“Judges should always behave judicially by adjudicating, never politically by legislating. I leave policy to policymakers. They’re preeminent, but they’re not omnipotent. In other words, lawmakers decide if laws pass, but judges decide if laws pass muster. There’s a fateful difference between activist judges who concoct rights and active judges who dutifully protect the rights our Framers actually enshrined.”

— Don Willett

Online and on the Bench, the ‘Tweeter Laureate of Texas’ Is All About Judicial Engagement (September 17, 2015)

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Don Willett 3

American judge 1966

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“I do not believe it is the function of the judiciary to step in and change the law because the times have changed. I do well understand the difference between legislating and judging. As a judge, it is not my function to develop public policy.”

Sandra Day O'Connor (1930) Former Associate Justice of the Supreme Court of the United States

Washington Post (September 10, 1981).

“Of course, the power and authority of courts — whether to improperly take policymaking power for themselves or to engage in legitimate decision making — is dependent upon the weight of their judgment. That is, it depends on their credibility with the public and the other branches of government. Judicial decisions are obeyed, in large part, because the judgment of the federal Judiciary is respected. But it is perhaps underappreciated that when courts apply an activist philosophy that stretches the law to suit policy preferences, they actually reduce the credibility and authority of the Judiciary. In so doing, they undermine the rule of law that strengthens our democracy. In contrast, a judge who humbly understands the role of the courts in our tripartite system of government decides cases based on neutral principles. He generally defers to the judgment of the political branches, and respects precedent – the collective wisdom of those who have gone before. In so doing, that judge strengthens respect for the Judiciary, upholds the rule of law, and permits the people — through their elected representatives — to make choices about the issues of the day.”

Alberto Gonzales (1955) 80th United States Attorney General

Speech to American Enterprise Institute (January 17, 2007)

“It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision … You have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”

John Jay (1745–1829) American politician and a founding father of the United States

Georgia vs. Brailsford http://www.friesian.com/jury.htm (1794)
1790s

“The Judge does not make the law. It is people that make the law. Therefore if a law is unjust, and if the Judge judges according to the law, that is justice, even if it is not just.”

Alan Paton book Cry, the Beloved Country

Source: Cry, the Beloved Country

“When we went to school we were told that we were governed by laws, not men. As a result of that, many people think there is no need to pay any attention to judicial candidates because judges merely apply the law by some mathematical formula and a good judge and a bad judge all apply the same kind of law. The fact is that the most important part of a judge's work is the exercise of judgment and that the law in a court is never better than the common sense judgment of the judge that is presiding.”

Robert H. Jackson (1892–1954) American judge

Reported in Eugene Gerhart, America's Advocate: Robert H. Jackson (1958), p. 289

“We think in America that it is necessary to introduce the people into every department of government as far as they are capable of exercising it; and that this is the only way to ensure a long-continued and honest administration of it's powers. 1. They are not qualified to exercise themselves the EXECUTIVE department: but they are qualified to name the person who shall exercise it. With us therefore they chuse this officer every 4. years. 2. They are not qualified to LEGISLATE. With us therefore they only chuse the legislators. 3. They are not qualified to JUDGE questions of law; but they are very capable of judging questions of fact. In the form of JURIES therefore they determine all matters of fact, leaving to the permanent judges to decide the law resulting from those facts. Butwe all know that permanent judges acquire an esprit de corps; that, being known, they are liable to be tempted by bribery; that they are misled by favor, by relationship, by a spirit of party, by a devotion to the executive or legislative; that it is better to leave a cause to the decision of cross and pile than to that of a judge biased to one side; and that the opinion of twelve honest jurymen gives still a better hope of right than cross and pile does. It is left therefore, to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges; and by the exercise of this power they have been the firmest bulwarks of English liberty.”

Thomas Jefferson (1743–1826) 3rd President of the United States of America

Letter to the Abbé Arnoux (19 July 1787) https://founders.archives.gov/documents/Jefferson/01-15-02-0275
1780s

“[There are] judges who stretch the law…to suit reactionary attitudes.”

Michael Foot (1913–2010) British politician

On ITV's People and Politics (9 May 1974)
1970s

“Judges who find Constitutional rights the Framers never intended take important issues out of the public space of democratic debate and suspend them in a sort of legal formaldehyde.”

Antonin Scalia (1936–2016) former Associate Justice of the Supreme Court of the United States

Speech at University of Vermont, 8 October 2004 http://www.uvm.edu/~uvmpr/?Page=article.php&id=1389
2000s

“Who judges the judge who judges wrong?”

Gail Carson Levine Fairest

Source: Fairest

“When a judge decides a constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it wrong.”

Theodore Roosevelt (1858–1919) American politician, 26th president of the United States

1910s, California's Policies Proclaimed (Feb. 21, 1911)
Context: When a judge decides a constitutional question, when he decides what the people as a whole can or cannot do, the people should have the right to recall that decision if they think it wrong. We should hold the judiciary in all respect; but it is both absurd and degrading to make a fetish of a judge or of anyone else.

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