particularly
in the fields of voting rights, racial desegregation, and criminal procedure,
has often legislated where the consensus was nonexistent or doubtful.
He con-
tends that the Court can do this because it has the Constitution and a "legisoe
lative vacuum to fill."
Other factors— including the separation of powers
doctrine, distrust of legislative majorities, and "a strong current of natural
rights" — have also helped sustain "the creative lawmaking authority of [Ameri86
can] judges."
In general, "American courts have been more open to new challenges,
more willing to take on new tasks.
their way —
This has encouraged others to push problems
so much so that no courts anywhere have greater responsibility for
making public policy than the courts of the United States."
At the same time,
however, the difference in scope of judicial power in England and America may
be chiefly one of emphasis, since there have been periods of both greater creativity in Britain and less creativity in the United States.^
Judicial Treatment of Race Relations Legislation
j
^k.
As we shall see in the following discussion, American judges do tend to
interpret the law more broadly than do their British counterparts, but their
decisions are not necessarily conscious efforts to make new law, any more than
British opinions strive scrupulously to interpret legislation in the most cautious
wai^ possible. A blend of restraint and activism is evident in the two judiciaries'
treatment of cases under race relations statutes enacted during the past two
decades.
Britain: The Race Relations Acts
After many years of pressure and urging by proponents of a law to prohibit
racial discrimination, the Race Relations Act of 1965 was finally passed.
It
20
was designed to prohibit discrimination in places of public resort but did not
cover employment and housing.
ment to racial hatred.
It also created the criminal offense of incite-
In 1968 the 1965 Act was replaced by a new statute that
0
f
prohibited discrimination (.on the basis of race, color, or ethnic or national
origin, but not nationality) in the provision of goods, services, and facilities,
including education, employment, and property transactions.
vision concerning incitement to racial hatred.
It retained the pro-^X
The most recent statute, the
Race Relations Act 1976, which replaces the 1968 law, is broader in scop-e. It
deals with both direct and indirect discrimination on the basis of color, race,
ethnic or national origin, or nationality, and makes such discrimination unlawful in employment, education, housing, and the provision of goods, facilities,
or services to the public.
The Race Relations Board provided for in the 1968
Act, to which all complaints of discrimination had to be addressed, has been replaced by the Commission for Racial Equality, which has greater enforcement powers.
In addition, complaints may now be taken to an industrial tribunal in employment
cases or to a county or sheriff court in all others.
The section on incitement
y
88
has been made an amendment to the Public Order Act of 1936.
Griffith contends that British judges have tended to regard the Race Relations
Acts as a form of interference with the rights of an individual to discriminate
89
/
and have thus attempted to curb the impact of the laws as much as possible.
It can be seen from the following discussion, however, that this attitude has
not prevailed in every case, and that caution and creativity are often well
^
balanced.
The 1968 Act: Specific Gases. Ealing London Borough Council v. Race Relations
90
Board
offers an example of a court's cautious approach toward interpreting statu-
tory language.
The principal question in the case concerned the meaning of
"national origins" in the context of section 1 of the 1968 Act. A Polish citizen
211
who had been a long-time resident of Britain but was not a British subject was
20
denied the right to be considered for housing accommodations because of the
local housing authority's policy that all applicants must be British subjects.
The Race Relations Board filed a complaint on behalf of the applicant, Mr. Zesko,
alleging that he had been unlawfully discriminated against on the basis of national origins in violation of section 1. After the High Court refused to grant declarations requested by the housing council that it was not in violation of the
Act, the . council
—'' """appealed to the House of Lords.
In trying to reach a decision, the lords acknowledged the vagueness of the
statutory wording, but, rather than attempting to give the phrase "national origins" its broadest — and perhaps most natural— meaning, they ultimately restricted themselves to a narrow interpretation.
Pointing out that the Act in-
cluded no definition of national origins, Lord Donovan suggested that the phrase
must mean something different from "nationality" or the draftsmen would presumably
have used the latter word, as they did in subsequent sections.
He concluded that
national origins referred to the nationality received at birth, as distinguished
from present nationality.
Thus, though Zesko had been born a Pole, his applica-
tion was refused not because of that but because at the time he made it, his
nationality was British.
Viscount Dilhorne examined language from both the 1968 and the 1965 Act to
show that "national origins" was intended to apply to race rather than citizenship, and that it was the latter which provided the basis for the council's discrimination (not illegal under the Act).
He supported his argument by pointing
out that after Zesko became a naturalized British subject, he was placed on the
council's waiting list despite his Polish origin.
Lord Simon of Glaisdale agreed with the interpretation of Donovan and Dilhorne, which he felt was supported by the legislative intent.
He rejected the
argument advanced by the respondents that "national origins" was wide enough to
include its exception, "nationality,"
Instead, he maintained, "courts will look
for unambiguous expression, and in the event of ambiguity, will prefer the nar-
20
rower construction. it91
Lord Kilbrandon, in dissenting, criticized the practice of forbidding judges
access to sources that would help illuminate the intent of Parliament, which he
said left them in the unpleasant position of having^' grope for or speculate about
this intent in cases when it was particularly unclear.
He argued that because
of this uncertainty, "national origins" could be interpreted either way.
Unlike
the majority of the lords, he took a creative position, looking beyond the statute
itself to the likely results of its application: "I have come to the conclusion
that on a consideration of the Acts as a whole the interpretation contended for
by the respondents leads to a result less capricious and more consistent with
reality than that proposed by the appellants . . . ."
92
In Charter v. Race Relations Board,93 the House of Lords was again required
to look closely at statutory language; this time it also drew conclusions about
the parliamentary intent in formulating that language.
At issue was whether a
private social club was in violation of section 2(l) of the 1968 Act in refusing
membership to the complainant, an Indian, on the basis
race.
Section 2(l)
made it unlawful "for any person concerned with the provision to the public or
a section of the public . . . of any goods, facilities or services to discriminate
against any person seeking to obtain" them.
The lords had to decide whether the
club offered its facilities to "the public or a section of the public" within
the meaning of the Act.
Expressing the holding of the court, Lord Reid pointed
out that private clubs are allowed to accept members on whatever bases they find
acceptable, even if such grounds are racial, and that it was not the intention of
Ikrliament to restrict this purely private practice in the 1968 Act.
Thus the
words "public or a section of the public" were intended to have a limiting effect.
However, said Reid, this aspect of privacy could be removed from a social club if
its rules did not provide for a true selection process, thereby rendering membership a mere formality.
Because the House of Lords found nothing in the selection
procedures of the East Ham South Conservative Club to indicate thay they were
not genuine, it held that section 2(l) of the Act did not apply, and the exclusion of the Indian applicant could not be considered unlawful.
Lord Morris Borth-y-gest, in his dissenting opinion, gave a broader interpretation to the statutory language by drawing a much narrower distinction between public and private.
According to him, the words "public or a section of
the public" were not limiting but rather all-embracing.
They would include the
membership of the East Ham Club because the club provided facilities and services
not to the public as a whole but to a section of the public — services that, as
enumerated in section 2 ( 2 ) of the Act, included "facilities for entertainment,
recreation or refreshment."
He contended that the aim of the section was to
draw a distinction not between public and private groups but between facilities
provided for the public as a whole and those provided for only a section of the
public. Furthermore, since no mention was made of private clubs in the section
of the Act listing activities that were not unlawful, Lord Morris concluded that
an exception for private clubs could not logically be found in the section describing what was unlawful.
He thus construed the statute in a more imaginative fashion than the majority
of the lords, basing his conclusions largely on what he conceived to be the social
policy behind the Act: "What Parliament has as a matter of policy provided is that
subject to certain defined exceptions, that type of discrimination which is made
unlawful is just as unlawful where groups of the public are concerned as it is
94
where members of the public at large are concerned."
For Morris, this pro-
scription of discrimination on racial grounds was "a new guiding principle of
95
fundamental and far-reaching importance . . . ." ^
His opinion in Charter indi-
cates that he believed the judge could play an important role in seeing that this
policy was carried out.
this far.
The majority of the court, however, was reluctant to go
They were less reluctant to adapt language to policy in a later case, Applin
96
v. Race Relations Board,
which also involved section 2(l) of the 1968 Act.
The defendant in the case had objected to the acceptance of nonwhite children
into a private home operated as a temporary home for foster children and had
attempted to incite the owners of the house to discriminate against such children
(an offense under the Act).
He argued that because the children should be con-
sidered family members, they did not comprise a "section of the public" and hence
a refusal to accept them would not be unlawful.
The court looked at "the natural
meaning of the words" to arrive at its conclusion that the children were indeed
a section of the public within the meaning of the Act.
It found that even though
the children were treated as members of the family, the large number of children
involved and their short stay in the foster home precluded the establishment of
a true familial relationship.
The majority of the court, in adopting this somewhat creative approach, evidently did not agree with the less activist views of dissenting Lord Wilberforce,
who urged that the broader interpretation "represents an undesirable and impractical intrusion in the spheres of private decision and one which is not likely to
97
advance the cause of improving race relations."
In fact, however, it may have
been precisely the idea of improving race relations in the interests of social
justice that motivated the decision of the rest of the court.
The Court of Appeal
more cautiously in Race Relations Board v.
r.
. , performed
> t-f^ ,
' 98
Associated Newspapers.
In that case the court held that an advertisement for
A
nursing jobs in South Africa which included the phrase "all white patients" was
not discriminatory under section 6(l) of the 1968 Act (prohibiting the publication of an advertisement that"could reasonably be understood as indicating an
intention to do an act of discrimination").
The Race Relations Board had main-
tained that the ad was unlawful under section 6 because it implied that only
white nurses would be accepted.
Applying the test of the "natural and ordinary
91
^
/CJLO
20
meaning of the words," Lord Denning in his opinion contended that the intent of
the person who submitted the ad was a question for the ordinary, reasonable, and
not overly suspicious trier of fact.
Although admitting that there could be valid
arguments on both sides, Denning, supported by the other two judges, decided to
accept the opinion of the county judge and assessors that there was no violation
99
of the Act.
In dealing with such a "nicely balanced question,"
to use Denning's
phrase, there would have been ample room for judicial initiative in reaching the
opposite conclusion (assuming that Denning was correct in asserting that reasonable people could differ on the issue), presumably without much fear of sparking
widespread criticism.
In this instance, Lord Denning took a position seemingly
inconsistent with his liberal reputation.
The 1976 Act.
The restrained approach of the Court of Appeal was again evi-
dent in Leyland Cars v. Vyas,^^ a case arising under the Race Relations Act 1 9 7 6 .
Here the court, showing the concern for the preservation of stability and order
typical of British judges, tried to balance the right of an individual to be protected from discrimination against the interests of businesses and public concerns
to protect the confidence of their employees.
In Leyland, the Asian plaintiff
alleged that his employer, Leyland Cars, had discriminated against him on the
basis of race in violation of the 1976 Act.
His request for a transfer to another
position in the company had been refused and two white employees who he claimed
were less qualified than he had been transferred in his place.
He sought dis-
covery under section 6 5 of the Act of documents relating to the transfer.
After
the Employment Appeal Tribunal ordered discovery, Leyland appealed to the Court
of Appeal.
It contended that to reveal the information sought, which concerned
the promotional prospects of the employees, would be a serious breach of faith.
Lord Denning described the dilemma confronting the co-art: "On the one side
stand the new statutory commissions.
They seek to stamp out discrimination . . .
and, to do so, they wish to see all the documents relating to it, no matter how
216
confidential.
On the other hand stand the great concerns who employ men and
women in the public service and in industry.
They seek to keep faith with those
who work for them, to preserve confidence, and to avoid the unrest which they
101
feel would inevitably flow from a breach of it."
Parliament, said Denning,
had not provided any solution to the problem of balancing these interest; hence,
it was up to the court to decided how best to do so.
In Denning's view, Parlia-
ment had exceeded its bounds in granting statutory commissions such r"i
astik?
the To
Commission for Racial Equality wide inquisitorial powers, including the^demand to
examine confidential documents.
He decided that as a matter of significant public
interest, such reports should be kept confidential and tribunals should never
order their disclosure except when102
discovery of a specific document was "essential to the interests of justice."
Denning emphasized that justice must be
done not only to the party demanding discovery but to the employer as well.
Lord Iawton stated that the decision whether to permit discovery was a matter
of discretion for the tribunal.
He did not accept the premise that there should
be a blanket immunity for all confidential documents under the guise of public
interest, because to grant such an immunity would frustrate the intent of Parliament.
It is apparent that the members of the court were not insensitive to questions of policy and social welfare; rather, they were concerned with balancing
two types of social needs— on the one hand, nondiscrimination in employment,
as mandated by statute, and, on the other,103
as Lord Browne phrased it, the "moral
and social duty not to break confidences,"
a more traditional and general
interest. They reached a compromise by quashing the order for discovery and
ruling that any documents must be examined by the chairman of the tribunal to
determine whether in the interest of justice their confidentiality should be
^y
breached.
The plaintiff then appealed to the House of Lords, which affirmed the Court
of Appeal's decision.104
There Lord Wilberforce rejected the view, as had Iawton,
217
20
that the documents in this case could fall into a category of public interest
immunity, but neither did he accept the plaintiff's contention that Parliament
had. intended in the Race Relations Act to prohibit any immunity for confidential information.
This awareness of the need to promote social justice was apparent also in
105
Zarczynska v. Levy,
^ a case that came before the Employment Appeal Tribunal
(one of whose three members was a judge).
The tribunal conceded that it was
concerned less with the precise meaning of certain language in the 1976 Act
tha& with parliamentary intent, and asserted the right to read into the language a meaning that would support this perceived intent.
The appellant, a bar-
maid, alleged that her employer had discriminated against her in violation of
section l(l)(a) of the Act because he had fired her when she refused to comply
with his instruction not to serve nonwhite customers.
The industrial tribunal
to which she complained held that it had no jurisdiction over the case, since
the barmaid had not been personally discriminated against on racial grounds.
The appeal tribunal sympathized with the confusion of the lower tribunal in
trying to decipher the often unclear parliamentary language_, but was not prepared
to accept what it regarded as an unjust result and looked for a way out of the
dilemma.
It examined section l(l)(a), which provides that a person discriminates
against another if "on racial grounds he treats the other less favorably than he
treats or would treat other persons."
The critical question, said the tribunal,
was "whether the words used can be construed, or in order to do .justice, ought
to be construed, so as to cover" the present case (emphasis added).
It reached
the conclusion that the employer had indeed discriminated on racial grounds by
dismissing a barmaid who insisted on serving nonwhites but not dismissing one
who refused to serve them.
To support this contention, the appeals tribunal
suggested that the other provisions of the Act simply explained or offered remedies for breach of the general principle stated in section 1 and thus did not
218
/
20
restrict that general principle.
It admitted that this construction might in-
volve reading the intent of Parliament into section 1 but found such an approach
valid in order to prevent the creation of "an absurd or unjust situation which
107
Parliament would not have intended if they had contemplated its possibility."
Here it decided that focusing on parliamentary intent rather than on "the meaning of individual words and phrases" was justified to prevent a great injustice
1 OS
and to uphold the "great civilised principle on which the 1976 Act was based."
This is a decision that in spirit accords with the philosophy of many Ameriv/
can courts in their approach to social legislation. Examples of the operation
of this philosophy can be seen in cases interpreting Title II, the public accommodations section, of the Civil Rights Act of 1964.
lot
United States: Civil Rights Act of 1964, Title II
Title II of the Act prohibits (section 201(a)) discrimination in public accommodations against anyone on the basis of "race, color, religion, or national origin." Public accommodations are classified into four types under section 201(b):
l) "any inn, hotel, motel or other establishment which provides lodging to transient guest5," 2) restaurants or other such facilities "principally engaged in
selling food for consumption on the premises," 3) places of "exhibition or entertainment," including movie theaters, concert halls, etc., and 4) establishements
located within the premises of covered establishments.
Constitutional interpretation.
In any interpretation of national legislation,
American courts, and particularly the Supreme Court, have an important tool not
available to British judges — namely, the U.S. Constitution.
/
In attempting to
bring statutes within, or to exclude them from, the scope of powers allowed by
the Constitution, American courts have considerable latitude because so much
v/
of the language in the Constitution is subject to a wide variety of interpretations.
Not long after the passage of the Civil Rights Act, the constitutionality of
Title II was challenged in two important test cases, Heart of Atlanta Motel v.
O
/C.
20
110
111
United States
and Katzenbach v. McClung.
In both instances the Supreme
Court found the Act constitutional, using a reasoning process that relied on
past judicial interpretation of constitutional phraseology, legislative history,
and policy decisions.
In Atlanta, the owners of a motel located near several
interstate highways filed suit in order to continue their long-time policy of
refusing to rent rooms to blacks, alleging that in passing the Civil Rights Act
Congress had exceeded its power to regulate commerce under Article I of the Con112
stitution.
The Court considered the legislative record as revealed in pre-
vious cases to reach the conclusion that Congress had sufficient power to pass
the Act under the Commerce Clause.
It pointed out that the hearings on the bill
held in each house offered much evidence of the burdens that discrimination put
on interstate commerce, and emphasized in particular the hardships imposed on
Negroes who wished to travel.
The Court referred to past cases,
113 and particularly
to the statements of Chief Justice Marshall in an 1824 case,
in asserting that
"the determinative test of the exercise of power by the Congress under the Commerce Clause is simply whether the activity sought to be regulated is ' commerce
which concerns more states
1 1 4 than one' and has a real and substantial relation to
the national interest."
had met this test.
It found that in passing the Civil Rights Act Congress
The Court claimed that Congress' intent to remedy a moral
wrong did not detract from the fact that it had power to legislate based simply
on the disruptive effect on commerce caused by discrimination.
Yet the Court's allusion to the idea of a "moral and social wrong,"
115
which
was not necessary to the development of arguments leading to its decision, strongly
suggests that its perception of the need to correct a social evil was an Important factor behind its willingness to uphold the congressional action.
The Court
acknowledged that determination of the means for removing an obstruction to commerce is within the "exclusive discretion" of Congress, subject to orrly one caveat— that these means be "reasonably adapted to the end permitted by the Conor
116
stitution.if
Whether such reasonable adaptation exists is within the power
of the Supreme Court to decide, and here the Court chose to exercise that power
in the interests of social justice.
The Court relied on similar arguments in the companion case of Katzenbach,
which considered the application of Title II to a restaurant that catered to
white customers but provided only take-out service to blacks.
A federal district
court had held that Congress was not entitled to find that discrimination in a
restaurant would affect commerce simply because the restaurant served food to
interstate travelers or because a substantial portion of the food had moved in
interstate commerce.
The Supreme Court, once again referring to findings made
in congressional hearings on the Act (which included much testimony as to the
restrictive effect of discrimination in eating establishments on travel by blacks)
concluded that Congress had ample grounds for deciding that in areas where discrimination in restaurants was common, restaurants sold fewer interstate goods,
travel was obstructed, and business in general suffered.
justified In considering
The Court found Congress
the nationwide as well as the local impact of such dis-
crimination.
As in Atlanta, the Court pointed out that the only requirement "for finding
a chosen regulatory scheme necessary to the protection of commerce" was that
117
Congress have a rational basis for its decision.
The Court again stressed
that the power of Congress is broad, and the Court will not interfere "where it
keeps within its sphere and violates no express constitutional limitation . . . ."
It is important to remember, however, that the power to decide whether Congress
had kept within its sphere rested with the Court.
Had it not obviously felt,
as shown in both Katzenbach and Atlanta, that racial
1 1 9discrimination was "a
national commercial problem of the first magnitude"
as well as a moral
social wrong, it might well have x'uled the other way.
Congress had already
taken the bold first step toward social reform in the area of civil rights;
20
the Supreme Court may have viewed itself as a partner in this effort.
Statutory construction.
When not dealing solely with questions of constitu-
tionality, American judges consider the same types of factors that influence
British judges —
questions.
legislative intent, plain meaning of language, and policy
In United States v. Gulf-State Theatres, Inc.,i2° a federal district
court focused on legislative intent in finding that a movie theater chain that
refused admittance to blacks was in clear violation of the entertainment section
of the Act.
The court rejected the respondents' contention that this section of
+
the Act was unconstitutional because there was no rational basis for Congress to
find that eliminating discrimination in movie theaters showing films that moved
in interstate commerce would affect that commerce.
It pointed out that where,
as here, the question of effect on commerce was debatable, "resolution of that
question is for Congress and the finding
of a court arrived at by weighing the
1 21
evidence cannot be substituted for it."-
Again deferring to congressional
discretion, the court refused to accept the defendants' argument that the exclusion of Negroes from one of the theaters in the chain was for a purely economic
reason — that blacks were unacceptable to white patrons on whose support the
theater depended.
Congress, said the court, intended to exclude racial discrim-
ination regardless of the motives behind it; the "Act is not concerned with the
122
subjective racial prejudice of the people affected."
Where the court in Gulf-State discounted motive in order to uphold the application of the statute, a different court, in United States v. Northwest Louisiana
123
Restaurant Club,
relied on motive to reach a similar result.
The Northwest
Louisiana Restaurant Club had been incorporated as a private club on the eve of
the passage of the Civil Rights Act.
Its voting members were the owners of
approximately one hundred restaurants in Shreveport, Louisiana.
In addition,
nonvoting membership cards were issued to white customers without any qualifications, but memberships were denied to blacks.
The court found that the group
20
was not a genuine private club but only a "sham organization" whose sole purpose was to exclude Negroes from eating in the member restaurants.
The court
applied a subjective test in holding that "it was the intent and purpose of the ,
124
members of the Club to accomplish such discouragement and deterrence."
s
^
One commentator has objected that the court's inquiry into subjective intent
infringed on the right of privacy and personal association and that it should have
examined instead the objective factors, including actual economic benefit to all
the members, normally considered in such cases.
Under this view, any private 125
club has a right to exclude anyone for any reason, including racial prejudice.
It is clear, however, that the court believed it had a responsibility to ensure
that no one avoided the prohibitions of the Civil Eights Act through subterfuge.
In carrying out this duty, it apparently felt that examining the motive behind
the unlawful act was justified.
(The court's decision can be contrasted with
the more conservative position of the House of Lords in the private-club case
we have already examined— Charter v. Race Relations Board.
Its activist views
more nearly resemble those of the Charter dissenter, Lord Morris Borth-y-Gest.)
Legislative intent was again a factor in deciding Newman v. Piggie Park
i
Enterprises, Inc.,
where a federal court used it as an aid to creative statu-
tory interpretation.
The question in the case was whether a drive-in restaurant
was covered by the section of Title II proscribing discrimination in certain
types of eating establishments.
At Piggie Park drive-ins, which denied service
to blacks, customers placed orders through an intercom while remaining in their
automobiles and then either left with the food or consumed it in their cars.
The owners of the drive-ins contended that because the applicable section of
the Act applied to a facility engaged in selling food for consumption on the
premises," and only fifty percent of Piggie Park's food volume was consumed on
the premises, Its exclusion of blacks was not prohibited by that section.
The court rejected that construction as contrary to legislative intent and
20
sought to interpret the section in accordance with its perception of this intent.
In so doing, it decided that drive-in restaurants were indeed covered.
The court
concluded that in the diputed phrase the emphasis should he on "food" and not on
"principally," especially in view of the fact that "principally" did not appear
in the bill as first introduced.
The addition of the word, according to the court,
was not connected with the amount of food consumed but was merely intended to
exclude from coverage those facilities in which food service was incidental to
other business.
"For consumption on the premises" should be seen as modifying
the word "food," and was intended to describe the kind of food sold by the facility (thus distinguishing restaurants from grocery stores).
That the court took
this expansive approach was perhaps due to the considerations of policy suggested
by its closing remarks: "When a substantial minority of American citizens are
denied restaurant facilities— whether sit-down or drive-in —
that are open
to the public, unquestionably interstate commerce is burdened . . . .
It was
this evil that Congress sought to eliminate to the end that all citizens might
127
freely and not inconveniently travel between the states."
Other courts have also demonstrated the ability to combine creatively a
more-or-less straightforward reading of statutory language with a more subjective appraisal of the intent behind 1.28
that language.
the Supreme Court in Daniel v. Paul,
This was the approach of
where a recreation facility in Arkansas
that denied admission to blacks was held to be a "public accommodation" under
the Act. The lake Nixon Club was a 232-acre amusement area that offered swimming, boating, .picnicking, and other forms of recreation, and contained dancing
facilities and a snack bar.
To find that the club was a facility serving food
to interstate travelers or food that had moved in interstate commerce, the Court
pointed to the fact that the club advertised widely throughout the area, presumably to attract out-of-state travelers, and that the ingredients in the
limited selection of foods offered in its snack bar were obtained from outside
OO/I
20
the state.
In ruling that the lake Nixon Club was covered as a place of entertainment,
y>
the Court took even greater leeway in its interpretation of language, basing
its conclusions on legislative history.
The club owners had argued that "place
of entertainment" referred only to establishments where patrons were entertained,
rather than to those in which they themselves participated in the recreational
activity. To refute this contention, the Court cited a statement made by President Kennedy in submitting the public accommodation provisions to Congress which
deplored the evil of barring black citizens "from restaurants, hotels, theatres,
129
recreational areas," and other facilities.
The Supreme Court used this state-
ment and others from congressional debates to support its conclusion that "place
of entertainment" was not limited to spectator entertainment.
Though it admitted
that most congressional discussion had focused on spectator entertainment and not
recreational areas, the Court did not regard this fact as restricting the scope
of the section to "the primary objects of Congress* concern when a 1 natural
reading
^o
of its language would call for broader coverage" (emphasis added).
It further
declared that this interpretation of the scope was in keeping with the "overriding
purpose" of the legislation to remove the humiliating denials of access to facilities supposedly open to the public. Thus once again the Court indicated its J/ /
intent to further social justice through expansive decisionmaking.
J
Conclusion
It is often argued that lawmaking should be left to legislatures and that
the judicial role in this process should be severly limited.
In fact, however,
though the legislature of course fulfills an important function, it is not always
equipped to make the best laws.
Statutes may sometimes be drafted hastily, with-
out due consideration of their future effects, by people untrained In lav?.
Courts,
on the other hand, work more deliberately; they deal with the concrete situation
before them and can foresee the results of their decisions.
131
When there is no
y
20
well-informed, majority to spur the legislature to action, the judiciary may
protect minority interests and exercise a social responsibility that might not
be exercised by the other branches of government.
Judicial intervention may
132
in turn stimulate a legislative response.
There is, of course, always the danger that an activist judiciary will overstep its bounds, that it will become dogmatic and fail to consider opposing interests or to maintain a sense of proportion.
Eut even the most creative judges
usually possess a basic conservatism that will occasionally manifest itself.
Moreover, though a court may guide public opinion, "if finally it fails to convince, its doctrine will not prevail."
In a democratic society, judicial law134
making is limited by the forces that normally limit the exercise of power.
It may be further controlled by the awareness of its inevitability: "A judge
consciously sensitive to a creative duty, and its limitations, is more apt to
135
be conscious of his obligation to fulfill the duty with restraint."
While recognizing this need for restraint, the judge may nevertheless—
through extension of precedent and broad interpretation of ambiguous statutory
language— take an active role in social reform by helping to mold public opinion.
We have seen how British and American courts have attempted to do this in the
area of race relations (with British judges somewhat more reluctant than American to exploit this role to its fullest).
It is by means of such activism that
the judge performs his most important task: "to keep the image of liberty alive
before the people.
20
Footnotes
1. Quoted, in Stevens, Judicial Legislation and the law Lords: Four Interpretations, 10 Ir. Jur. 1,3 (1975).
2. Day, Why Judges Must Make law, 26 Case W. Res. L. Rev. 563,
565-68 (1976).
3. R. Cross, Precedent in English Law 23 (2d ed. 1968).
4. D. Lloyd, The Idea of Law 227 (1964).
5. J. Frank, Law and the Modern Mind 5-7, 37 (1930, 1963 ed.).
6. B. Cardozo, The Nature of the Judicial Process 124-27, 129 (1921).
7. Quoted in Cross, supra, at 29-30.
8. D. Lloyd, Introduction to Jurisprudence 818 (4th ed. 1979).
9. Id. at 819.
10. Id. at 859-62.
11. Holmes, The Path of the law, 10 Harv. L. Rev. 457, 466 (1897).
12. Lloyd, Jurisprudence, supra, at 451-55, 459-61.
13. K. Llewellyn, Some Realism about Realism (1931), quoted in Lloyd, Jurisprudence,
supra, at 503-05.
14. Lloyd, Jurisprudence, supra, at 461-63.
15. Id. at 344-45, 348, 3 6 I .
16. R. Pound, Philosophy of law, quoted in Lloyd, Jurisprudence, supra, at 3 8 3 .
17. Lloyd, Jurisprudence, surra, at 357.
18. Devlin, Judges and lawmakers, 39 Mod. L. Rev. 1, 5 (1976).
19. Id. at
3.
20. Id. at 8.
21. R. Dworkin, Taking Rights Seriously 87 (1977).
22. Id. at 83-86.
23. Id. at 87.
24. Id. at 82, 86.
25. Gross, supra, at
227
20
26. Id. at 3. 19-21.
27. Lloyd, Jurisprudence, supra, at 825"26.
28. Gross, supra, at 5-6.
29. Lloyd, Idea of law, supra, at 244.
30. Cross, supra, at 143-44.
31. IcL at 15-16.
32. Id. at 16.
33. Id. at 25-26, 29%
Traynor, The Limits of .Tibial Creativity, 29 listings L.J. 1025, 1035-37
(1978).
35. Lloyd, Jurisprudence, supra, at 850-51.
36. J.Gray, ^gjfatn™ and Sources of the law 123-25 (1909, rev. ed. 1921).
37. Lloyd, Jurisprudence, supra, at 851-52.
38. Traynor, supra, at 1033-34.
39. Devlin, supra, at 13~l6.
40. W. Twining & D. Miers, How To Do Things WljJQules
93 -94
(1976).
1+1. Lloyd, Jurisprudence, supra, at 864-65.
42. Day, supra, at
58O-82.
43. Lloyd, Jurisprudence, supra, at 869, 875~76.
44. Day, supra, at 574-77, 580.
45. Meador, English A^ellat* Judges from an Vn^.car Perspective, 66 Geo. L^J.
m , 1356-58 (1978).
1+6. L. Jaffe, Fmglish and American Judges as lawmakers 69 (1969).
47. Lloyd, Jurisprudence, supra, at 8 5 3 .
48. Jaffe, supra, at 6 9 .
49. Lloyd, Jurisprudence, supra, at 8 5 5 .
50. Jaffe, supra, at 6 7 .
51. J. Griffith, The Politics of the Judiciary 25~29 (1977).
52. Id. at 29.
228
20
53• Shetreet, A Changing Society, A Changing Judiciary on Both Sides of the
Atlantic, 60 Judicature 332, 333"35 (1977).
54. J. Schmidhauser, The Bacground of Members of the Supreme Court, in R. Scigliano,
The Courts 142-43
(1962).
55. Grossman, Social Backgrounds and Judicial Decision-Making, 79 Har^ L. Rev.
1551. 1554-57, 156l-63^'f^X
56. Jaffe, supra, at 105-08.
57. Goodhart, quoted in Jaffe, supra, at 108,
58. Jaffe, supra, at 108-10.
59. H. Cecil, The English Judge 12, 16-17, 19, 21 (1970).
•60. Griffith, supra, at 17, 29-30.
61. Lloyd, Jurisprudence, supra, at 85562. Scigliano, supra, at 57, 6 5 .
63. Id. at 83.
64. Jaffe, supra, at 60-61, 6 3 .
65. Lloyd, Idea of law, supra, 229-30, 237.
66. Devlin, supra, at 8.
67. Id. at 7.
68. Id. at 8.
69. Cardozo, supra, at 104-05.
70. Id. at 108-09.
71. C. Radcliffe, The law and Its Compass 63-64 (i960).
72. Id. at 65.
73. Id. at 46 , 52-53.
74. Id. at 53.
75. K. Llewellyn, Using the Newer Jurisprudence, in Lloyd, Jurisprudence, supra,
at 508.
76. Radcliffe, supra, at 10.
77. Jaffe, supra, at 57~58.
78. Griffith, supra, at 187-92.
/C/C
79. Id. at 195-96, 198-99, 203-04, 213-1580. Stevens, supra, at 10, 13.
81. Id. at 218-24.
82. Id. at 238.
83. The Denning Method, 130 New L ^ . 126, 126 (1980).
84. Stevens, supra, at 238-39, 247, 250-51.
85. Devlin, supra, at 5-6, 9.
86. D. Horowitz, The Courts and Social Policy 2 (1977).
87. Id. at
3.
88. I. Macdonald, Race Relations— The New law 1-3, 1 3 6 (1977).
89. Griffith, supra, at 201.
90. [1972] A. C. 342.
91. Id. at 363.
92. Id. at 369.
93. [l973jl All E.R. 5 1 2 .
94. Id. at 522.
95. Id. at 518.
96. [1974] 2 All E.R. 7397. Id. at 86.
98. [1978] 3 All E.R. 419.
99. Id. at 422.
100. [1978J 3 All E.R. 1196.
101. Id. at 1203-04.
102. Id. at 1207.
103. Id. at 1212.
104. [l979j 3 All E.R. 673.
105. [1979] 1 All E.R. 814.
106. Id. at 816.
107. Id. at 817.
280
20
108. Id.
109. 42 U.S.G. § 2000a (1976).
110. 379 U.S. 241 (1964).
111. 379 U.S. 294 (1964).
112. They also alleged a violation of due process under the fifth amendment and
the imposition of involuntary servitude under the thirteenth.
113. Gibbons v. Ogden, 9 Wheat. 1 (1824).
114. Heart of Atlanta Motel v. United States, 3 ^ U.S. 241, 255 (1964).
115. Ms. at 257.
116. Id. at 262.
117. Katzenbach v. McClung, 379 U.S. 294, 304 (1964).
118. Id. at 305.
119. Id.
120. 256 F.Supp. 549 (N.D. Miss. 1966).
121. Id. at 552.
122. Id123. 256 F.Supp. 151 (W.D. Ia. 1966).
124. Id. at 153.
125. Note, United States v. Northwest Louisiana Restaurant Club— The Spurious
-5)
Club and Public Accommodations laws, 6 2 Northwest. U.L. Rev. 244,^^(1967).
126. 377 F.2d 433 (4th Gir. 196?), modified and aff'd 390 U.S. 400 (1968).
127. Id. at 436.
128. 395 U.S. 298 (1969).
129. Id. at 306.
130. Id. at 307.
131. Lile, Judge-Made law, 15 Va. L. Rev. 525, 534-35 (1929).
132. Jaffe, supra, at 57-58.
133. Id. at 101, 103.
134. Id. at 104.
135- Day, supra, at 593136. Jaffe, supra, at 5 8 .
232