“A Judge Cannot Have Any Agenda” Judge Samuel Alito’s Opening Statement Senate Judiciary Committee – January 9, 2006
We have explored in prior columns the “Legal Process School of Jurisprudence a/k/a Formalism and the Doctrine of Original Intent. These judicial philosophies both incorporate in different ways the belief that process is more important than results in interpreting the law, i.e., that neutral principles or original intent should govern judicial decision-making.
The jurisprudential theories of “Legal Realism” and its successor the “Critical Legal Studies Movement” emerged in academic and judicial circles from the 1920’s to the 1960’s. These theories directly confronted and contradicted Formalism and Original Intent as explanations for judicial decisions and behavior. In his two books, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860 and its sequel THE TRANSFORMATION OF AMERICAN LAW, 1870-1960: The Crisis of Legal Orthodoxy, Morton Horowitz, who is described by Judge Richard Posner in his book OVERCOMING LAW as “a founder of the Critical Legal Studies Movement” informed his readers (mostly other Academics and students) that if you want to know what the law is and what judges are really doing, do not just read articles and cases – go into courtrooms and look at what’s happening. He also suggests looking at what is going on in society. Horowitz and other Legal Realists, as well as Critical Legal Studies devotees known in academic circles as “Crits” also urged that the prism through which we should peer into American courtrooms and through which we should view judges and their work product is “Skepticism.”
The model that we should follow, said the law professors and judges writing extra judicially who exclusively were responsible for these jurisprudential theories, is Oliver Wendell Holmes. Holmes, as quoted by legal philosopher, Jerome Frank in his book, LAW AND THE MODERN MEND, said most presciently, “The life of the law is not logic. It is experience.” Frank suggests that when we examine that experience that we recognize, as did Holmes, that when judges interpret the law they reflect their personal and political judgment of social policy and, in doing so, refer to the “habits of [the judge’s] community and to convenience.”
This “Rule of Skepticism” is further refracted through the Legal Realist and Critical Studies lenses by “Fact Skepticism,” which suggests that judges, particularly trial judges, who think they know the “facts,” do not, because facts are filtered through Rules of Evidence, Rules of Procedure, as well as statutory and common law frameworks, prescriptive mandates and guidelines to interpretation.
The only real difference between the Legal Realists and the Critical Legal Studies adherents other than time was that the Legal Realists relied on the literature and the principles of psychology drawn from Freud and other psychologists to criticize the operational premises of the legal system as described by the Formalists, while the academic legal historians and philosophers, who subscribe to the Critical Legal Studies Movement, used the writings of Marx and other economists of the Left to question the legitimacy of the legal and judicial system and to caricature it when given the opportunity.
The ultimate problem with both of these schools of jurisprudence as tools to analyze judicial decision-making is they assume a system that is forever void of any principles and values. It is simply driven by the personality of the judges, as well as their political, economic, and judicial philosophy. These schools of jurisprudence presume that judges decide what they want to do and then find a statute, case or rule to justify it. If it is necessary for the judge(s) to be intellectually disingenuous or even dishonest to do their job in this way, it is presumed that they will be. Ironically, this is exactly what some of the Senators on both sides of the aisle of the Senate Judiciary Committee seemed to be suggesting judges do? Otherwise, why did they seem to expect judicial nominees to state what he or she will do in advance without viewing the record of the case or hearing and reading the legal arguments on the issue? Are the members of the U.S. Senate Judiciary Committee closet “Legal Realists” or “Crits”? If so, are we prepared to “out” them or dispel the notion that present and future nominees for federal judicial office share their skeptical philosophy and perception of the job of judging?
In the meantime, what happened to the Legal Realists and the Critical Studies Movement other than those who became U.S. Senators and their staffs? Judge Richard Posner in his book OVERCOMING LAW relegates them to “the discourse of law professors and other jurists” and goes on to describe a few “naughty realists” as “chasing formalist butterflies until they turned into formalist butterflies themselves.”
However, some of the concepts developed by the Legal Realists and the Critical Legal Studies Movement were planted as seeds that later bloomed in the form of the various “Feminist Theories of Jurisprudence,” and also survived to engage in academic warfare with the School of “Law and Economics” and, ultimately, “Legal Pragmatism.” More about those soon in this same space. Stay tuned!