LEGAL REALISM AND JUDICIAL DECISIONMAKING
DO JUDGES DO THE BEST THEY CAN?
Stuart Buck at The Buck Stops Here in his posting on the “Legal Realism” of Brian Leiter writes:
“Judges are doing what they perceive themselves to be doing most of the time, viz., applying the law as best as they can.”
DO JUDGES DECIDE CASES ON THE BASIS OF NON-LEGAL NORMS?
Actually, I find myself in accord on that point, although my agreement on a judge perceiving himself or herself as doing “as best as they can” does not totally exclude the relevance of Brian Leiter’s opinion that “what really explains [a judicial decision] is the judge’s commitment to non-legal norms (moral, political, economic).” (emphasis added)
Buck admits that the concept of “legal realism” applies to some degree in appellate decision-making since “cases selected for appellate review are disproportionately the ones where the legal reasons are indeterminate, and so the necessity for political and moral judgment is inescapable.”
I would not necessarily agree with that entirely, since it supports Leiter too strongly on an issue where he should not necessarily be supported in full.
Indeed, where I disagree with Leiter is on his judgment that “non-legal” norms DO decide judicial opinions, rather than “legal norms”, as should be the case under the rule of law.
PERSONALITY, CHARACTER, BACKGROUND, INTELLIGENCE
Surely no one would disagree with the statement that our views of legal norms are guided by the variables of our personality, character, background, and intelligence, and that our views on morality, politics and economics are additional variables for decisionmaking which – to my way of thinking, however – are merely products of the former, more important “personal” variables.
Put differently, we are what we are. A Supreme Court Justice is thus not necessarily applying non-legal political, moral or economic norms to hard cases but, as I see it, is quite clearly applying his personality to the seamless web of the law – but that is a different issue.
THE PERSONALITY AND CHARACTER OF JUDGES IS THE MAIN VARIABLE
Some time after graduating from Stanford Law School and inbetween stints in the corporate department of Paul, Weiss et al., I and several others worked together with the late Professor James Lake (the linked .pdf has a picture of Lake, a Harvard Law grad) of the University of Nebraska Law School on a project to alleviate appellate delay.
The project worked together with the Justices of the Nebraska Supreme Court (I note in passing that the current – not then – Chief Justice John V. Hendry was a former Kaulins family lawyer as a practitioner – a very good man, if I may offer this biased comment). The aim of our project then was to reduce the caseload of the Justices by having qualified personnel write drafts of opinions for them in “easy” cases, i.e. this was work similar to clerks. However, the main difference was that we worked for no particular Justice and were assigned cases at random. We also had no direct contact with the Justices on cases – for ethical reasons. There was to be no influence exerted in either direction. The legal norms were to decide.
The whole idea of the project was of course based on the idea that “legal norms” DO decide cases and my experience in fact indicated that this was generally so. In many of the appealed cases, the law was so clear that there was really no real question about the judicial outcome so that judicial decisionmaking proceeded along the legal norms found in our draft opinions, although each Justice always wrote their OWN opinion, even if it relied on our drafts. In cases which were not clear, however, the Justices were far more likely to take the complete writing of an opinion into their own hands, and it seemed to me that it was the personality and character of the judges which then surfaced predominantly in their decisionmaking and opinions, not necessarily their moral, political or economic views, which seemed quite similar. During this time I saw very little evidence that “non-legal” norms decided cases.
WHAT IS THE ORIGIN OF LEGAL NORMS?
Legal norms are derived from lessons learned and experience gained from events which occur in day-to-day society over the timeframe of millennia so that events and legal norms form a symbiotic partnership. But this does not mean that the non-legal norms are DETERMINATIVE of judicial decisionmaking. Rather, legal norms are INFLUENCED by the prevailing morality, politics and economics of the times, and the prevailing legal norms are thus similarly subject to change to accord with those changing times. Still, it would seem to me that judges nevertheless apply the law as they see it and that most of them surely would describe their work as serving “the rule of law”.
THE CONTINUITY OF LAW OVER TIME SPEAKS FOR THE JUDGES
Indeed, if judges ONLY applied non-legal norms, then law would be valid only for the short-term, guided by the serendipity of the present. The fact that law sustains itself over the long term and the fact that legal norms have developed and grown over thousands of years suggests that in fact, judges do prevailingly decide by applying “legal norms” and NOT by falling back on non-legal popular norms of the moment, at least in our Western society, where the “rule of law” is seen as the governing force.
The situation may be different in societies where the rule of law is not the basis of government and where men rule by fiat, religious conviction and the whim of the moment. Indeed, it would seem that THESE societies are the ones that are currently the enemies of the Western world.