A Meal with Judge O’Scannlain

The Honorable Diarmuid O’Scannlain from the Court of Appeals for the Ninth Circuit joined students, faculty, and guests September 5th to present his lecture, “The Role of the Federal Judge in the Constitutional Structure: An Originalist Perspective” at the inaugural Hugh and Hazel Darling Foundation Judicial Lecture on Constitutional Originalism.  Judge O’Scannlain spoke on the Judge’s role and the place for policy decisions as defined by the Constitution.

He jumped straight in with the ever popular topic of policy considerations, stating that policy has a place – just not in the judiciary. He explained that the constitution puts it very specifically in the hands of the elected and accountable legislative branch. “But, but,” one might wonder, “what if the law you are left to apply produces an outcome that is absurd?” Well, funnily enough, “absurdities” are just the kind of results that Judge O’Scannlain thinks judges have a duty to uphold. Congress has a right to legislate the absurd he maintained, and if they should so choose, then the judiciary is duty bound to respect the will of the people as demonstrated by the democratic process.

The goal of United States democracy is to create a stable system of self-government. The hot button issues are where the people are most empowered by the Constitution to choose for themselves. They are hot button issues because there is no one discernible will of the people; it is both reasonable and expected that the different States will react in different ways. We are to embrace this diversity of values! Judge O’Scannlain explained, “Policy decisions override and thwart the voiced will of the people; such is not a judge’s job. The role of the judge is very simply to apply the law, not usurp state legislative functions. If there truly is a fundamental right not listed within the Constitution then the amendment process must be utilized.” Otherwise, he concluded, the meddlesome policy making of judges (which only promotes a dependence on more such meddlesome activities) corrupts the rule of law and corrodes the democratic process to which we all owe our allegiance.

In a less formal setting, prior to the lecture, Judge O’Scannlain joined students for a bite to eat and a few friendly questions. Topics ranged from the quirky (his thoughts about women’s pants suits—no preference) to the practical (including his relationship with law clerks). For the Moot Courters among us, he advised that while he would be delighted to be involved here at USD and he thinks it is a fantastic endeavor for law students; in his experience, however, oral arguments affect the decision in only a very small number of cases.  The decision has usually already been decided based on the law as it has been set out in the briefs. Hooking the controlling case law to the crucial facts found by the trial judge in your case brief is where to spend your time. So it comes as no surprise that he considers the best part of his job to be writing opinions. The power of the pen far exceeds the lifetime of any one person and, as our exorbitantly priced casebooks can attest, “Those words survive.”


Correction on November 11, 2012: The article as originally published incorrectly labeled Judge O’Scannlain as “Justice.”

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