Behind the charge of judicial activism which we hear so often of late, lies the myth of certainty — the myth that if the judge looks long enough and hard enough the law will always provide a clear, indisputable answer upon which all will agree.
Another major decision is in the case McCulloch v. Footnote 2 Some rules are difficult to state in precise form, and are gleaned only through studying what has been decided or done in similar cases in the past; we refer to this as the law of precedent.
And the pronouncements of some judges, before and since retirement, have gone beyond endearing eccentricity to give some cause for alarm. It will likely produce the same result for Judge Kavanaugh.
In the United States, both Republicans and Democrats have been publicly committed to that objective, at different times and with respect to different decisions, for nearly years—and both remain so today. Why then do we ask judges to resolve difficult legal issues our society throws up?
Judges are also human beings in their relations with their peers.