Check out Brian Tamanaha's post entitled Fellow Liberals: Be a "Legal Formalist," Join the Recovering Realists Club (Small Meetings Likely) over at Balkinization. Here is a taste:
After decades of ideological screening of judicial candidates, the bulk of judges on the Supreme Court and on lower federal courts are political conservatives. Liberals have responded to this by proposing ways to limit judicial power (abolish judicial review, establish age or term limits for judges, etc.), by lobbying against far right appointees during the confirmation process, and by hoping for electoral victories and a liberal President who will achieve a liberal makeover of the bench. Good luck!
Liberals should consider a different approach: retake the high road and insist that judges should rule according to the law. Rather than ridicule formalistic statements by conservative judges, let’s applaud them, then hold the judges to their avowed legal formalism, vociferously criticizing decisions that appear to be politically driven (remember Bush v Gore!), condemning violators as hypocrites and offenders of the rule of law. I fervently hope that Justices Scalia, Thomas, Roberts and Alito do not decide cases based upon their political views. Legal formalism stands against this as well.
For these reasons (which are not my reasons, as I will indicate momentarily), liberals should give legal formalism a serious second look. Were it not for the long association of formalism with conservatism, the influence of Legal Realism (ramped up by CLS) (supplemented by social scientific studies of ideology in judging), and the conservative bent of original meaning theory, the benefits of a rapprochement with legal formalism would be obvious to liberals. But few liberals have dedicated sustained efforts to developing a sound understanding of legal formalism, and the subject has not drawn much attention in jurisprudence (with the notable exception of old work by Frederick Schauer).
Tamanaha has some interesting comments on my recent article, The Supreme Court in Bondage: Constitutional Stare Decisis, Legal Formalism, and the Future of Unenumerated Rights, which argues for a neoformalist constitutional jurisprudence that incorporates a very strong doctrine of horizontal stare decisis, even for the Supreme Court.
