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Wednesday, January 15, 2025

Judges, Judging and Judgment: An Origin Story

The following is the first of several posts from Chad Oldfather (Marquette) on his new book, Judges, Judging and Judgment (Cambridge University Press)

Greetings, all. I’m delighted to be reappearing at Prawfs after more than a decade away. Last time I was here I still imagined myself as young, perhaps even up-and-coming. That’s a harder story to sell these days, but sometimes the person in the mirror still buys it. Yet the years have unquestionably passed, and since it’s been so long a brief (re)introduction seems in order.

I’m currently in the second semester of my twentieth year on the faculty at Marquette. My primarily scholarly focus over that time has been what I’ve usually referred to as “the judicial process,” by which I mean pretty much anything that has to do with how judges decide, including the doctrines, procedures, and institutional arrangements that govern the judiciary, as well as insights into judgment and decision-making more generally. Over that time I’ve been teaching a class called “Judging and the Judicial Process,” which I blogged about here back in 2008. Its goal is to think about judging from start to finish, and from as many perspectives as we can fit, from both within and outside law. I posted an early version of the course materials on SSRN around the same time I blogged about the class, and along the way maintained vague notions of using them as the basis for some sort of book.

Those notions didn’t become a plan until 2022. Curricular need, in the form of a sabbatical-driven shortage in offerings of the “Perspectives” courses our students are required to take, meant that I’d be teaching Judicial Process twice in the same calendar year. It also meant I wouldn’t need to devote a portion of my summer to developing materials for the other course (state constitutional law) that I had anticipated I’d be teaching. Meanwhile some thoughts had matured, crystallized, and whatever else it is that thoughts do. I drafted a proposal, received helpful feedback from several people, and, as I am wont to do, tinkered.

The tinkering turned into a final push on Friday, June 24, when the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health. Dobbs was, obviously, a significant decision in ways that were both immediately apparent and that remain to be seen. It also provided me with a vehicle to underscore the timeliness and significance of the book I was proposing to write.

Here's why: Toward the end of their joint dissent in Dobbs, Justices Breyer, Sotomayor, and Kagan pay tribute to the joint opinion of Justices Kennedy, O’Connor, and Souter in Planned Parenthood v. Casey. “[T]hey were judges of wisdom,” the joint dissenters claim. “They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.”

Whether they realized it or not, the joint dissenters’ observation echoed a characterization of the Casey joint opinion offered nearly three decades earlier, in its immediate wake. In the opening pages of 1993’s The Lost Lawyer: Failing Ideals of the Legal Profession, Anthony Kronman characterized the joint opinion as “judicious” and as involving “wise balancing of principle and precedent.” “[I]t was judgment, not expertise, that counted.”

Both the Dobbs dissent and The Lost Lawyer invoke a version of the punchline toward which my book proposed to work. The features of the legal system that have historically served to channel judicial behavior no longer function as well as they once did. Growing polarization in society and within the profession has increased the risk of motivated reasoning. Purported methodological solutions lack the constraining force their proponents claim for them. How judges judge matters, to be sure, as do the processes and features of the institutions in which they do so. But who judges, and whether they are wise and the sort of person who has good judgment, matters at least as much, and perhaps more. (That we can identify good judgment is its own tough sell these days, which is part of the problem.)

I sent the proposal to five presses the following Monday. Things moved quickly. The first response came an hour-and-a-half later: “Not a good match for our list.” Fine, not the first time Yale has passed on something I’ve sent its way, and undoubtedly not the last. The second arrived in very on-brand fashion early that evening, as I stood in line at a Taco Bell in the vicinity of O’Hare airport. (I had just picked up one of my daughters.) Cambridge was interested. That interest turned into a contract. I thought I had the research mostly done and that I could have a manuscript completed in about a year. As so often happens, the writing process revealed that I did not have the research mostly done. But somehow I managed, even while chairing our appointments committee during the home stretch, to get the manuscript in almost on time.

It's not a perfect book. Its closing sentence is: “But I could, of course, be wrong.”  I’m already aware of one additional line of research I wish I had pursued. But still, I think it’s a pretty good book (as a native Minnesotan I have to fight the urge to call it “not too bad a book”), and I hope an interesting and perhaps even provocative book, and I’m proud to have my name on it. It’s called Judges, Judging, and Judgment: Character, Wisdom, and Humility in a Polarized World. It’s out tomorrow. (You can order it here, and if you use the code JJJ2024 you’ll get 20 percent off.)

I look forward to telling you more about it.

Posted by Howard Wasserman on January 15, 2025 at 04:07 PM in Books | Permalink

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