Magazine article The Nation

Return of Legal Realism

Magazine article The Nation

Return of Legal Realism

Article excerpt

The most enduring debate among twentieth-century legal analysts has been that between "legal realists" and those who believe in a reasonably strong version of "the rule of law." Though legal realism was often caricatured as reducing law to what the judge ate for breakfast, what it was really about was attacking the notion of the majestic impersonality of the judge, who was above politics. As Felix Frankfurter once put it, "as judges we are neither Jew nor Gentile, neither Catholic nor agnostic [and, presumably, neither Democrat nor Republican]. We owe equal attachment to the Constitution and are equally bound by our judicial obligations." Such claims were derided by realists like Yale law professor Fred Rodell, who viewed judges as no more than politicians in robes using legalistic mumbo-jumbo to write their politics into law. The argument has proceeded apace into the twenty-first century.

Almost everyone has accepted what might be termed a "soft" legal realism, one articulated by Frankfurter himself when he wrote in 1930 that "the controlling conceptions of the justices are their `idealized political pictures' of the existing social order." Thus it is a commonplace to refer to "conservative" and "liberal" wings of the Supreme Court as a shorthand reference to two quite different pictures painted by the two sides in cases involving race relations, the autonomy of states, the death penalty and the like. Though judges are "political," the politics are "high" rather than "low"; that is, decisions are based on ideology rather than a simple desire to help out one's political friends in the short run.

Thus the legal attack on racial gerrymandering led by "conservative" judges probably favors the interests of the Democratic Party, while its defense by "liberal" judges probably enhances the power of the Republican Party (because it "packs" overwhelmingly Democratic black voters into relatively few Congressional districts). Ideology seems to be a better explanation of the two positions than a desire to maximize the interests of one or the other party.

The Court's decision in Bush v. Gore, however, seems an exercise in low rather than high politics. How can one take seriously the majority's claims that their award of the presidency to Bush is based on their deep concern for safeguarding the fundamental values of equality? This majority has been infamous in recent years for relentlessly defending states' rights against the invocation of national legal or constitutional norms. …

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