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Is Sotomayor A Legal Realist? (And Are Those Fighting Words?)

Rick Hills doesn't think it makes sense to call Judge Sonia Sotomayor a "legal realist."

Meanwhile, Politico reports "legal realism" may become the new "judicial activism."

Related Posts (on one page):

  1. Is Sotomayor A Legal Realist? (And Are Those Fighting Words?)
  2. Sonia Sotomayor: Legal Realist:
frankcross (mail):
This article seems odd to me. Legal realism does not claim that judges consciously consider extralegal factors. But I suppose the author means that a "legal realist" is one who consciously realizes that judges do consider extralegal factors. But such a judge would not necessarily express this in her opinions. Judge Sotomayor could well believe that judging is not a simple legal endeavor but appreciate that expressing this position in her opinions is not fruitful. I would hazard that there are very many judges who have been legal realists but not put that in their opinions. Indeed, a true realist might realize that her circuit court opinions could be weakened by expressing them in realist terms.
5.31.2009 10:40pm
Dilan Esper (mail) (www):
It's been a decade and a half since I spent any serious time studying theories of jurisprudence, but I would locate Judge Sotomayor's statements closer to the race and gender theories of Critical Legal Studies. Legal Realism just says that legal principles don't actually decide cases; in the end, they are the window dressing behind which the judge reaches the result he or she wants. But CLS is very big on the idea of race-and-gender standpoint theory, the idea that people bring certain perspectives to judging based on their race and gender.

That said, I don't see what any of this has to do with whether she should sit on the Supreme Court.
6.1.2009 12:20am
Jon Roland (mail) (www):
Legal realism is about according undue deference to the decisions of judges, treating their opinions as law, not just for the parties to the case, but for the rest of us as well. In other words, treating judges as lawmakers, contrary to Art. I Sec. 1 Cl. 1.

For a judge legal realism would be according undue deference to the decisions of other judges, especially when they are clearly wrong as a matter of text, logic, and history.

Legal idealism, then, respects judicial decisions only when they get it right, and regards them as null and void when wrong.
6.1.2009 1:06am
Dilan Esper (mail) (www):
Jon:

Legal realism has nothing to do with following precedent. Legal realism was the intellectual movement of Holmes and Llewellyn. Law is not a brooding omnipresence in the sky, the life of the law is not logic but experience, legal reasoning is window dressing, etc.

Following judicial precedent has been a feature of American and English law for hundreds of years. It isn't some modernist fad.

And nobody says that decisions of other judges that are "clearly wrong as a matter of text, logic, and history" should be given undue deference. But: (1) many such decisions aren't nearly as "clearly wrong" as you might think, and the fact that a very smart person made a decision you think is "clearly wrong" is often an indicator that perhaps things are not as clear as believe, and (2) even decisions that are "clearly wrong" often engender reliance and become accepted and entrenched in society.

I guess legal realism would have a bit to say about these things (though neither is at the center of legal realism)-- certainly legal realism would be skeptical of people saying that legal texts were really often so clear, and legal realists would certainly look to societal impact before deciding to overrule precedent if such a decision would cause a huge shock to society.

In any event, and more generally, I think conservatives (including you) are way, way too obsessed with this notion of abstract "correctness" of judicial decisions. Judges are going to inevitably get things wrong. That's not necessarily the worst thing in the world, as long as the system as a whole works and is consistent and coherent. To use Chief Justice Roberts' "umpire" analogy, umpires don't always get the strike zone right. But that's not the end of the world, as long as the strike zone is called consistently. Batters and pitchers can adapt.
6.1.2009 1:30am
Jon Roland (mail) (www):
Dilan Esper:

Legal realism has nothing to do with following precedent. Legal realism was the intellectual movement of Holmes and Llewellyn.

We have some of the key writings of the legal realists on our website, and, yes, I actually read what is on my site.

In any event, and more generally, I think conservatives (including you) are way, way too obsessed with this notion of abstract "correctness" of judicial decisions. Judges are going to inevitably get things wrong. That's not necessarily the worst thing in the world, as long as the system as a whole works and is consistent and coherent.

I do not self-identify as "conservative".

And your second statement quoted above is inconsistent with the first. But for a legal realist that is okay. For them law doesn't have to be consistent, only predictable (although for us idealists how law can even be predicatble if inconsistent can only be explained if judicial decisions are based only on power and not on principle).

I say, with Justice Mansfield, "Fiat iustitia ruat cœlum", Let justice be done though the Heavens fall.

If the law is not logical it is not law. Logic can be informed by experience, but not replaced by it.

The shocks that would come from strict compliance with the Constitution, as originally understood, would indeed be severe for some for a while, but in the long run would be good for us. We're not talking about putting "reliance interests" up against the wall.

There are a few decisions where there is a fine line,. but it is indeed possible to determine original meaning in most cases.

I'll give you a hint: If we were compliant the central government would have to cease about 95% of what it is doing as unconstitutional. That includes all criminal prosecutions based on the Commerce Clause, as extended by the Necessary and Proper Clause. Wickard v. Filburn was flat-out wrong.
6.1.2009 2:49am
Joseph Slater (mail):
I realize this is continuing down an off-topic road, but. . . .

Jon:

Do you really believe that if the Supreme Court tomorrow ruled that the "central government would have to cease about 95% of what it is doing as unconstitutional" that what would actually happen is that the "central government" would cease 95% of its activities?

I ask because it often seems to me that some right-wing libertarian types actually believe that gosh, if only the Supreme Court would overturn Wickard and other New Deal precendent, then we wouldn't have these laws that right wing libertarians dislike (the FLSA, NLRA, Civil Rights Act of 1964) -- despite the fact that these laws enjoy overwhelming popularity. That doesn't seem, um, "realistic."
6.1.2009 8:07am
Jon Roland (mail) (www):
Joseph Slater:

Do you really believe that if the Supreme Court tomorrow ruled that the "central government would have to cease about 95% of what it is doing as unconstitutional" that what would actually happen is that the "central government" would cease 95% of its activities?

It wouldn't happen that way. One case would open a flood of more cases, which would take a decade or more to unfold. Eventually, if courts refused to enforce the unconstitutional actions of the central government, it would have to either rule by martial law, or there would be a movement to adopt constitutional amendments to delegate the undelegated powers, and we would have a national dialogue, amendment by amendment.


I ask because it often seems to me that some right-wing libertarian types actually believe that gosh, if only the Supreme Court would overturn Wickard and other New Deal precendent, then we wouldn't have these laws that right wing libertarians dislike (the FLSA, NLRA, Civil Rights Act of 1964) -- despite the fact that these laws enjoy overwhelming popularity. That doesn't seem, um, "realistic."

Please don't show your ignorance or incivility by using content-free terms like "right-wing" or "left-wing". About the only meaningful use of those terms would be about redistributionst issues, and I am not discussing such issues here. Political and legal positions do not fall on a simplistic one-dimensional spectrum. Take the World's Smallest Political Quiz to see what at least two dimensions looks like.

As for those and other statutes, if people had to debate amendments to make them constitutional, I expect you would find that most of them are not as popular as you seem to think. The overwhelming majority of people don't know or care about any of them. Only special-interest groups do. Voters vote for personalities, not issues, and if the issues were really separated out you would find little support.

Despite progressive belief to the contrary, the Constitution is not amended by elections.
6.1.2009 10:39am
Joseph Slater (mail):
Jon Roland:

I'm sorry you took the term "right wing" to be offensive; I merely meant it as descriptive.

I do think I identified where we differ, however. You honestly believe that if the Supreme Court overturned, say, New Deal precedent, that over a course of 10 years, we woulde have a society without, say, a federal labor law, minimum wage law, or civil rights law. I think that's entirely incorrect, because I think those laws are, in fact, supported by clear majorities, not merely "special interest groups." See also every other advanced industrial democracy.

I'm reminded of CLS folks in the 1980s who argued that only the Consitution would be correctly interpreted, we would have socialism in the U.S. That was wrong too.
6.1.2009 11:32am
Joseph Slater (mail):
". . . . IF only the Constitution would be correctly interpreted. . .
6.1.2009 11:42am
Dilan Esper (mail) (www):
Jon:

Whether you self-identify as one or not, you are definitely right wing.

And yes, any constitutional theory that says that the Supreme Court must overturn precedents, the result of which would be the declaration of 95 percent of the federal government is unconstitutional is one that is insufficiently respectful of precedent.

Really, you confuse being a nation of laws with being so worshipful of the abstract purity of laws that we are willing to absolutely uproot and trounce people's reasonable, settled expectations with respect to the society they live in. You worship legal abstractions as if they were a deity.

Some very smart people interpreted the Constitution in ways you don't like. The first thing you should conclude from this is that maybe you are wrong and they are right-- because I guarantee you that your average Supreme Court justice over history is a lot smarter than you are (or I am).

The second thing you should conclude from this is that what you would like to see would require a huge shock to the system. So what value are you pursuing that justifies that shock? What do you hope to accomplish? Do you really think that the abstract value of a "correct" rather than "incorrect" constitutional interpretation is sufficient to justify this? If not, what is it that you are trying to accomplish?

We don't adhere to precedent because we are in love with "wrong" interpretations of the Constitution. We adhere to precedent because the stability and consistency that you say you want is only really achieved if there is some respect for precedents, even precedents that may be wrongly decided.
6.1.2009 12:34pm
Jon Roland (mail) (www):
Dilan Esper:

any constitutional theory that says that the Supreme Court must overturn precedents, the result of which would be the declaration of 95 percent of the federal government is unconstitutional is one that is insufficiently respectful of precedent.

Binding stare decisis is logically incompatible with having a written constitution that is the supreme law. Treating precedent as persuasive is one thing, but when one treats them as binding one is introducing provisions of a new constitution that is not derived from the one of 1787.

Really, you confuse being a nation of laws with being so worshipful of the abstract purity of laws that we are willing to absolutely uproot and trounce people's reasonable, settled expectations with respect to the society they live in. You worship legal abstractions as if they were a deity.

The Constitution Society is also known as the Constitutionalist Church, but our "devotion" is to the constitutions of nature and society, with which constitutions of government must be compatible.

Your position is essentially that of O'Brien in Orwell's 1984. I am insuisting that 2 + 2 = 4 and you are maintaining it is whatever the Party says it is from one moment to the next. You might get a weak character like Winston Smith to cave to that under torture, but if you try to apply that "logic" to fields like science and engineering nature will punish you.
I guarantee you that your average Supreme Court justice over history is a lot smarter than you are (or I am).

My professional fields include mathematics, physics, computer science, and linguistics. From my viewpoint almost all judges and lawyers are guys who couldn't make it in those fields.

But it is not just a matter of intelligence. It is also a matter of integrity and the willingness to stand alone against the crowd on a point of principle. Guys who have that don't get to become judges in our system.

What do you hope to accomplish? Do you really think that the abstract value of a "correct" rather than "incorrect" constitutional interpretation is sufficient to justify this?

Yes. As I said, we are not talking about standing them up against a wall. They make pills for that. They'll get over it.

We adhere to precedent because the stability and consistency that you say you want is only really achieved if there is some respect for precedents, even precedents that may be wrongly decided.

Nonsense. Those are prudential decisions for the convenience of judges who lack either the honesty, time, or cognitive capacity to get it right.
6.1.2009 1:44pm
Dilan Esper (mail) (www):
Jon:

I am sorry that you think you are smarter than some of the great intellects in the country.

Humility, you know, is an important aspect of judging as well.
6.1.2009 2:37pm
Leo Marvin (mail):
Dilan,

Humility, you know, is [...]

This conversation will get nowhere if you use terms unknown in the blogosphere.
6.1.2009 5:07pm

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