Once upon a time . . .the answer

[Michael McConnell]

Elizabeth Dale writes:

Solomon's piece ... doesn't necessarily clear up when, or whether, judges
and
justices began to feel free to claim that they could or should use the
courts to advance the aims of a party, rather than, say, enforce an
abstract rule of law.

To which I have two reactions. First, it is not fair to contrast advancing
"the aims of a party" (which no honorable and conscientious judge would
admit to doing) with enforcing "an abstract rule of law."  That is a straw
man. (Conservatives are conservatives because they adhere to a particular
vision of fairness and justice, not because they are members of a "party,"
like the Federalist Society -- and the same thing is true of progressives.
There are opportunists in both camps, of course, but I do not think the
Radin letter is really about that phenomenon.) The interesting question is
when, and to what extent, judges decide cases according to their own view of
justice and fairness, as opposed to following rules laid down by others.

My second reaction is to point out that legal realists said -- in effect --
that there is no difference between the two, other than intellectual
honesty. The idea that judges are following the rules laid down, they say,
is a myth. From a legal realist point of view, Elizabeth's question is
unintelligible.

That is why I am not a legal realist: Apparently like Elizabeth, I think
judges can, and should,  be constrained by the decisions made by others,
though I am not naive enough to think that those authorities resolve 100% of
the cases 100% of the time. Malla Pollack is probably right that this is an
aspiration, a reach that is beyond the grasp, but it is nonetheless a
valuable aspiration -- "else what's a heaven for?". My aversion to legal
realism is grounded in the concern that by debunking the aspiration, it
liberates judges to collapse the categories of law and politics, and results
in more political judging. Of course, most people only object to political
judging when they disagree with the politics, which is why indignant
leftwing denunciations of supposed conservative judicial activism and
political judging, like the Radin letter, are so amusing.


Michael W. McConnell
University of Utah College of Law
332 S. 1400 East Room 102
Salt Lake City, UT 84112