Academic journal article
By Ides, Allan
The Yale Law Journal , Vol. 103, No. 2
"The respondent in this case killed a 10-year-old child."(1) So states the first sentence of Justice White's dissent in Brewer v. Williams. White approached Brewer from the factual premise that a heinous crime had been committed, while the majority framed the case conceptually, as presenting a "right to counsel" issue. It is this distinction between fact and concept, between underlying transaction and doctrine, that provides critical insight into the jurisprudence of Justice Byron White. White's philosophy cannot be pinned to a single point on any jurisprudential spectrum: conservative to liberal, activist to strict constructionist, interpretivist to noninterpretivist. Nor do such terms as moderate, centrist, or swing vote adequately describe his role on the Supreme Court. Yet, White's jurisprudence is not a unpredictable nor as enigmatic as commentators have suggested.(2) His critics' frustration may arise from an assumption that the formality of law predominates over the transactions that give rise to legal controversies. Not too surprisingly, a jurisprudence that proceeds upon a different assumption may well appear unpredictable or enigmatic within the formal structure. But from a slightly different perspective--from the perspective of legal realism--such a transaction-oriented jurisprudence may appear more coherent.
Of course, I realize that by using the term "legal realism," I am entering a definitional thicket from which there may be no completely satisfactory exit. Exactly who the realists were as well as the specific content of their school of thought remains a matter of continuing debate.(3) I use the term to capture some of the salient elements that are generally recognized as part of the realist tradition. First, legal doctrine should arise from a clear understanding of how society actually functions. In other words, facts should precede doctrine, and not the converse. Second, lawyers and judges are not necessarily the best fact finders. In fact, to some extent lawyers and judges should be mistrusted as both self-interested and idiosyncratic. Third, and perhaps somewhat incongruously, experts in social science and empirical research will provide the necessary insights into how society functions. And finally, the evolutionary state of society and social institutions requires a government structure that can adapt to changing circumstances.(4) As such, my definition of legal realism also includes the underlying reformist attitude espoused by some traditional legal realists, of both the Progressive and the New Deal varieties.(5)
Just as the quotation from Brewer v. Williams elevates hard fact over legal concept, this Essay attempts to elevate what Justice White actually did (or attempted to do) over how a more formalist approach might define or categorize the various points in his career. Although the Essay often concentrates on selected doctrinal areas, the purpose is not to catalog doctrine but to examine Justice White's thinking about our political system and the judiciary's role within that system.(6) This reversal of priorities will provide insight into White's performance as a Justice as well as encourage an appreciation for the perspective from which that performance emanated, a perspective that was influenced by the aura of legal realism and policy science that pervaded Yale Law School while White was a student there.(7)
Speaking more generally, the Essay attempts to show that formal distinctions between doctrines are not, ultimately, distinctions of substance, but of organizational convenience. For example, the separation of powers and the protection of fundamental rights are merely different aspects of the same basic problem regarding the nature and function of our political system. Yet our lack of intellectual dexterity relegates us to draw boundaries that facilitate discussion. At some point, however, the artificiality of these boundaries ought to become apparent. …