BEYOND THE FORMALIST-REALIST DIVIDE

Vol. 20 No. 5 (May, 2010) pp.199-204

BEYOND THE FORMALIST-REALIST DIVIDE: THE ROLE OF POLITICS IN JUDGING. Brian Z. Tamanaha. Princeton, N.J.: Princeton University Press, 2009. 252pp. Cloth. $70.00/£48.95. ISBN: 9780691142791. Paper. $24.95 /£16.95. ISBN : 9780691142807. eBook. $24.95. ISBN: 9781400831982.

Reviewed by Edward Rubin, University Professor of Law and Political Science, Vanderbilt University. Email: ed.rubin [at] vanderbilt.edu.

This is a challenging book. It is not challenging in the sense of being difficult to read. Brian Tamanaha advances his arguments coherently and energetically, he organizes them in an accessible, quasi-narrative sequence, and his writing is as clear as a bell. What is challenging about the book is that it undermines so many well accepted ideas on which both legal scholarship and political science scholarship about the judiciary are based. In particular, it upsets our conventional wisdom, or, in John Kenneth Galbraith’s terms, our vested interest in understanding, about the history of legal thought during the past hundred years, and about the significance of political science studies of judicial politics. Tamanaha is not a skeptic; in fact, his view of judicial decision making is genial and generally optimistic. Rather, he is a withering critic of the skeptical views that are central to so much scholarship about law. Not everyone who reads this book will agree with it, but anyone who wants to think seriously about law will need to read it.

This review will first discuss Tamanaha’s account of the schools of legal thought, specifically legal formalism and legal realism. It will then address his critique of the judicial politics literature, and it will conclude with a summary and analysis of the theory of judicial decision making that he offers in places of the ones that he critiques.

A. Schools of Legal Thought

Tamanaha’s story begins with legal formalism, the school of thought that, according to the standard account, prevailed during the period between the Civil War and the early part of the twentieth century. This account is a familiar one; formalist scholars and judges were so benighted as to believe that law is a comprehensive and autonomous system, that judges can derive their decisions by mechanistic or syllogistic logic from the general principles that it embodies, and that they therefore do not make law when confronted with a case of first impression, but rather use their mechanistic logic to find the answer that the principles necessarily prescribe. This naïve fantasy, according to the equally standard account, was then demolished by the legal realists of the 1920s and 30s, who realized that law is often indeterminate, that judges’ personal opinions and political views shape their decisions, and that they regularly deploy these views and opinions to make new law. But the realists’ insights are so devastating that judges find them unpalatable, or perhaps indigestible, and cling tightly to the formalist fantasy that they are [*200] discovering law, not making it, and that they rely on syllogistic deduction, not personal views or opinions. It is now the task of political scientists, specifically those who study “judicial politics,” to explode this myth and reveal, as Martin Shapiro (1994) declared in a seminal article, that “[c]ourts and judges always lie. Lying is in the nature of the judicial activity” (quoted at p.123).. They do so through studies that reveal strong correlations between the ideological predispositions of judges and the results they reach in politically salient cases. As a result, judicial politics scholars clarify and confirm the realist insight that judicial behavior is based on politics, not legal rules.

To challenge this well established account, Tamanaha relies on an apparently unusual methodology – he actually reads the work of the formalists and realists. In fact, he does not read any formalist work, but he reads the work of the judges and scholars who have been described as formalists, and he discovers that there were no formalists. As he demonstrates through extensive citation and quotation, none of the people who were saddled with this sobriquet believed the doctrines that have been so consistently ascribed to them. Instead, they fully recognized that law is often open-ended or indeterminate, and they were aware that they needed to deploy their judgment, experience and background understandings to address this situation. In one telling but typical passage, Tamanaha quotes Grant Gilmore’s (1977) characterization of the formalists as committed to the view that “courts never legislate – that the judicial function is merely to declare the law that already exists” (p.19).. He then proceeds to cite eight law review articles, ranging from 1870 to 1914, whose titles include the terms “judicial legislation” or “judge-made law” and which recognize the necessity and value of this process. He concludes with an 1894 statement from the president of the New York Bar – surely a reliable representative of the legal establishment in 1894 – that “the courts have indulged in judicial legislation for centuries” (p.19).

Unlike the formalists, who never referred to themselves as formalists, the realists did indeed describe themselves as such. But again relying on the technique of careful reading, Tamanaha discovers that, with one exception, they were not “realists” in the sense that the term has been passed down to us today. Most of the scholars and judges whom we identify as realists – Thurman Arnold, Benjamin Cardozo, Charles Clark, Felix Cohen, Walter Wheeler Cook, Karl Lewellyn – “believed in law and fervently labored to improve it” (p.94). They were judges, law reformers and legal educators who saw themselves as bringing the legal system into accord with modern times, not as undermining its legitimacy or influence. The exception is Jerome Frank (also a judge), whose book, LAW AND THE MODERN MIND (Frank, 1936) stated an extreme position that was not shared by other realists, but has been taken as emblematic of the entire school of thought by subsequent generations.

B. Political Science Studies of Judicial Decision Making

Tamanaha’s discoveries about the so-called “formalists” and the self-called “realists” not only undermine legal scholars’ standard understanding of their [*201] field’s history, in his view, but also undermine both the impact and the validity of the recent political science scholarship regarding the judiciary. He focuses on the field of “judicial politics,” specifically the judicial attitude studies of the last several decades and the still more recent strategic model of judicial decision making. To begin with, he argues, much of this scholarship has been fueled by political scientists’ desire to explode the myth that judges decide cases on the basis of the law and with no reference to external factors such as personal opinion and ideology. If there is such a myth, Tamanaha argues, it is not one to which judges and lawyers subscribe. They have recognized for a hundred and fifty years, at least, that the law is often uncertain and that judges, when confronting these uncertainties, decide cases on the basis of their own judgment, experience and perspective. They might, indeed, quote one of the maxims of Kipling’s jungle bear Baloo (“If ye find that the Bullock can toss you, or the heavy-browed Sambhur can gore; Ye need not stop work to inform us: we knew it ten seasons before”(Kipling, 1893, p.45)).

But Tamanaha goes on to argue that the judicial politics studies are not merely old hat, but a hat that does not fit. The basic problem is that the studies tend to treat the Supreme Court as typical or paradigmatic, whereas it is actually exceptional. The lower federal courts, including the Circuit Courts of Appeal, must take all the cases that are properly presented to them. In contrast, the Supreme Court has a jurisdiction that by law and practice has become almost entirely discretionary, designed to allow it to address controversial cases where the law is unsettled. If the Supreme Court were to take a case where the legal rule is already clearly established, it would not be doing its job (Perry, 1994).

Thus, the proportion of Supreme Court cases where the law is uncertain, and where judges are required to deploy their judgment, experience and perspective rather than following the law, is no indication of the proportion of cases decided by the lower federal courts where this same uncertainty prevails. Tamanaha reports (quite accurately in my view), that according to federal judges themselves, about 90% of the cases presented to them are entirely uncontroversial (p.144). In these cases, the judges maintain, there is no uncertainty about the law; virtually all federal judges, when presented with one of these cases, would reach exactly the same conclusion. Note that these are the very same judges who concede that there are some cases where law is uncertain, and that their views and opinions – their attitudes, if you like – play an important role when they decide cases of this sort. In other words, the judges are not reciting the formalist myth of syllogistic logic that judicial politics scholars claim that they believe. Nonetheless, they are rejecting those scholars’ basic conclusion that law never determines the result and that the ideology or opinions of the judges are invariably the decisive factor. When cases are not specially selected for their controversial character, when they are simply the general run of cases presented to the federal courts, they assert, the law is the controlling factor.

Tamanaha points out that the relatively rare studies of lower federal courts confirm that law, not ideology, controls the result in the majority of cases, while [*202] ideology plays a major role in the delimited number of cases where the law is uncertain and the level of political controversy is high. This is hardly surprising, he argues. Interviews with judges reveal that they generally want to do a good job and be well regarded by their colleagues. Even more importantly, they believe in the rule of law (a topic of Tamanaha’s 2004 book), a belief that is often stronger than their ideological reaction to the particular issue in the case at hand. But even after making these observations, judicial politics scholars regularly over-emphasize the role of ideology; under the continuing influence of the false belief that judges are formalists who assert that law rigorously controls all judicial decisions, they continue to regard any influence of ideology as a major refutation of judicial legitimacy (pp. 112-17).

C. How Judges Decide

Tamanaha devotes most of his book to critique, but he does end with his own theory of judicial decision making, which he calls balanced realism. In effect, his theory reiterates his description – most cases are uncontroversial, and are thus controlled by law, but the law is sometimes uncertain and judges must rely on their views, including their political views, in reaching a resolution. To quote from his conclusion, a balanced realism expects and understands “that judicial decisions frequently are consistent with and determined by the law,” but “the law is continuously being worked out by judges,” “that judges are sometimes confronted with what they consider ‘bad rules’ or ‘bad results,’” “that social factors and considerations play into judicial decision making in various ways,” and “that the bents of judges will influence their decisions in various ways that are not conscious or deliberate” (pp.187-95).

This is a reasonable approach, well supported by Tamanaha’s scrupulous and incisive analysis of our inherited misperceptions, but it is somewhat under-theorized. We are not told what model of cognition it is based on, how it operates in practice, or how it could be tested. Apart from these methodological concerns, there is a substantive question whether Tamanaha is too sanguine about role of law in legal decision making. While he is entirely correct in pointing out that judges want to carry out their role appropriately and effectively, that they want to be seen as good judges by colleagues and observers, and that they are committed to the rule of law, their judgments about the way to achieve all these goals can be shaped by ideological factors.

The fact that judges agree that nine out of ten lower court cases are non-controversial does not necessarily obviate the impact of ideology. To begin with, it is not quite fair to judicial politics scholars to include in this computation the many cases that turn on purely factual disputes. While ideology might affect these cases by causing judges to make biased assessments, that is simply not what these scholars are talking about. They are talking about the ways in which judges make law, and no one thinks they make law in cases where only facts are in dispute. Second, just because most judges agree on the result in a particular case does not necessarily mean that their decision is not influenced by ideology. It may be that, as members of the governing and economic elite, [*203] they almost all subscribe to certain ideological positions, such as the value of facilitating commerce and encouraging growth, the need to protect private property, the idea that crime is a matter of individual choice rather than social compulsion, and so forth. Finally, and perhaps most importantly, the relatively small number of cases that make new law may be the ones that count. Even members of Congress, who are obviously motivated by political concerns, enact many commemorative, hortatory and housekeeping measures without significant controversy, and willingly make deals on issues of only moderate significance. Their ideological commitments appear when they are debating major legislation – a small proportion of their total enactments, perhaps, but the ones that make a difference to the nation. Similarly, it may be true that the Supreme Court is atypical, but its impact on the law and on the nation is immense. And it may also be true that only one in ten lower court cases elicit ideological responses, but those are probably the cases that shape the law and affect the lives of people other than the litigants.

I would argue that Tamanaha’s insight about the motivations of judges can be combined with a greater recognition of their ideological commitments by means of discourse theory. Even in government settings where cynical self-interest is likely to be dominant, such as private meetings between lobbyists and sympathetic public officials, people tend to cast their arguments in public-oriented discourse. Judges who want to do a good job, earn respect and advance the rule of law will be particularly attuned to proper discourse, particularly when it is central to their professional identity. Thus, they will feel the need to translate their ideological commitments into legal doctrine, the appropriate discourse for a judicial decision. That means that in significant cases, they will strive to integrate their ideological reactions with recognizable doctrine. If they are unable to do, they will generally relinquish their commitment, however reluctantly, and decide the case in doctrinal terms (Feeley and Rubin, 1998). Thus, I would argue that ideology is a factor across the entire range of significant judicial interpretations of the law, as the judicial politics literature suggests, but I certainly agree with Tamanaha that it is not the only factor in the judicial decision making process.

All of this, however, addresses only a secondary point in BEYOND THE FORMALIST-REALIST DIVIDE. The main point of the book is not to advance a new theory of judicial decision making but to demonstrate that our conventional ideas about both legal formalism and legal realism are unfounded. Tamanaha does this brilliantly. His book will change the way we think about both formalism and realism, about the history of legal scholarship and about the empirical study of judicial decision making.

REFERENCES:

Feeley, Malcolm and Edward Rubin. 1998. JUDICIAL POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA’S PRISONS. Cambridge, Eng.: Cambridge University Press.

Frank, Jerome. 1936. LAW AND THE MODERN MIND. New York: Tudor. [*204]

Kipling, Rudyard. 1925. THE TWO JUNGLE BOOKS. Garden City, N.Y.: Doubleday, Page & Co.

Gilmore, Grant. 1977. THE AGES OF AMERICAN LAW. New Haven, Conn.: Yale University Press.

Perry, H.W. 1994. DECIDING TO DECIDE: AGENDA SETTING IN THE UNITED STATES SUPREME COURT. Cambridge, Mass.: Harvard University Press.

Shapiro, Martin. 1994. “Judges as Liars.” HARVARD JOURNAL OF LAW & PUBLIC POLICY 17:155.

Tamanaha, Brian. 2004. ON THE RULE OF LAW: HISTORY, POLITICS, THEORY. Cambridge, Eng: Cambridge University Press.

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