by Rob Natelson, Electric City Weblog

Supreme Court nominee Sonia Sotomayor’s comment at Duke Law School that the U.S. Court of Appeals “makes policy” has received a lot of attention, and deservedly so. Understanding what prompted her remark is key to understanding what has happened to our Constitution in the modern era.

Before the Twentieth Century, judges followed certain age-old traditions of judging. When considering a case controlled by a statute, judges tried to apply the precise words of the statute to the case before them. When the wording was unclear, judges either applied the pre-existing common law or sought to apply the intent of the lawmakers who passed the statute.

In rare cases where, due to drafting error or unforeseen circumstances, the words were flagrantly inconsistent with what the lawmakers intended, courts tried to follow the intent rather than the words.

When there was no controlling statute, judges resorted to common law. They first sought to deduce the solution to the present case from former cases. If that was not possible (as when the precedents were hopelessly contradictory or none was relevant), judges sought to apply the underlying principles of the Anglo-American common law.

This sometimes was referred to a “discovering the law.” Among those basic principles were that consensual agreements were to be enforced and non-consensual loss on innocent parties was to be avoided.

Early in the Twentieth Century, a group of leading lawyers rejected the traditional way of doing things. Figures such as Supreme Court Justice Oliver Wendell Holmes, Jr. and Judge Jerome Frank argued that, whatever judges pretended they were doing, they really were making law, so they might as well use their law-making opportunities to shape good social policy.

This group called themselves Legal Realists, and they denigrated traditional jurists by labeling them “legal formalists.”

In the intervening years, Legal Realism and its variants and offshoots have become Legal Orthodoxy – at least in the nation’s law schools. Legal realism also has become widespread on the bench (although my 1992 study of real estate cases found that it was not yet dominant in that area of the law).

Judge Sotomayor is clearly a legal realist, as shown by her Duke Law School comment and, elsewhere, by her approving references to Jerome Frank. Indeed, given the prevalence of Legal Realism among the liberal jurisprudential elite, it would be surprising if she were not of this persuasion.

In a constitutional case, a judge should apply the Founders’ policies, not his or her own. Obviously, though, a philosophy that encourages a judge to make policy in other cases may encourage the judge to make policy in constitutional cases, also.

Several members of the current Supreme Court are clearly of the Realist persuasion – see, for example, Justice Stephen Breyer’s dissent in the recent D.C. gun case. Justice Souter also is a Realist who dismisses arguments he doesn’t like by branding them as “categorical formalism.”

Souter’s replacement by Judge Sotomayor would not be a big change on that score. But it would be a missed opportunity to render our government more faithful to its constitutional roots.

Rob Natelson is Professor of Law and David Mason scholar at the University of Montana, where he teaches constitutional law and constitutional history.  He is currently seeking a publisher for his latest book, The Original Constitution.

Rob Natelson

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