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A Better Partnership
May 14, 2009

Chief Justice Kelly's Jurisprudence

Chief Justice Kelly's summary of her judicial philosophy was "conservative" with regard to precedent in that she indicated that the existing interpretation of the law should generally be upheld.' ' Whether the Court will adopt this approach' when handling precedent established during the last 10 years remains to be seen.'

OCJ Blog:' What is the single most important judicial philosophy to which you ascribe'

CJ Kelly:' I sat down and worked a' little on this, although' obviously from one day to the next I'm sure I'd pick' something different on what I want to talk about.' But' let me say this regarding basic judicial philosophy, in' interpreting precedent I think that there must be a' presumption that existing precedent -- that the existing interpretation of the law is valid and it should be' upheld, but, of course, the presumption is rebuttable.' In interpreting Constitutional or statutory law the law should be construed as written.' If there are two or' more reasonable interpretations of it, it has to be' construed according to the intent of the drafters.

And I agree with Justice Stephen Breyer who wrote in his book, Active Liberty:

A judge when interpreting' provisions must avoid being willful in the sense of' enforcing individual views.' At the same time a judge' must avoid being wooden and uncritically resting on' formulae and assuming the familiar to be necessary and' not realizing that any problem can be solved if only one principle is involved.' But then, unfortunately, all' controversies of importance involve if not a conflict, at least an interplay of principles.

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