In this regard, consider two interesting pieces one by Tom Grey and the other by Joe Isenbergh, both available on SSRN. Joe's piece is titled "Activists Vote Twice" (you can download by clicking on the title), and it argues that strategic considerations lead formalist (Isenbergh uses the term "neutralist") judges to become activists. His stunning example is a two judge court, with a coin-toss resolving ties. One judge is an an activist; the other judge is a formalist. The two judges also disagree about ideology, i.e., preferred policy outcomes. The acitivst judge wins when the formalist agrees on formalist grounds. The activist judge wins half the time when formalist judge disagrees on formalist judge--because half the time, the coin comes up heads. Won't the formalist judge get fed up with this situation and begin to vote her ideology? If the answer is no, I think it must be because it is possible for judges to internalize care for the rule of law as their own highest order preference. In the language of Virtue Jurisprudence, judges can acquire the virtue of justice. For my take on this, see my "Virtue Jurisprudence: A Virtue Centered Theory of Judging," forthcoming in Metaphilosophy.
Tom's paper is titled "The New Formalism" (click on the title). Tom's piece is a very thoughtful and sensitive analysis of neo-formalism as articulated by contemporary conservatives, and especially Antonin Scalia. Tom argues that this version of formalist combines four commitments: (1) Objectivisim, as Tom explains it, "At the most general level, formalists want law to be determinate -- to take the form of rules rather than open-ended standards." (2) Originalism, that is, the view that the constiution should be understood to conform to the original meaning, and hence rejection of the idea of a living constitution. (3) Textualism, especially as applied to statutory interpretation. (4) Conceptualism, by which Tom means that formalists "prefer to treat abstract categories like contract and tort as coherent structures of concepts and principles, rather than as bodies of sublegislation generated in the course of judicial dispute-resolution." The most interesting thing about Tom's paper is the elegant defense he offers of neo-formalism against the charge of internal inconsistency. Not that Tom is a neo-formalist; he ends by arguing (in my opinion, rather too quickly) for the proposition that realism can capture the good in neo-formalism. It was not that long ago that calling someone a formalist was an insult. Not anymore.