Whenever a court issues a highly publicized liberal activist decision, constitutionalists understandably become upset. They cast around for ways to stop this kind of overreaching.
But if you want to devise a viable solution to misconduct, you have to understand the reasons for the misconduct. And constitutionalists almost invariably overlook one of the core reasons. This post discusses that reason. Next week we shall address possible solutions.
Federal judges and state supreme court justices are largely drawn from a group that, from the time they are law students, are trained in a particular view of the law. Its promoters call it “legal realism,” although it is neither particularly legal nor entirely realistic. Legal realism is sharply at odds with the view of law on which our Constitution is based. Legal realism empowers judges intellectually and socially to subordinate the law to promoting favored social policy.
The Founding Era View
Let’s revert to the Founding Era for a moment: Although the Founders did not think much of the British king or parliament, they deeply admired the English legal system. Over the previous two centuries, the English legal system had evolved from a mere tool of the king into a cluster of institutions with a reputation for independence tempered by incorruptible respect for the law.
In England and 18th century America, judging was a learned, but fundamentally humble, enterprise. When interpreting statutes and other documents, judges did their best to follow the “intent of the makers.” When a document didn’t control the case, judges explored other documents, surrounding circumstances, earlier court decisions, customs, and the principles of natural law. From these they deduced as well as they could the correct rule for the case at hand.
Deducing the correct rule is similar to developing a scientific hypothesis. In science, you examine the reliable data available and try to infer a workable hypothesis to describe or explain them. In the Anglo-American common law system, a judge examined reliable data presented to the court—testimony, documents, other evidence, earlier cases, prevailing custom, rules of interpretation, and so forth—to extrapolate a general principle applicable to the controversy before him.
Among those reflecting these values were two leading Founders who also were outstanding lawyers, Alexander Hamilton and John Marshall. (The real John Marshall, not the liberal activist some law-school text writers make him out to be.)
In those days, law students were educated primarily by serving as “clerks” in the offices of experienced and successful attorneys. They also attended numerous court sessions. Their education was very practical. And each generation of judges and lawyers passed judicial values onto the next generation. (Some English and American law students attended London’s Inns of Court, where they absorbed the same ideals.)
The Founders erected the American legal system to operate in the context of Anglo-American judicial values. The rules placed expressly or implicitly in the Constitution—life tenure, jurisdiction, judicial review, and so forth—were designed to operate in that context.
However, the context changed.
Enter the Ivory Tower Philosophers
In the late 19th and 20th centuries the focus of legal education began to move away from lawyers’ offices and the Inns of Court to the new law schools. As time went on, more and more aspiring students attended law schools rather than clerked for senior attorneys. Significantly, more and more law schools became located on university campuses. They became influenced by university trends in the liberal arts and social sciences. Many law schools became government institutions.
The problems afflicting liberal arts universities, especially government universities, began to corrupt the law schools. Even though legal education is really just a fancy form of vocational education, committees hiring faculty ignored how much practical experience an aspiring professor might have. Quite the contrary, when I was in academia (1985-2010) they tended to discriminate against experienced practitioners. Hires were made for academic credentials and political reasons instead. Faculty slavishly followed the lead of trend-setter institutions like Harvard and Yale. So did professional associations. (Attend an annual meeting of the Association of American Law Schools, and you’ll see what I mean.)
“Legal realism” was one of the trends. Beginning in the late 19th and 20th centuries, writers such as Oliver Wendell Holmes, Jr., at Harvard and Karl Lllewellyn at Yale, taught that law “derives from prevailing social interests and public policy.” This quickly caught on among legal academics. Further, the idea that law was a creation of social interests and public policy suggested judges could improve the world by revising the law to fit their favored social interests and promote “good” public policy.
The PR Coup: Calling an Ivory Tower Theory “Legal Realism”
The favored position in the media enjoyed by the Harvard-Yale crowd enabled them to carry out a public relations coup (compare here and here). They called their ivory tower/central planning view of jurisprudence “legal realism.” They tarred the earlier, more practical view, with the insulting phrase “legal formalism.”
Now, it is true that there are many versions of legal realism, from Critical Legal Studies on the far left to the Law and Economics group that, within legal academia, passes for “conservative.” (It’s actually utilitarian.) But all legal realists share the idea that law should be used as an instrument of social policy and that judges ought to play a role in so using it.
My Experience at Cornell Law School: Legal Realism on Steroids
A good example is my experience as a law student at Cornell University. My contracts professor told us to think of legal rules not as rules, but as mere instruments for obtaining the desired result (“Tools, not rules,” he would say.) My torts professor spent a lot of time telling us that personal injury law should be rewritten to redistribute wealth. My constitutional law professor (a centrist who at Cornell was considered conservative) emphasized over and over again the need to “balance” policy factors in constitutional clauses where the framers and ratifiers already had done the balancing. Almost all professors asked us to judge case results by whether and to what extent they served “good public policy.”
So when Justice Sonya Sotomayor, while still was a federal appeals judge, casually told a law school audience that federal appeals courts make law, she was repeating modern academic orthodoxy. That is also why Richard Posner, a key American promoter of the law and economics school and now a federal appeals judge, says a judge ought to, essentially, decide the case first and look at legal materials later.
(Additional note: At the University of Montana, where I spent most of my teaching years, the orthodoxy was pushed right up front. All entering students were funneled into introductory lectures in which a professor informed them that natural law and formalism were “simple minded” and legal realism and its Critical Legal Studies subdivision were more “sophisticated.”)
Legal Realism is Neither Legal Nor Realistic
I figured out early that legal realism is not, strictly speaking, “legal.” Instead of being built on established legal principles, it rests on arbitrary factors such as the political views of the judge or how he thinks about matters not before the court. For example, suppose Mr. Seller contracts to sell a house to Ms. Buyer. Before the the deal closes, the place burns down though no fault of Mr. Seller. Should Ms. Buyer be required to purchase the house? The traditional common law rule was “yes.” A judge may not like that outcome, but he really has no way of knowing what the social results will be if he tries to change it. Traditional judges leave such issues to the legislature. Legal realist judges follow their personal guesses. In fact, a feminist-realist judge might even decide the case for Ms. Buyer because she is a woman, and therefore was not sufficiently “empowered” to negotiate her contact. This is not law. It is guesswork and political favoritism.
I eventually learned that legal realism is not particularly “realistic,” either.
Most people who eventually become law professors, if they practice law at all, do so for a few years in elite firms, government, or politically-driven legal aid shops. Fortunately, I turned down a Wall Street job and chose to enter grass-roots (“Main Street”) law practice. And I stayed there a fairly long time (10-12 years, depending on how you count) before returning to academia.
While in practice I worked with middle- and working-class Americans on ordinary cases, and in state trial courts. Over the years, I represented personal injury clients, a union local, and a municipality. I handled DUIs, divorces, and other lesser litigation. I represented real estate developers and people who purchased from, or sued, real estate developers. I wrote wills and contacts, and counseled small business people and non-profit associations.
What I learned was that for Main Street law, the “public policy” fixation was nonsense. At the grass roots level, judges didn’t purport to make policy guesses. Instead, they did their best to deduce and apply the law. After I became a professor and had confirmed my observations by study of thousands of cases on many different legal subjects, I wrote an essay explaining my observations. The essay showed how jurisprudence really works for most people most of the time.
But our problem is not how the law works most of the time, but how it works in federal tribunals and in the state supreme courts. That is where judicial activism occurs.