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Friday, May 29, 2009

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.

Posted by Rick Hills on May 29, 2009 at 01:02 PM in Current Affairs | Permalink


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I'm studying her opinions and hope to find something interesting. But I would take issue with a couple of points.

First, I see realism as purely descriptive and not requiring anything more than the statement that psychology matters.

Second, if you are looking for conscious realism, the words in opinions are not the place to look. A realist might well believe that her judgments should be couched in the materials of the law as closely as possible, even while understanding that this did not drive her decision.

Posted by: frankcross | May 31, 2009 10:45:02 PM

Brian, I'm curious -- are there any particular opinions you think are especially illustrative of this point? I don't mean this as a pre-gotcha question; I'm genuinely curious. I wouldn't be that surprised to see traces of Realism in judicial opinions, but outside of a very few judges I guess I'd be surprised if they were more than Realism Lite.

Posted by: Paul Horwitz | May 30, 2009 2:17:46 PM

No, I just skimmed your post. But I guess you didn't really read my post either, since it was about her articles, not her opinions. My impression of her opinions is consistent with what you describe, as I told the WSJ reporter. But, of course, it's not the opinions that are currently garnering the attention, but one line from the La Raza piece. The articles aren't very good, but they have more explicitly Realist content than you describe, and that content had surprised me.

Posted by: Brian | May 30, 2009 11:40:21 AM

Brian, I'm curious, did you actually read my post? It was about the Judge's opinions, not her articles.

And, yes, I read 'em: Pretty bland stuff. The Suffolk piece offers some dull Commencement Speech verities – lawyers should be ethical, etc. The La Raza piece contains that quote about judges’ opinions being influenced by their backgrounds as well as the law.

You think that this sort of statement qualifies as “Legal Realism” rather than common sense? You predict from such a banality that Sotomayor might be a Crit? I see Dog Bites Man, not Crit Bites Court.

I wonder if the Left has not been hornswoggled by a deviously clever Republican plot: The Republicans pretend to be offended by Judge Sotomayor’s “radicalism” in order to lull the Left into accepting with equanimity a judge who is really quite conservative, insofar as her blandly precedent-based approach will lead her to leave most of the Rehnquist Court’s legacy intact. The Left will think that they got Brennan, when they really got – well, Potter Stewart or Vinson or some equally dull, lawyerly jurist.

Nah: The Republicans are too dumb or indifferent to see how lucky they are to get a cautious, precedent-bound judge like Sotomayor. But I would have thought that a smart guy like yourself would squelch the egregious myth that Judge Sotomayor will be anything but what she has always been – a solid, cautious, lawyerly, but fairly unimaginative judge. The articles you cite offer not one scintilla of evidence to the contrary.

As a conservative kind of guy, I’m happy with this outcome. But I cannot bear to see the Left play along with the Republicans’ faux shock.

Posted by: Rick Hills | May 30, 2009 11:07:15 AM

Rick, I'm curious, did you actually read either of the Sotomayor articles in question?

Posted by: Brian | May 30, 2009 12:45:22 AM

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