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.”