Realism About Judges

[J]udicial responsibility . . . connotes the recurring choice of one policy over another . . . .[dagger] The courts must address themselves in some instances to issues of social policy, not because this is particularly desirable, but because often there is no feasible alternative.[double dagger] Henry Friendly and Roger Traynor, the authors of the epigraphs of this paper, were two of the most distinguished American judges of the modern era. The realistic theory of adjudication that they summarized in the passages I have quoted was orthodox when they wrote. Similar passages could be quoted from Holmes, Hand, Cardozo, Brandeis, Jackson, and other distinguished judges, from leading academics and practitioners, from presidents like Franklin Roosevelt, and from philosophers like John Dewey. The realistic theory can be traced back to Plato's dialogues, before there was a legal profession or professional judges. In the Apology, Socrates notes that each judge (really juror-there were no judges) "has sworn that he will judge according to the laws, and not according to his own good pleasure" 1-but in Gorgias Socrates predicts that his trial will be the equivalent of the trial of a doctor prosecuted by a cook before a jury of children.2 And in the Republic Thrasymachus argues that justice is simply the will of the stronger. We find the first full articulation of the realist view in the late eighteenth century, in Jeremy Bentham's Introduction to the Principles of Morals and Legislation. We find it amplified in the self-described "legal realists" of the 1920s and 1930s, such as Jerome Frank and Karl Llewellyn, in the "legal process" school of Henry Hart and Herbert Wechsler, and in the "critical legal studies" school of the 1970s. It has assumed its present form as a result of contributions by economists, political scientists, psychologists, and sociologists-and by lawyers, some with degrees in other fields as well, who adopt a social-scientific approach to law. The realist view has always been strongly opposed. The opponents, the legalists, believe (or pretend to believe) that adjudication is strictly analytical, with no tincture of ideology, no taking sides on issues of social or economic policy. The legalist theory of adjudication received its canonical modern expression by John Roberts at his senatorial confirmation hearing to be Chief Justice in 2005, when he said that the role of a Supreme Court Justice, which he would faithfully inhabit, was similar to that of a baseball umpire, who calls balls and strikes but does not make or alter the rules of baseball.4 This was echoed four years later by Sonia Sotomayor at her confirmation hearing.5 In an older metaphor, judges are oracles, applying law found in orthodox legal sources to the facts of new cases, such as statutory or constitutional text or judicial decisions having the status of precedent, and doctrines built from those decisions. They are transmitters of law, not creators, just as the Oracle at Delphi was the passive transmitter of Apollo's prophecies. The analogy of judge to oracle was Blackstone's. He argued that even common law judges were oracles, engaged in translating immemorial custom into legal doctrines rather than engaging in legislating doctrines.6 The modern idea of the judge as analyst shares with the idea of the judge as oracle the assumption that legal questions always have right answers: answers that can be produced by transmission from an authoritative source, though in the modern view the transmission is not direct but is mediated by analysis. No one actually believes that all judges, or even most judges, are always realists or always legalists. Although a great deal of adjudication involves the more or less mechanical application of given law to neutrally found facts, a great deal also involves policymaking, casting judges in a legislative role, and this whether they are doing common law reasoning, constitutional interpretation, or statutory interpretation. …