Law & Society Blog

In a post titled Swing Votes, Making Things Come Out Right, and the Virtue of Justice, Lawrence Solum on the Legal Theory Blog has posted a very interesting analysis of what he perceives to be two factors producing a crisis in the current Supreme Court:

First, we have a closely divided court, and the division is especially prominent on a variety of key constitutional issues, including unenumerated rights and federalism. Second, the behavior of the Justices seems consistent with the theory that the Justices vote to produce the “fair” or “best” outcome, feeling only loosely constrained by the rules laid down–e.g. their own precedents, the constitutional text, statutory language, and so forth. I would like to suggest (as a working hypothesis) and not as a firm conclusion) that the interaction of these two phenomena is much more problematic than either would be by itself.

After analysing this situation, Solum arrives at the assessment that “a results-oriented, closely-divided court poses grave dangers for the rule of law–dangers that are greater than those posed by a either results orientation or close division alone.”

Given this assessment, Solum finds formalism an appealing remedy, and his solution perhaps is not novel, but is nevertheless refreshing to read:

What I am suggesting is as simple as it is radical. When we select judges (especially Supreme Court justices), we should look first and foremost for good judicial character, and especially for the virtue of justice–the disposition to decide cases on the basis of the rules laid down and the norms of the community and not on the basis of the judges’ own perceptions of what the law should be. We should selected Justices who are willing to compromise in order to produce stable majorities on particular issues. We should selected Justices who will respect the Supreme Court’s decisions as precedent, even though they may have dissented from the decision. We should select Justices who care more about the rule of law and less about ruling through law.

Solum himself realizes that a call for the virtue of justice, judicial integrity and an apolitical selection process may come across as naive. But what I find fascinating is that Solum ends on a note of frustration, frustration not only with the dirty game of politics as it encroaches on the administration of justice through the legal system, but frustration with legal realism:

Some of you may think that human beings really are hard wired to be realists when given judicial power. … In my more pessimistic moments, I am inclined to think that the downward spiral of politicization must hit bottom and the rule of law almost utterly destroyed before political actors will come to see that the long-run costs of realist judging outweigh the short run political benefits. … The realization that the Supreme Court is becoming increasingly dysfunctional is growing. It is not, I think, utopian to believe that a consensus can be reached on the very great value of the rule of law. Legal realism is not written in the fabric of the universe; it is the product of human choices.

Realism has become the culprit. What is going wrong in the courts is the politicization of judicial decision making, what used to be called judicial activism: the infusion of political will into what should be the neutral, legal arbitration of disputes. Are realism and judicial activism connected? (Or is it simply that we call it judicial activism if liberal justices do it, and something else (such as realism) if conservative justices do it?)

If you consider that legal realism in this country started as a counter-movement against “mechanical jurisprudence” (a stylized opponent, not to say strawman), and if you further consider that the rhetorical exclusion of “real” issues from the decisions of the Lochner era in itself represented a political agenda of the courts, realism in its first and critical incarnation conceptually neither condemned nor condoned political or social agendas in judicial decision-making. What was to be condemned was that judges were hiding the ball, playing a three-shell game with legal doctrine, obscuring the social and political conflicts at work in the cases.

There is another, prescriptve strain to legal realism: Judges should ignore legal doctrine and take direct recourse to the social, economic, and political implication of the cases before them. If law (that is, legal doctrine) obscures the view of the real conflict, it should be discounted. And of course law always obscures the social, economic and politcal conflict. Such prescriptive realism sounds like a radical call for judicial activism. But judicial activism can operate effectively also under a mantle of legal doctrine, as the Lochner era shows. Can we assume that formalism, which may be an antidote to realism, will also be an antidote to judicial activism?

Still I find myself agreeing with Solum’s approach. By pitting the rule of law against realism, he suggests (a) that doctrine (meaning a certain degree formalism) is a necessary component of the rule of law, and that (b) the thing to be deplored about realism is its anti-doctrine, anti-law thrust (and not its power as a critical tool). What I would like to see is an integration of legal doctrine into a realist framework: a value of doctrine expressed in realist currency.

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