separation of powers in thought and practice? - Boston College

462 Boston College Law Review [Vol. 54:433
We are also familiar with concerns about the contamination of the
adjudicative function with executive functions, ranging from the Soviet
practice of “telephone justice”98 to the famous dissent of Lord Atkin in
the 1942 wartime British case of Liversidge v. Anderson: “I view with apprehension
the attitude of judges who on a mere question of construction
when face to face with claims involving the liberty of the subject
show themselves more executive minded than the executive.”99 This is
not to say that it is inappropriate for judges to apprehend and even
sympathize with the needs and exigencies of executive government
particularly in wartime or a state of emergency, but their job is to balance
executive claims and concerns against those of liberty, for example,
according to law, not simply to swat away irritating challenges to executive
authority.100 The role of a court is to settle disputes according to
law and to conduct highly formalized hearings on any question about
whether action should be taken against an individual, an agency, or a
firm for a failure to comply with applicable law.
What about judicial law-making? We all know that judges make law
as well as discover it; through their collective power to establish a line of
precedent, they in effect create and promulgate new norms for the
community as well as putting authoritative new glosses, through their
powers of interpretation, on norms created by other institutions. There
is much to be said about this familiar topic and most of it we cannot
pursue here. Suffice it to say that our familiarity with judicial lawmaking,
especially in a common law system, should not blind us to the
difficulties it poses from a separation-of-powers point of view. It certainly
poses difficulties from the point of view of the particular parties before
the law-making court, who find in effect that their rights are being
determined by new law imposed retroactively upon them. And we see
in cases like the U.S. Supreme Court’s 1989 decision in Teague v. Lane
and its progeny, the heroic and convoluted efforts that have to be made
98 See e.g., Jeffrey Kahn, The Search for the Rule of Law in Russia, 37 Geo. J. Int’l L. 353, 385
(2006) (“In his mind’s eye the judge can always see the shiny black visage of truth—the telephone
in his chambers. This oracle will never fail you, as long as you do what it says.” (quoting
Alexander Solzhenitsyn, 3 The Gulag Archipelago 521 (Thomas P. Whitney & Harry
Willetts trans., Harper & Row 1974)); Inga Markovits, Last Days, 80 Calif. L. Rev. 55, 66,
81 (1992) (defining telephone justice as an attempt by one with political power to sway a
decision).
99 Liversidge v Anderson, [1942] A.C. 206 at 244 (Eng.).
100 See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952) (“[W]e
cannot with faithfulness to our constitutional system hold that the Commander in Chief of
the Armed Forces has the ultimate power as such to take possession of private property in
order to keep labor disputes from stopping [steel] production [during war time]. This is a
job for the Nation’s lawmakers, not for its military authorities.”).