Excerpt
The upcoming judiciary committee hearings on the nomination of Elena Kagan to be an associate justice of the Supreme Court will likely unfold under the shadow of Chief Justice John G. Roberts’ declaration (at his own hearing) that “judges are like umpires; umpires don’t make the rules, they apply them.” Kagan will probably be asked to pledge allegiance to this account of judging and repudiate its disreputable alternative — judges who make law, legislate from the bench and import their politics into precincts where they don’t belong.
In a new book, “Beyond the Formalist-Realist Divide: The Role of Politics in Judging,” Brian Z. Tamanaha first describes the opposition that has such a hold on the public’s imagination — on the one hand “self-applying legal rules,” on the other “judges pursuing their personal preferences beneath a veneer of legal rules” — and then debunks it. His argument is that although historians, legal theorists, political scientists and sometimes judges themselves have over time constructed a “standard chronicle” in which these two views of judging vie for supremacy, no one has ever been a genuine adherent of either: “No one thinks that law is autonomous and judging is mechanical deduction, and rare is the jurist who thinks that judges are engaged in the single minded pursuit of their personal preferences.”
Why then has what Tamanaha calls “this myth” managed to flourish? One answer is that it serves the ends of those who wish to accuse one another of bad judicial behavior. “Formalist” and “realist,” Tamanaha explains, are “insults” hurled at opponents who have reached a decision one strongly disagrees with. In addition, jurists sometimes identify themselves with one of the positions in order to avoid being associated with the imputed excesses of the other. What is often presented, rhetorically, as a hard and fast contrast is really, says Tamanaha, a matter of emphasis: those labeled “formalist” tend “to emphasize the reasons why and ways in which legal rules, texts, and precedents can and should control,” while their opponents “tend to emphasize the limitations of legal rules,” that is, the extent to which they “run out” when novel fact situations emerge, leaving a “gap” that must be filled by extra-legal considerations.
But these differences in emphasis, Tamanaha contends, “are neither deep enough nor sharp enough to maintain the formalist-realist antithesis.” The two sides in the theoretical debates “share a common ground that applies to the bulk of law and judging” and that common ground — which Tamanaha calls “balanced realism” — has as its content both “an awareness of the flaws, limitations and openness of law” (the realist side of things) and an “understanding that legal rules nonetheless work, that judges abide by and apply the law, that there are practice-related, social and institutional factors that constrain judges” (the formalist side of things).
“Balanced realism” is not a method; Tamanaha is not recommending it; he offers it as a description of what is always going on, notwithstanding what jurists and commentators say in their more polemical moods. And not only is it always going on; it goes on necessarily because the “pure” positions of which balanced realism is an amalgam could not be realized by any human agent. “It is not possible,” says Tamanaha, “to be a formalist,” someone who “just” follows the rules. And, I would add, it is equally impossible to be a realist, someone one who “just” follows his or her (usually political) inclinations.
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