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Thursday, May 28, 2009

We are all Realists - but don't tell anyone

One of the things that’s always struck me about judges is how reluctant nearly all of them are to acknowledge the extent to which there is a lawmaking role to the job (at least at the appellate level), and more generally how underdetermined an awful lot of legal questions are.  Given that we’re all Realists, as the cliché has it, and have been for quite some time, one might expect that the ideas would be so ingrained as to be unremarkable.  That’s not the case, of course.  Just today the Wall Street Journal reports that Judge Sotomayor’s acceptance of Realism “is riling conservatives opposed to her nomination.”  And there is also the glee with which those lining up against Judge Sotomayor are pointing to the video of her acknowledging that court of appeals judges make law.  All of which, I suppose, demonstrates why a judge might think it appropriate not to acknowledge the lawmaking aspects of her job.

So let me now do that thing where I say something like, “if you think that’s bad, then check this out.  Imagine the reaction if this judge ever got nominated for the Supreme Court.”  And then, of course, I’ll hit you with the surprise answer at the end.

 Here, then, are some quotes from an actual judicial opinion:

“A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason.  For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law.”

“Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so.”

“The complete separation of the judiciary from the enterprise of ‘representative government’ might have some truth in those countries where judges neither make nor set aside the laws enacted by the legislature.  It is not a true picture of the American system.”

“In fact, however, the judges of inferior courts often ‘make law,’ since the precedent of the highest court does not cover every situation, and not every case is reviewed.”

The quotes are from Justice Scalia’s opinion for the Court in Republican Party of Minnesota v. White.  I realize that there are grounds for distinguishing the two sets of statements if one is so inclined – Justice Scalia’s opinion was talking about state courts, Judge Sotomayor also said that the courts of appeals “make policy,” and so on.  But at a descriptive level they seem to be saying more or less the same thing, and it strikes me as something that ought not be controversial, and probably isn’t among this crowd.

There is, of course, plenty of room for legitimate debate over the normative question of how courts ought to go about the task of exercising this authority to make law.  One of the more frustrating aspects of much public discussion relating to the judiciary is the frequent conflation of these two questions.  I’d like to live in a world in which appellate judges were not conditioned to believe that “making law” is something they must never acknowledge doing.  What follows is a gross oversimplification, but it seems to me that if making law is something that judges must deny doing, then it becomes something that they will not do openly (even as they will necessarily continue to do it).  That, in turn, tends to make it more difficult for the various forces that shape and constrain judicial behavior (see, e.g., Llewellyn's "major steadying factors") to operate effectively, and perhaps easier for the lawmaking power to be exercised irresponsibly.  And that strikes me as more worrisome than an awful lot of what is often lumped under the heading “judicial activism.”

Posted by Chad Oldfather on May 28, 2009 at 05:49 PM | Permalink


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Chad, You think more about this stuff than I do but that's never stopped me before.

I am not sure that I agree we are all legal realists, at least not in its purer forms. But I do agree that there are circumstances in which judges "make law" in the sense that there are, at times, no obviously correct answer inferable from the text, history, etc. of a particular law. I am tempted to say, in fact, that I would be happy enough to live in a world where judges were not inclined to deny that they make law if, in that same world, no one was inclined to say that judicial activism, however flawed as a term and misused in public debate, is meaningless.

But since we are not going to have that world, I can, to play devil's advocate, think of at least one reason that judges ought to be conditioned to deny that they make law. The debate is not simply about what to do when the legal outcome is indeterminate, but how we go about deciding when it is indeterminate, i.e., how are we to identify the range of potentially correct answers. My own view is that judges ought to be hard wired to look to some source of authority other than their own notions of policy and ought to take great care in adapting approaches (e.g., the construction of hypothetical "objective" observers or paragraph length "balancing" tests)that leave judicial decisionmaking largely unfettered. My ideal won't be achieved everytime - sometimes because there will be no such source available and often because it is just hard to do - but if judges begin with a mindset that something other than their own sense of right and wrong ought to be the measure of their decisionmaking, they just may achieve it more often.

Granted, denying that one ever makes law is a blunt way of imposing discipline and my tongue is at least listing toward cheek, but sometimes human temptation (here the urge to do whatever it is I want to do) can only be cabined with blunt taboos.

Posted by: Rick Esenberg | May 29, 2009 9:47:26 AM

Only reactionaries make unqualified statements about judges having no predisposition. Judges making a ruling in an area devoid of (or at least unsettled) law or precedent is expected, even demanded by duty. The issue for most conservatives like myself is the judges seek to change said precedent or settled law because of their predisposition in a matter of rising awareness of controversy.

Change shouldn't come from the bench. Clarity, judgment, extrapolation if necessary, but not change. It is this predisposition against change that characterizes true conservatives in all political circles. Only change that has been rigorously examined and passed through the bowels of complex bureaucracies deliberately balanced against one another should stand.

We might dress this up in all manner of academic formalizations, but the intent is to forestall change except for exceptionally good and widely-supported changes. I'm not saying this will always result in publicly enacted morality conforming to my preferential one (since I'm suggesting that many great and noble changes of the 20th century should not have occurred before a great deal more public support and systematic alterations in the nether regions of government) but my personal morality is not what's in question, rather governance of a diverse populace more often in conflict over moral issues than technical matters like Tort reform.

Posted by: David | May 28, 2009 6:25:32 PM

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