Judging Judges: Values and the Rule of Law. By Jason E. Whitehead. Waco: Baylor University Press, 2014. 253 pp. $49.95 cloth.

Judging Judges: Values and the Rule of Law. By Jason E. Whitehead. Waco: Baylor University Press, 2014. 253 pp. $49.95 cloth.The rule of law has fallen on hard times. Today political scientists and legal scholars often deride the notion that law can constrain judges as a naeuroive mythology. Supreme Court justices are characterized as voting in "liberal" or "conservative" blocs, as if political ideology alone determines how they decide cases. In Judging Judges, Jason Whitehead seeks to rescue the idea of the rule of law from academic critics and to revitalize it for a post-Realist era.The faith in the rule of law began unraveling as a result of two academic movements in the twentieth century. First, the Legal Realists bunked formal, mechanistic conceptions of judging and demonstrated instead how law and politics were deeply interwoven in the judicial mind. Then came along positivist social scientists who endeavored to use judicial voting data to show judges decided cases on the basis of ideological preferences rather than objective legal principles.Coming to terms with these twin movements is not easy. Judges, even those who accept that law requires political choices, reject the idea that they decide cases on the basis of personal preferences and they insist that law matters. Academic critics insist the evidence is to the contrary, that such thinking is either self-delusion or deceitful.So which is it? Are judges deluded or do academics misunderstand how law works? Whitehead argues that positivist studies focusing on judicial voting patterns mischaracterize the way that law constrains judges in a post-Realist context. Once untethered from its formalist trappings, law is better understood as a set of historically evolving, politically contingent professional practices and habits of thought, rather than objective principles that mechanically lead to correct decisions. Thus, rule of law is about a sense of fidelity; it happens when judges feel internally bound by their best understanding of the relevant professional norms and practices, not when they reach "correct" decisions.This post-Realist reconceptualization of the rule of law builds on earlier work by Howard Gillman (2001), which Whitehead sets out to more fully elaborate and build an empirical account using interviews with 25 state and federal appellate judges.In the most important part of the book, Chapter One, Whitehead develops his theory of rule of law and distinguishes it from conventional views. Canvassing classic writings on the subject, he explains that traditional views were positivist and formalist; embracing an "outside in" view of law as a set of external rules "discovered through the use of disinterested human reason" which judges applied "in an objective, value-free way" (p. 12).Realism rendered such views untenable, so Whitehead argues we must focus less on external rules and decisions, and more on the subjective, socially accepted standards which motivate judges. Empirically, there can be any number of such standards as legal and professional norms constantly evolve and are contested. But normatively judges must be motivated by "fidelity" to the norms they themselves believe make up the shared social practice of law. Judges uphold rule of law whenever they hold the proper attitude of fidelity and consider it their mission to follow their best understanding of the shared professional norms and rules.Whitehead identifies three sources or social practices that produce a sense of fidelity to law: the socialization of the legal-professional community into a sense of "stewardship" over law; the proper attitudes about the function of legal language and doctrine; and the acceptance of judicial virtues such as fairness, impartiality, and integrity. …