Beyond the Formalist-Realist Divide: The Role of Politics in Judging

Beyond the Formalist-Realist Divide: The Role of Politics in Judging

Beyond the Formalist-Realist Divide: The Role of Politics in Judging

Beyond the Formalist-Realist Divide: The Role of Politics in Judging

Excerpt

Perspectives on judging in the United States are dominated by a story about the formalists and the realists. From the 1870s through the 1920s—the heyday of legal formalism—lawyers and judges saw law as autonomous, comprehensive, logically ordered, and determinate and believed that judges engaged in pure mechanical deduction from this body of law to produce single correct outcomes. In the 1920s and 1930s, building upon the insights of Oliver Wendell Holmes, Roscoe Pound, and Benjamin Cardozo, the legal realists discredited legal formalism, demonstrating that the law is filled with gaps and contradictions, that the law is indeterminate, that there are exceptions for almost every legal rule or principle, and that legal principles and precedents can support different results. The realists argued that judges decide according to their personal preferences and then construct the legal analysis to justify the desired outcome.

This is the standard chronicle within legal circles as well as in political science, repeated numerous times by legal historians, political scientists who study courts, legal theorists, and others. A recent article on judging coauthored by two law professors and a federal judge begins:

How do judges judge? According to the formalists, judges apply
the governing law to the facts of a case in a logical, mechanical,
and deliberative way. For the formalists, the judicial system is a
“giant syllogism machine,” and the judge acts like a “highly
skilled mechanic.” Legal realism, on the other hand, represents a
sharp contrast…. For the realists, the judge “decides by feeling
and not by judgment; by 'hunching' and not by ratiocination”
and later uses deliberative faculties “not only to justify that intu
ition to himself, but to make it pass muster.”

A book on judging by three political scientists lays out the same account: “Until the twentieth century, most lawyers and scholars believed that judging was a mechanistic enterprise in which judges ap-

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