Bench Memos

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A More Serious Random Thought


Now that I actually have time to begin reading the 80-plus pages of Lewis v. Harris—a task that takes some effort since it means at least a half hour of insulting my intelligence—I am pulled up short by the first half of the very first sentence in Justice Albin’s opinion for the New Jersey court: “The statutory and decisional laws of this State protect . . .” (my emphasis).

Think about that semi-barbarous phrase, “decisional laws.”  In the last twenty years of U.S. Supreme Court decisions, I can find quite a few uses of the phrase “decisional law,” in the singular, but never in the plural.  It’s ugly English in either form.  But in context, the singular always means something like what John Marshall meant in Marbury v. Madison when he said, “It is emphatically the province and duty of the judicial department to say what the law is”—i.e., what it means when applied to cases.  Whether in common law or in constitutional or statutory interpretation, the precedents of courts may be said to form a body of “decisional law” explicating the meaning of principles or provisions that the court is not itself responsible for having made.  (You read that right: even in the common law the traditional understanding was not that the courts made the law, only that they made the decisions giving it effect.)  Hence “decisional law” could be said to be at one remove from lawmaking itself.  It constitutes the judicial glosses on the law’s meaning, and that’s it.

But Justice Albin uses the phrase in the plural, as “decisional laws,” and explicitly pairs that form of “laws” with those made by a legislature: “statutory and decisional laws.”  The implication is inescapable: just as the legislature makes “statutory laws,” the judiciary makes “decisional laws.”  Between the two there is no real difference other than the locus of the lawmaking.  But lawmaking it assuredly is, in the courts as well as in the legislative assembly.  Each is equally authorized, in Justice Albin’s view, to craft brand new social policies, and each may presumably do so without consulting the work of the other.  With this crucial difference, of course: in any conflict between the “laws” made by the legislature and the “laws” made by the judiciary, the judges win hands down.

Oh how much trouble resides in that little “s”!

Tags: Franck


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