Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Article excerpt

Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely "apply" the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.

Americans today live in an era in which nearly all observers of the legal process acknowledge the key role of ideology and political values in the decisionmaking processes of U.S. Supreme Court justices. As two of the most prominent analysts of the Supreme Court observed: ''Simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he was extremely liberal'' (Segal & Spaeth 2002:86).1 Even if some debate exists about the degree to which the policy choices of justices are constrained by legal and extralegal factors (e.g., Bailey & Maltzman 2008; Black & Owens 2009; Caldeira & Wright 1988; Richards & Kritzer 2002), no serious analyst would today contend that the decisions of the justices of the Supreme Court are independent of the personal ideologies of the judges. In this sense, legal realism has carried the day.2 Indeed, as Packer (2006:83) and others (e.g., Peller 1985; Singer 1988) have put it: ''We are all realists now.''3

Yet it is not uncommon to find judges who deny that their own ideological and policy preferences shape their decisions. Justice Antonin Scalia has stated, for instance, ''To hold a government Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it. . . . Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense'' (American Trucking Assns., Inc. v. Smith 1990, 496 U.S. 167, 201; (Scalia concurrence). 4 During her confirmation hearings, Judge Sonia Sotomayor similarly described a process of judging quite at odds with the depiction of the legal realists, most likely reflecting a strategic decision by Judge Sotomayor and President Barack Obama's political advisors to advance the image of discretionless judging and judges who merely ''implement'' the law, in part in reaction to attacks on President Obama's comments about needing judges with ''empathy'' on the Supreme Court. Judge Sotomayor's description of judicial decisionmakingFin particular, her depiction of the process as one of mechanical jurisprudenceFset off some furious criticism by legal scholars (e.g., Mauro 2009). Some even accused her of lying (Dworkin 2009). Asking what can be done about judges misrepresenting their actual processes of decisionmaking, Dworkin answers: ''Nothing, I fear, until the idea that judges' personal convictions can and should play no role in their decisions loosens its grip not just on politicians but on the public at large'' (Dworkin 2009: http://www.nybooks.com/articles/archives/2009/sep/24/justicesotomayor- the-unjust-hearings/? …