Judges on Judging: Views from the Bench

By David M. O'Brien | Go to book overview

PART II
The Dynamics of the Judicial Process

"WE ARE very quiet here, but it is the quiet of a storm centre, as we all know." 1 Courts--and particularly the Supreme Court, as Justice Oliver Wendell Holmes observed--are indeed a storm center--facing the panoply of human problems, crowded dockets, and unrelenting work schedules. Moreover, in Justice Benjamin Cardozo's memorable words, "the great tides and currents which engulf the rest of men, do not turn aside in their course, and pass judges by." 2 Not surprisingly, then, as Judge Irving Kaufman has said:

Much tension accompanies the job of deciding the questions that all the rest of the social matrix has found too hard to answer . . . For the job of adjudication is to decide those questions according to particular rules and free of the influences that often affect decisions made outside the courtroom. We represent a third value that is not, and is trusted not to be, the prisoner of either wealth or popular prejudice. . . . Thus all the pleasing mummery in the courtroom, all our political insulation, indeed all our power, is designed to support a message: "Whichever side you're on, we are not on your side or your opponent's side; you must persuade us not that you've got money or that you've got votes, but that your cause is lawful and just."3

The political nature of courts and judges inexorably poses tensions and influences the process of judgment. Judges are political actors, and not surprisingly, their political presuppositions and policy orientations affect their decisions and the process of decision making. Still, what remains essential in judging, Justice Felix Frankfurter argued, is "first and foremost, humility and an understanding of the range of the problems and [ones] own inadequacy in dealing with them: distinterestedness . . . and allegiance to nothing except the effort to find [that] path through precedent, through policy,

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