Legal Realism and the Lefty Blogosphere

The dispute between Prof. Althouse and various lefty blogs continues. Most recently, “Armando” of Dailykos posted this screed. Armando concludes:

In short, does not Althouse admit that she too, is a legal realist? And given that admission, is it not fair to expect that Althouse would approve of a query in detail regarding Alito’s views on legal issues? Is it not fair to expect that Althouse would not condemn critiques of the results of Alito’s opinions without trying to engage in hypertechnical “gotcha-isms”?

I am interested in the idea that legal realism entails a commitment to “query in detail . . . Alito’s views on legal issues.” There are lots of different types of folks who we might think of as legal realists, and I doubt that they could find a consensus about a definition of the school of thought, let alone a position on the scope of the Senate’s advise and consent role. But it is an provocative idea, wrapped in some hyperbolic clothing.

Armando continues:

[E]ven a legal realist like myself understands that the judicial rules place limits on how much wiggle room judges have to achieve their desired results. Concepts like precedent, consistency, rules of construction, political question doctrine, etc., place limits on the ability of judges to render any result they deem the correct one. And in a case like Bush v. Gore, adhering to those rules is more important by a factor of 10 than in any other case. It is precisely because of what was being decided that the SCOTUS’ actions in Bush v. Gore were egregious in a manner almost unequalled in the history of the Court. They should never have taken the case period . . .

Finally, what was the essential difference between the actions of the Florida Supreme Court as compared to the SCOTUS’? Very simple. The Florida Supreme Court HAD TO DECIDE the case. It had no choice. It could have ruled in favor of Bush or in favor of Gore. But it HAD to rule.

The Supreme Court of the United States had no such compulsion. Cert denied is all they had to say. They chose to do otherwise.

I think Armando is flat wrong here. Gore v. Harris, the ultimate Florida Supreme Court merits decision in the litigation, appears to be an exercise of discretionary jurisdiction under Section 3(b)(5) of the Florida constitution. But maybe that is the type of “hypertechnical gotcha-ism” that I ought to be avoiding. Whoops.

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5 Responses

  1. Max says:

    The problem is more that the people masquerading as anti-legal realists are utterly insane. Supreme Court Justices have nothing to guide them except precedent by which they aren’t actually bound. What possible theory of “law” could argue that to ask a judge’s beliefs about the law is inappropriate?

    Frankly, any individual who has not considered whether Griswold was rightly decided, and whether Roe and Casey are proper applications of it, should be automatically rejected from the Court for being grossly unqualified. The first time you think about the Constitution should not be your first day on the Supreme Court.

  2. SCOTUSblog says:

    Blog Round-Up – Saturday, November 26th

    The upcoming issue of Lews & Clark Law Review will focus on federalism after Gonzales v. Raich. It features a forward by Randy Barnett and articles by Ann Althouse, Thomas Merrill and others. On Concurring Opinions Dave Hoffman has this…

  3. John Jenkins says:

    Supreme Court Justices have nothing to guide them except precedent by which they aren’t actually bound. What possible theory of “law” could argue that to ask a judge’s beliefs about the law is inappropriate?

    What about the Constitution as a guide? How about a theory that assumes judicial humility and formalism (i.e. being bound by the text of statutes and the Constitution)?

    If your assumption is that the Supreme Court should make it up as they go along, then you’re right. Not everyone believes that, however, and your potshot reveals your lack of having considered the alternatives; beams and motes and all that.

  4. Max says:

    By “guide” I mean, “guide to the Constitution.”

    For example, what does “due process” mean?

    Maybe to you “due process” means what it meant at the time of the adoption of the 5th Amendment. That’s your belief; it’s not a matter of black letter law. Even if it was, what then do we do with the 14th Amendment’s application of rights protections to States? Do we use “due process” from 1789 or 1865?

    Maybe that’s what it means to Alito — and that’s why it’s essential he be asked it and that the Senate demand an answer. The same should be true of any nominee, whether they appear to be liberal or conservative.

    The fact that someone has served years on a Federal Court and shown themselves highly capable of judging reasonably is relevant to their “qualification” to the Supreme Court, but it is by no means dispositive. There is simply no way around asking a nominee for their beliefs about the Constitution. Frankly, I don’t see why anyone would want their potential justices to talk around the Constitution. Are conservatives pleased with Souter? He never once lied about his beliefs; maybe if someone had asked him, they would have known and could have made a more informed decision.

  5. John Jenkins says:

    You’re conflating two issues. It’s a fundamentally different question to ask “by what rules ought interpretation be done” than “what does this mean to you?”

    If you’re committed to the strongest form of the realist hypothesis (judges enact their preferences, period), then the first question is irrelevant and the second is, in fact, dispositive.

    If you’re not so committed (i.e. you believe that those whose interpretations are different than yours honestly interpreted the text and arrived at a different conclusion) then the second is almost meaningless, because you will believe that the person is constrained by the text being interpreted.

    You are asking what “Due Process” means, but the realist DOESN’T CARE what it means. The realist will use it as a vehicle to enact his policy preferences (see e.g. Miranda v. Arizona). For the realist, judicial decisionmaking is merely a question of what the best OUTCOME is, as opposed to the best interpretive method. The committed realist just doesn’t care.