Getting Real about "Legal Realism": Sotomayor ain't no "Realist"

There are posts -- the Wall Street Journal and Leiter's blog, for instance -- suggesting that the usual law professor's self-hatred might be clouding the question of how one evaluates SCOTUS opinions. In particular, the notion that Sotomayor is a "legal Realist" because she believes that judges' backgrounds affect their decisions so trivializes actual legal Realism that it is hard for a non-self-hating legal academic like myself to stomach.

Legal Realism is not the jejune observation that judges' psychology matters. Realism is (or was) a specific jurisprudential school maintaining that (1) as a positive matter,legal commands are, to varying degrees, indeterminate and that (2) as a normative matter, the gaps ought to be filled by empirically well-informed and normatively candid and well-reasoned policy-making. It is a piece of goofy anti-intellectualism that even I, a card-carrying anti-intellectual, will not swallow that the insights of the Cohens, Llewellyn, Pound, et al can meaningfully be reduced to the banal bromide that one's ethnicity, character, sympathies, etc, will affect one's decisions. If Judge Sotomayor's endorsement of this obviously true proposition makes her a Realist, then Chief Justice William Howard Taft is equally a "Realist": As Robert Post's superb analysis of Taft's Prohibition Era decisions demonstrates, Taft routinely invoked the "traditional Anglo-Saxon respect for the administration of the law" and denounced the decisions of that "Jew Cardozo" for undermining this respect. (He did not like Brandeis much, either, and for some of the same anti-Semitic reasons).

Believing that people's background affects their decisions isn't Realism: That's is just realism -- and realism so obvious that anyone who questioned the position would not be guilty of Idealism but plain idiocy.

By contrast, a bona fide Legal Realist judge (1) acknowledges that the precedents are ambiguous and (2) makes a valiant effort to fill in the socio-political assumptions that underlie the statute, regulations, or judicial precedents as a way of resolving the case. As an example of Realist interpretation, consider Justice Cardozo's decision in Steward Machine v. Davis, in which he argued that the Social Security Act's provision for unemployment insurance was a device to overcome states' fear of being generous with UI benefits and thereby becoming welfare magnets. Cardozo concluded that the federal statute's taxing states that did not provide a federally approved UI scheme did not, therefore, "coerce" states but rather liberated them from a paralyzing inability to address the Great Depression. Note the signature style of Realism: (1) Candid recognition that the Spending Clause precedents (aka Butler) were a mess; (2) Candid recognition of the policy basis for the federal statute (i.e., to stop "unfair competition" among the states -- a practice that conservatives rather endorsed); and (3) a frankly normative prescription that "federalism" is not advanced if states are paralyzed from redistributing wealth by interstate competition for capital -- a position that, of course, some (Richard Epstein, for instance) would dispute.

Find me a single opinion by Justice Sotomayor that is so candid about the judge's policy-making role created by gaps in precedents or statutes. Find me one opinion in which she is willing to make a controversial policy choice based on a federal statute, acknowledging, as did those arch-Realists, Max Radin and Karl Llewellyn, that the choices really were not in the text. There are lower-court judges who do this Realist thing -- say, Richard Posner or Stephen Reinhardt. But Judge Sotomayor is simply not one of their number. The truth is that Sotomayor is a good, solid grinder. As several commentators like Turley and Adam Liptak have noted, her decisions tend to be connect-the-dots affairs that cleave to whatever caselaw exists -- and, when the caselaw dries up, then she clams up (as in the Ricci decision). She has hitherto exhibited an indifference to social science or to normative philosophizing that any good Realist would regard as excessively cautious or even intellectually dishonest.

Nothing wrong with that cautious and workmanlike approach to judging. (In particular, you'd think that conservatives would be pleased with such a modest and incremental approach). But to call this attitude "Realist" is a bit much. Realism is a sophisticated legal theory, not op-ed pop psychology. We legal academics ought to give ourselves and our predecessors a little more credit.