BRIGHT IDEAS: A Dialogue with Brian Tamanaha

Professor Brian Tamanaha (Washington University School of Law) has been publishing a number of must-read works in jurisprudence.  His latest book is Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2010).  Brian was gracious enough to respond to my request for a brief dialogue about his ideas in the book.  I agree with quite a lot of what Brian argues, but I played a bit of a skeptic in my interview questions, as I wanted to push him on some of his arguments.  Here’s our exchange:

Solove: You argue in your book that the “formalist-realist divide” is a myth based on a straw-man account of formalism – that formalists were unduly rigid and mechanistic and that realists correctly pointed out that judges weren’t purely objective robots. You spend the first part of your book debunking the traditional view of formalism, noting that formalists were much more balanced and realistic than their critics give them credit for. You argue that dethroning this picture of formalism should lead to an embrace of “balanced realism.” What do you mean by “balanced realism”?

Tamanaha: My argument is not quite that we have bought into a “straw-man [or exaggerated] account of formalism,” but more strongly, that the “formalist age” was a pure invention by progressive critics to paint judges as deluded or deceptive. I provide substantial evidence in the book showing that judges and jurists at the turn of the century did not believe in “formalism.” There were no avowed “formalists” in the U.S. legal culture (although it did exist in German legal science). Indeed, “formalism” was used as an insult at the time; they associated formalism with a primitive stage in law, which they had progressed beyond; “the Zeitgeist and its dislike of formalism,” wrote a jurist in 1893. I show in the book that, contrary to conventional accounts of the so-called formalist age, the jurists now identified as leading “formalists” (Cooley, Carter, Dillon, etc.) all said very realistic things about judging.

“Balanced realism” recognizes that there are gaps in the law, that sometimes judges have discretion and must make choices, that different judges can sometimes interpret the same law in different ways owing to differences in perspective and background, that inconsistent precedents or conflicts in the applicable law can exist, and that sometimes judges manipulate the law to reach desired ends (I called these factors the “skeptical aspects”); but “balanced realism” also recognizes that a substantial bulk of the time the rules and their application are clear and predictable, that surrounding institutional factors constrain judges, that most judges abide by the commitment to follow the law, and that the overwhelming majority of judicial decisions are legally determined (the “rule bound” aspects).

I call this “balanced realism” because it acknowledges the limitations inherent to law and human judges—which cannot be eliminated—yet it also recognizes that law nonetheless works, that judges can and do render rule bound decisions. For at least two centuries, the book shows, judges and jurists have described law and judging in balanced realist terms. The formalist-realist divide that dominates contemporary views of judging tends to obscure this common ground.

Solove: You write that “the greater danger to the legal system today is posed not by excessive formalism but by excessive skepticism about judging” (p. 197). What do you mean by this?

Tamanaha: The rule bound aspect of judging can function reliably within a legal system notwithstanding the challenges attendant to the skepticism-inducing aspects, but this is an achievement that must be earned, is never perfectly accomplished, and is never guaranteed. Excessive skepticism about judging threatens to disrupt the balance. If our legal culture buys into the view that judging is a cover for politics, then judges might well come to think it is naïve or foolish to strive to live up to the commitment to rule in accordance with the law. If this commitment is lost, rule bound judging will diminish.

Today, many law professors, and political scientists who study courts, openly express skepticism about judging. The politics that now surrounds federal judicial appointments and state judicial elections fans this skepticism among the public. That is why I am concerned about the spread of excessive skepticism. In the book I quote Thurman Arnold (a legal realist) raising the same concern, that skeptical “realism, despite its liberating virtues, is not a sustaining food for a stable civilization.” Fortunately, the ideal that judges must strive to rule in accordance with the law runs deep within our legal culture, and appears to be resilient.

Solove: I see your project in this book, as well as other work, as an attempt to rescue the concept of the rule of law. For a long time, there have been critical attacks on the rule of law, arguing that it is really just a myth. At best, judges think in good faith they’re following the rule of law, but in fact, they are injecting their own preferences into their interpretation of the law. At worst, judges wrap themselves around the law, claiming that the law compels the outcomes they want, but this is just a façade for their getting to particular results they desire. Are these attacks invalid?

Tamanaha: These attacks are correct as an abstract matter but incorrect as a descriptive matter (at least when offered to describe how judging operates generally in the U.S.). As the skeptical aspects of balanced realism recognize, law has a margin of indeterminacy and degree of flexibility that cannot be eliminated. In a manner of speaking, the law is defenseless against a bad faith judge who is determined to reach a desired outcome. Furthermore, even a good faith judge can be influenced unknowingly by cognitive biases or can engage in subconscious motivated reasoning.

One might take the position, as critics sometimes do, that owing to these factors the rule of law is impossible. But that is an unrealistic stance, one which insists that anything short of perfection is a failure or a fraud. The rule of law, as a political ideal and a human social practice, must be understood and constructed in a way that accepts these limiting conditions of law and human judges. It cannot be otherwise.

Judges have been indoctrinated into the legal tradition and legal practices. Judging takes place in a thick institutional setting that envelopes judges in legal layers which help counteract the factors highlighted by skeptics. The collective result is a system of rule based decision making by judges (though never perfectly so). Compelling proof that our judges live up to the demands of rule of law can be seen by comparing our legal system with the failing legal systems around the world that suffer from systemic judicial corruption or from a judiciary infected with pervasive politics. Skeptics who castigate the rule of law as a fraud have the luxury to do so precisely because they enjoy (and take for granted) the protections provided by our legal system.

As you observe, my recent books (including On the Rule of Law and Law as a Means to an End) reflect a sustained effort on my part to articulate and support the rule of law. Despite its flaws and abuses (which I have also written about), I believe the rule of law is a bounty to our society and I am doing my part to defend it in a skeptical age. Every generation replays its own struggle between critics and defenders of the law. If I had been writing at a different time, a time when law needed to be shaken up, I might well have lined up with the skeptics.

Solove: It is true that many judges function just fine without the view that there are objectively true answers in law and that they aren’t totally constrained by law. If formalism under your view doesn’t mean that law has objectively true answers, then doesn’t it become nothing but a rather weak exhortation for judges to try their best to be faithful to the law? Judicial visions of what being faithful to the law are varied. Some judges stick more closely to plain meaning. Others try to divine legislative intent. Others interpret the law purposively, attempting to interpret the law most sensibly in light of the circumstances in which it was created and the circumstances in which it is to be applied. All of these judges would say that they’re following the law, though some would stray quite far from the language of the law. There’s a lament today that in the post-realist age, there is no convincing way to say that certain judges are not following the law beyond appealing to established conventions or norms of interpretation. But there are so many dramatically different methods of legal interpretation, with no clear prevailing accepted method, that the established conventions/norms really don’t tell us that much. How do you respond to this problem?

Tamanaha: You are correct that jurists disagree across a range of issues, from the relevance of purpose and legislative intent in interpretation, to the weight of “plain meaning” or considerations of justice. My book makes two essential points about these disputes. First, these are age-old debates that are unlikely to be resolved because they revolve around normative and empirical disagreements about law and judging that have solid arguments on all sides. Second, these debates do not directly bear on the routine mass of cases that judges decide because the issues they relate to usually arise in situations of genuine legal uncertainty (frequent in Supreme Court cases, but far less so in lower courts). This is not to say that the debates are unimportant; my point, rather, is that they do not undermine the general rule bound character of judging in the legal system taken as a whole because they come up only in a relatively small subset of cases.

An assertion you make betrays precisely the kind of mindset I hope to counter. As you suggest, I do not believe that law has “objectively true answers.” (I do believe, however, that frequently there are legally “correct answers” and “incorrect answers,” as determined by prevailing legal conventions and practices, and I believe that, short of this, there are usually legally stronger answers and weaker answers.) If objective truth in law is impossible, you conclude, “doesn’t it become nothing but a rather weak exhortation for judges to try their best to be faithful to the law.”

Your assertion implies that if objective truth is impossible we are left grasping at weak and inadequate hopes. I don’t see it that way mainly because (as a pragmatist) I don’t believe that objectively true answers exist in any realm of human endeavor (although we do have many conventionally true answers), yet our projects in the world succeed regardless of this absence.

The exhortation to “judges to try their best to be faithful to the law” is the essential backbone of a rule based system of judging. It is not a “weak” exhortation, but an indispensible demand we make of judges, the defining oath they take when they assume the bench. This exhortation has a powerful effect because, when striving to live up to it, judges render decisions in accordance with what they think the law requires (decisions they might not personally agree with). You are correct that, at bottom, this exhortation is all we have. Remarkably, however, this exhortation (in combination with the legal layers mentioned above) provides a sturdy foundation for a rule based system of judging.

Solove: Although many cases, there are fairly clear answers in the law, the problem is that in many highly politicized issues (abortion, affirmative action, free speech, campaign finance, gun control, etc.) the answers in law aren’t very clear. At every Supreme Court Justice confirmation hearing, we hear the prospective justice utter shibboleths about how they are going to follow “the rule of law,” and yet everybody knows that they were nominated because they will likely reach interpretations consistent with the President’s political ideology. So although I’m a pragmatist like you, and I lament the consequences of excessive skepticism of the rule of law, I also wonder whether we can ever go back to a more robust view of the rule of law. Is it possible to resuscitate belief in the rule of law in our current skeptical landscape?

Tamanaha: The skeptical aspects of law recognized by balanced realism—uncertainty, disagreement, choice, political pressures—show up in a high proportion of Supreme Court cases, while the rule bound aspects are proportionally less present.  This represents, in a sense, an inversion of the normal balance of these factors within law and judging generally.  The Supreme Court is  a unique institution in our political-legal order (although state supreme courts share certain characteristics), one perhaps  more aptly called “The Final Court for Legally Uncertain Controversial Issues.”   Keep in mind, furthermore, that the Supreme Court decides about 75 cases a year, a diminishingly tiny piece of the total number of federal and state cases (although important cases, to be sure).   For these reasons, it is a serious mistake to draw any conclusions about the system as a whole, or judges generally, based upon the Supreme Court.  The fact that there are undeniable (and ineradicable) political influences on this court does not mean that judging generally works the same way.

As you point out, the rhetoric in confirmation hearings (“I call balls and strikes”) rings false, and everyone, or at least every lawyer, knows it.  Sir Henry Maine noted in 1861 that jurists, when denying that judges make law, knowingly resort to a peculiar “double language” to cover what “is not so much insensible as unacknowledged.”  There is no reason—beyond the perceived requirements of political theater—to continue this practice today.   As the book reveals, many dozens of judges in the past century-and-a-half have openly stated that in legally uncertain cases they often make choices which their personal views can influence in subtle ways (even when the judge tries to screen this out).

Your final question, in my view, is pitched too broadly.  We believe in the rule of law every day without ever thinking about it—when we engage in transactions (pay rent, buy a house or toaster), when we interact with others, with the police, the automobile registry, our local bank, and so forth.  We go about our daily lives implicitly counting on the fact that legal rules exist and will be duly applied by legal officials if anything goes wrong.

The skeptical landscape you refer to most immediately relates to our legal culture, to legal academics and legal professionals.  This is critically important because the law is substantially created by and through our activities.  One way to resuscitate belief in the rule of law among ourselves, in my view, is to come to grips with and accept the implications of balanced realism, which helps contain the skeptical aspects of law to where they belong, allowing us to appreciate and advance the many realms and ways in which law works quite well.

Thank you for the exchange.

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