Politicians in Robes: Why Judicial Activism Is a Threat

At his confirmation hearing, now Supreme Court Justice Neil Gorsuch promised to be a fair and nonpartisan jurist, saying, “These days, we sometimes hear judges cynically described as politicians in robes, but I just don’t think that’s what a life in the law is about.” Most Americans expect that a judge will not be an activist and read their own views into the law, but they will apply the law according to plain meaning and documented legislative history.

But even judges need some help keeping up with the volume and complexity of cases. Largely unknown to the public, the American Law Institute (ALI), a private group of lawyers and legal scholars, provides judges and lawyers with “Restatements,” written documents that “aim at clear formulations of common law… as it presently stands or might appropriately be stated by a court.” For nearly a century, these documents have been looked upon as authoritative summaries and continue to be regularly cited by judges- almost like a trusted court-side companion for staying within the boundaries of the common law.

In recent years, however, the ALI has begun drafting Restatements that are neither clear nor reflective of the actual law. To the contrary, these Restatements have been more aspirational – not neutrally describing the current state of the law, but instead directing where the authors think it ought to go. We have seen this trend in a number of legal areas where the ALI restatement process is underway, and where the authors – called “Reporters” – have actually created new law, without the public accountability of duly elected government officials.

The problem with the ALI’s creeping judicial activism is that it’s not open to public scrutiny and control is largely in the hands of the Reporters chosen to “restate” an area of the law. In 2010, the ALI tasked two law professors with developing “the Principles of the Law of Liability Insurance.” Later converted into a Restatement of the Law of Liability Insurance, these two ideologically-driven academics have chosen to ignore what the legislatures and the majority of courts have determined and substitute ideas they think are better.

For example, the bedrock principle of insurance contract interpretation is that the terms will be enforced as written. Called the “plain meaning rule” – when courts give words their ordinary meaning, this principle helps guarantee the reliability and certainty we expect from the law when it is applied to the obligations in an insurance policy. It is recognition that legal disputes must be resolved with the highest degree of objectivity and certainty. But the Reporters decided it was time to discard this longstanding insurance law rule when “extrinsic evidence shows that a reasonable person in the policyholder’s position would give the term a different meaning.”

The Reporters also jettisoned the longstanding common law American rule that each party to a lawsuit pays its own fees, unless the legislature has enacted a law providing otherwise. The Reporters have overridden this common law rule with their own rule imposing the litigation fees of both sides on the insurer if it does not prevail in litigation.

The Supreme Court has recognized departures from the American rule only when the legislature has provided “specific and explicit provisions.” Without giving deference to legislative judgments, these two law professors have unilaterally decided to make the change anyway. What does it say about the reliability, stability, and certainty of law across the country – not just within the liability insurance space – if two legal scholars, behind closed doors and without an open drafting process, are able to substitute their theories and opinions for the court decisions and statutory provisions that have formed the basis of the ALI’s so-called “restatements” for a century?

While this might be a victory for these Reporters’ new brand of judicial activism, it would come at everyone else’s expense, including the reputation of the ALI as the trusted record keeper of the common law.