One (or More) of These Things is Not Like the Others

In response to a post by Dan Solove about the Kagan nomination, Larry Solum has an interesting and impassioned response, one that valuably reminds us that there are dissenters from the conventional wisdom.  Larry writes:

Law is a practice, an artefact of human culture.  Judges can choose whether to decide cases on the basis of their own first-order normative beliefs about how cases should come out--or they can choose to adhere strictly to the directives contained in authoritative legal texts.  Legal cultures can encourage and reward an instrumentalist approach to law, or they reinforce formalist practices and values.  Judges can choose to exploit and expand legal underdeterminacy to create space for the expression of their own preferences through the law--or they can attempt to cabin the zones of underdeterminacy by acting on the basis of the widely shared and deeply held norms of the political communities that produce the laws.

Not all of us believe that "no judge is neutral."  Not all of us believe that judges should make the law rather than apply or discover it.  Not all of us are legal realists now.

I think Larry offers a valuable rejoinder that goes wrong in two or three places.  Most of what he writes can be justified, whether I agree with it or not.  But I'm not sure that his statements in sentence two of the first paragraph -- judges "can choose to adhere strictly to the directives contained in authoritative legal texts" -- and sentence one in the second paragraph -- "not all of us believe that 'no judge is neutral'" -- are as easy to justify.  On the first point, I think Larry would have been well-advised to use more careful language.  Judges can choose to adhere as strictly as possible to the directives contained in authoritative legal texts; they can, as he says, attempt to cabin any departures from this norm.  But somewhere around the difficult words "strictly," "directives," "contained," and "authoritative," as well as the earlier words "artefact of human culture," I think becomes hard to argue that judges can comply, at least in a rigid sense, with this rule.  And that suggests, to me at least, that it is hard to argue that not all of us believe no judge is neutral.  I would actually say that all of usdo believe that no judge is capable of perfect neutrality.  Where we go from this conclusion is a different story, with much room for disagreement.  But it does suggest to me that, at least to some degree, we are all, in fact, legal realists now, and likely always have been.  

I am giving short shrift here to more complicated debates about what exactly is entailed by legal realism or by alternative schools of thought.  Larry might argue that legal realists believe in more than just the impossibility of perfect neutrality, and that legal formalists do not actually believe in the possibility of perfect neutrality.  But his own post is not so thinly sliced.  Understandably so -- not every blog post has to be the length of a law review article.  But as written, I think Larry's post goes too far.