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We all know that no judge is neutral or a mere umpire. We all know that the Supreme Court doesn’t divine some objectively true meaning of the Constitution or the laws it interprets. We all know that ideology has some effect on judicial decisions. And we all know that judges don’t find the law but make it.
The fact that “we’re all legal realists now” makes the Supreme Court Justice confirmation process a political morass. It has also resulted in presidents picking candidates for the Court who are young and who lack an extensive paper trail on hot-button issues. (Emphasis added)
But none of this implies that legal realism is inevitable or that judges must must "make the law". Legal systems vary in the degree to which they are "realist" or "formalist". Some legal systems are far more instrumentalist than the United States--in some legal systems outcomes are determined by bribes or directives from political operatives. Other legal systems are far more formalist than is the United States: most of the legal systems of western Europe fall into this category.
Law is a practice, an artefact of human culture. Judges can choose whether to decide cases on the basis of their own first-order normative beliefs about how cases should come out--or they can choose to adhere strictly to the directives contained in authoritative legal texts. Legal cultures can encourage and reward an instrumentalist approach to law, or they reinforce formalist practices and values. Judges can choose to exploit and expand legal underdeterminacy to create space for the expression of their own preferences through the law--or they can attempt to cabin the zones of underdeterminacy by acting on the basis of the widely shared and deeply held norms of the political communities that produce the laws.
Not all of us believe that "no judge is neutral." Not all of us believe that judges should make the law rather than apply or discover it. Not all of us are legal realists now.
Update: More from Solove here. Here is a short passage from his fine and illuminating post:
For many issues, it is unclear what the “neutral” or “formalist” position is. Take the right to privacy in the Constitution. Many claimed that it was the product of judicial ideology. They laughed at the idea of “penumbras” and argued that the Constitution doesn’t contain the word “privacy.” The so-called neutral position is to look at the text. But there are readings of the text that can fairly support the right to privacy. There are readings that cut against it. I’m not sure what being “neutral” or being an “umpire” means when it comes to this issue.
And of course, I agree with the general point. If we put aside the idea of "mechanical jurisprudence," the straw-man version of legal formalism invented by legal realists, then everyone can agree that some cases are "hard," in the sense that the legally correct solution may be difficult to identify and therefore can be the subject of reasonable disagreement. But this does not entail that judges should "make the law" in the sense that phrase has when we apply it to legislatures. More importantly, it does not apply that judges should view themselves as "making policy" or "choosing on the basis of their own views about political morality."
Solove says that "pure neutrality isn’t possible" and I can agree if by "pure," Solove means neutrality that that excludes all possible causal influence by politics, ideology, or value. Of course! But when judges they they will decide on the basis of the law alone or that their role is like that of an umpire, that are not claiming perfection--they are claiming that they will do their best to exclude politics, ideology, and their personal views about values from their decisions. Neither Justice Roberts nor Justice Sotomayor is a fool: they were not making foolish claims in their confirmation hearings. Nor does it seem plausible to accuse either Roberts or Sotomayor of belief in their own infallibility. Pure neutrality may not be possible, but that does not entail the conclusion that judges cannot make decisions that avoid conscious bias by relying on legal considerations "every step of the way."
Solove's position is quite nuanced, but I believe that his modest version of realism is not the only version that has entered public discourse about the Kagan nomination. Many realists believe in a version of instrumentalism that is quite different than Solove's. They believe that Kagan should enthusiastically endorse the view that she will rely on her own progressive values--even in cases in which they lead to results that would stretch the concept of a "fair" "reading of the text." They believe that judging both necessarily is and ought to be ideological: the only question is whether the Justices should wear their ideologies "on their sleeves" or "underneath their robes."
There is something real at stake in current debates about the confirmation process. If a nominee affirms an explicitly political and ideological approach to constitutional interpretation and construction and then is confirmed, then the politicization of the law will receive a stamp of democratic legitimacy. When nominees affirm their commitment to the rule of law, that undermines the case for an explicitly ideological approach to judging.
Another Update: More thoughtful posts by Paul Horwitz and Marc DeGirolami on Prawfs. For the record, I agree entirely with the substance of Paul's remarks, although I might express the ideas with a different emphasis. I find myself in almost total agreement with Marc.