The question is framed in a loaded fashion assuming that the Constitution must be updated , but the high affirmative response implies general acceptance of the proposition that judging involves flexibility.
At the broadest level, this includes political and moral principles; at the mundane level, this contains beliefs on important matters. Kahan et al. Scott v. Harris and the Perils of Cognitive Illiberalism, Harv. Judges are influenced by these background views when dealing with open-ended legal standards like the balancing test, fairness, reasonableness, and the best interest of the child, as well as the contexts in which the law accords discretion to a judge. Kim, Lower Court Discretion, 82 N.
These influences affect the policy choices judges make in the course of interpretation, as described above. When the law runs out, when equally plausible alternative interpretations of a set of legal provisions point to different outcomes, or when applicable legal provisions conflict, a judge must draw from background ideological views if any answer is to be given.
Miller, Judicial Preference, 44 Hous. Ideological influences operate in two qualitatively distinct ways—the first relating to human decision making and the second to legal factors—neither of which can be entirely eliminated. In the former respect, human perception, judgment, and reasoning are always subject to cognitive influences—ideology—and judging is no exception. Much of the influence is subconscious; judges can sometimes become aware of such influences and strive to overcome them, but these influences are a normal aspect of human cognition.
Any legal system with human judges must accept a certain level of ideological influence in this form—to insist otherwise is to demand the impossible. The latter respect, relating to legal factors, is also, to some extent, inevitable. Sometimes the applicable law requires the judge to determine matters that involve judgment as with fairness or reasonableness standards , or sometimes no decision can be issued without such resort as when no clear legal answer exists.
A duty is imposed on judges to render a decision regardless of gaps, ambiguities, inconsistencies, or uncertainties in the law. Although the inherent limitations of human reasoning, legal rules and standards, and law allow ideological influences to seep into judicial decisions, these factors are not so pervasive or vicious that they defeat rule-bound decision making. To the contrary, most of the time, the implications of most legal rules are clear, and judges understand and apply them in a similar fashion regardless of ideological influences.
Ideology matters, albeit relatively little, as many quantitative studies of judging have found. Politics in Controversial Issues Another common occurrence involving politics and courts is when judges step into the middle of major contested political issues of the day—issues that many people believe elected representatives should decide, rather than unelected judges. On health care reform, gay marriage, campaign finance restrictions, affirmative action, environmental regulation, and many other subjects, courts have a major say in what our polity can and cannot do.
The rise of cause litigation since the s has brought to courts a constant supply of legal actions to advance controversial causes. Virtually every notable piece of legislation and administrative action must run a gauntlet of legal challenges brought by those who oppose it. Kagan, Adversarial Legalism: The American Way of Law 13—14 discussing how, in the American legal system, all major policy issues eventually become judicial issues litigated by competing interests. When the populace is closely divided on an issue with emotions running hot, any outcome will provoke a backlash in which the losing side charges the court with playing politics because both parties are convinced that the law stands firmly with them.
When the issues at stake are widely seen as a political matter, then almost by definition, the decision is political. For many observers, the legal justification supplied by the judge for the decision is largely beside the point.
Even people pleased with a decision might still object to the fact that judges have a decisive say over issues that, in a democracy, ought to be determined by politically accountable officials.
Politics in Judicial Appointments The fifth form of judicial politics is the prominent role ideological considerations play in federal and state judicial appointments. For most of the history of the nation, federal judicial appointments were a matter of patronage. Not anymore. Starting with Ronald Reagan, presidents have screened judicial appointees for their ideological views. Democratic and Republican senators also carefully vet nominees, using filibusters and lengthy delays to derail candidates who are politically unpalatable.
Similarly, in the past two decades, state judicial elections, once sleepy affairs, have become highly political and costly, with millions of dollars spent on state supreme court judges—the money flowing in from political opponents and supporters. The politicization of judicial appointments is in full swing and getting worse. First, judges are a part of the political apparatus of government. Second, judges make public policy in the course of developing the common law and when interpreting statutes and the Constitution.
Third, the background ideological views of judges influence how they perceive the facts, interpret the law, apply standards, fill in gaps and resolve contradictions, choose an answer from among equally plausible decisions, pick a theory of interpretation, think about justice, and decide policy questions.
Fourth, judges sometimes render decisions that affect the shape and outcome of major political issues of the day. Fifth, screening judges for their political views almost necessarily follows from the above.
All five senses of politics, furthermore, are magnified at the level of the Supreme Court. It is the titular head of the legal—political apparatus of government, it makes public-policy judgments though fewer in volume than appellate courts , it has the highest relative proportion of open-ended cases in the federal judicial hierarchy, and it takes up many highly salient political issues.
For all these reasons, Supreme Court appointees are subjected to careful ideological screening and extremely political confirmation proceedings. Why Smith Is Wrong and His View Destructive A hard-nosed view of matters seemingly pushes us in the direction of Smith, the polemicist who argues that the rule of law is a myth and that the smart move is to appoint judges who have no qualms about achieving desired conservative outcomes, exploiting legal indeterminacy or twisting the law, if necessary, to get there.
Differentiating Between Good-Faith and Bad-Faith Judging The response to Smith lies in drawing out the implications of the difference between good-faith and bad-faith judging. When ideology has an influence in the two ways set forth above coloring human cognition and filling in open legal questions , judges deciding in good faith are not aggressively seeking to implement their political views in the law, as Smith advocates, but rather are striving to satisfy their judicial duty to decide cases in a neutral fashion as required by the law.
Ideology comes through, owing to limitations in human reasoning and openness in the law, while judges do the best they can to deliver rule-bound decisions despite these limitations.
Things would be very different if judges dropped the effort to be bound by the law and purposefully twisted the law whenever necessary to achieve preferred political outcomes.
That is bad-faith judging. If all judges did this, there would be greater uncertainty and variation in legal decisions, reducing predictability in the law. A world of difference—the fundamental line that separates law and politics—exists between ideological influences that subconsciously shape decision making and inform open-ended legal judgments, and conscious manipulation of legal rules for political ends. This distinction helps avoid a major source of potential confusion in the literature.
Partisanship, in the judicial context, means improperly favoring one side over the other in a given action. But that is absurd and empties the word of meaning. Continuing with this analysis, because all human decision making, judging included, is subject to cognitive influences, it makes no sense to charge that an ideologically colored decision is partisan on that basis alone, for that would apply a standard nigh impossible to meet. Cognitive influences cannot be entirely eradicated although a judge can sometimes be made aware of them and can, through a conscious effort, shake free of some of their influence.
But a truly partisan judge is one who decides in bad faith. In sum, ideological influence does not equal partisanship. Judges do not ascend to the bench tabula rasa, wiped free of their moral, political, and economic views blank slates would be incapable of rendering judgments of any kind. In this sense, they indeed retain their ideological attachments.
But that is not partisanship. Partisanship is what Smith proposes: that judges decide cases with a conscious conservative or liberal agenda driving their legal analyses. They all share a common quality: judges themselves are not primarily responsible for each of the ways politics make their way into judging. First, judges cannot be condemned for the fact that the court is part of the political apparatus of government.
Second, judges make public-policy decisions because the legal tasks they handle call for it. Third, ideology colors all human perception and decision making, and the law regularly presents uncertain or open questions that must be answered. Fourth, judges decide politically charged issues because such cases are brought to them by others.
Fifth, it is others, not the judges themselves, who insist upon using ideological litmus tests to screen judicial candidates. As for the third sense, we cannot berate judges or accuse them of violating their legal role because they suffer from human limitations and make decisions that the law does not answer on its own.
On the fourth sense, we can be troubled by the outsized role judges have come to play in political affairs, yet recognize that these cases are put upon them although judges should be careful to restrict the extent to which their decisions impinge upon political questions.
On the fifth sense, candidates for judicial office deserve our sympathy for being subjected to personal scrutiny and distortion to an extent that few people in public employment must endure. Every discussion of politics in judging must start with an awareness that none of the five senses of politics are routine or pervasive aspects of judging.
They are most present at the highest level of judging but far less so at lower court levels. The failure of the Post article to note this when discussing the make up of federal appellate courts made it more misleading than informative. The meaning and application of legal rules are clear most of the time; public-policy decisions are infrequent; judges come to the same legal conclusion a substantial portion of the time regardless of differences in their political ideology; and after the glare of appointments and elections, they work in relative obscurity, mostly dealing with mundane or technical legal issues, except for the occasional burst of media attention that accompanies a controversial decision.
Judging is a structured practice that takes place within legal institutions through the medium of legal materials. All political influences on judging—all public-policy products of judging—are subject to and filtered by this legal milieu.
The decision-making output of judges is distinctively legal, notwithstanding these five aspects of politics, and this legal quality makes the legal results generally predictable by lawyers. This is not to deny that some legal decisions, by some judges, some of the time, are thoroughly political, but examples of bad-faith judging are infrequent and atypical.
Even on supreme courts, where political factors have the greatest play, judges render decisions in contexts thickly structured by the law. Doubters of law and judging—those who harp on legal indeterminacy and scoff at assertions of the high degree of legal efficacy 93 See, e.
Whoever has an employment contract, rents or buys an apartment, takes out a loan or uses a credit card, purchases medical insurance, contributes to a pension fund, gets a divorce, makes a will, gets into an automobile accident, or robs a bank, will quickly learn, when things go badly, that a great deal of the law is relatively straightforward and will be applied by judges as written.
This predictability, combined with the expense of legal proceedings, explains why the vast majority of situations are resolved without ever going to trial.
Conclusion Politics do matter in judging, as political scientists and Mark Smith insist, so the question remains how the role of politics in judging should be understood.
All five political aspects are givens of contemporary judging: the first, second, and third are, for different reasons, inherent to judging; the fourth and fifth have become entrenched in our system and are unlikely to diminish. Judges cannot be entirely free of politics in any of these senses.
What judges can do is decide cases in good faith according to the law in a nonpartisan fashion. Under this standard, a judge whose decision is subject to background political influences can still be an impartial, nonpartisan judge, as long as the judge does her best to render a decision based upon the law without consciously favoring one side or pursuing a particular objective.
This explains what might appear to be a contradictory set of beliefs about judging: [J]udges at every level routinely present their decisions as being objective and fair, and a large majority of the public accepts the judicial displays of evenhandedness as true. This belief in impartiality is supported by scholarship that shows the judicial process to be infused with legal principle. Clearly, judicial impartiality is a central component of judicial legitimacy. And yet, in addition to believing that judges are impartial arbiters, a large majority of the public also believes that judicial decisionmaking across the board is influenced by political preference.
This belief is supported by scholarship that shows the judicial process to be permeated by political claims and commitments. There is nothing mysterious or inconsistent about this juxtaposition of beliefs and research findings about judging. A judge who consciously strives to be impartial and to issue the correct legal decision satisfies her judicial obligation to decide in accordance with the law in the only way this can be humanly achieved, regardless of whether political views color the opinion.
Justices Scalia and Thomas are not necessarily being improperly political just because their decisions align with their political views a substantial proportion of the time. Willard Van Orman Quine was certainly the greatest analytic philosopher of the second half of the twentieth century. Unlike many who conclude in Quine s favour, Gaudet adopts a critical and nuanced approach to Quine s texts, showing that Quine sometimes changed his positions and was not always as clear and consistent as many assume.
Quine on Meaning: The Indeterminacy of Translation. Indeterminacy debate in legal theory - Wikipedia. I n his! Quine put forward the thesis of the Inscrutability of Reference. Free Online Library: Some realism about legal certainty in the globalization of the rule of law. Drawing on philosophical pragmatism, Tamanaha formulates a framework for a realistic approach to socio-legal theory. The strengths of this approach are contrasted with that of the major schools of socio-legal theory by application to core issues in this area.
Thus Tamanaha explores theproblematic state of socio-legal studies, the relationship between behaviour and meaning, the notion of legal. This thesis has been submitted in fulfilment of the requirements The indeterminacy thesis emerged as a far-left reply to Ronald Dworkin s right answer thesis. In its strongest form it is an extreme version of legal realism. It argues that nothing is law until it has been promulgated by an official - either a judge or the legislature.
In this book Edward Beckersets out to interpret and explain these doctrines. Issuu is a digital publishing platform that makes it simple to publish magazines, catalogs, newspapers, books, and more online.
Uncertainty about what the essence of the rule of law actually. Leiter indeterminacy in the precedents,27 and that judges did not rigidly adhere. New York: In the text and footnotes of this article five books are abbreviated as follows: Brian argument of RSLTas follows: "My thesis is that the role of realistic socio-legal theory in the or "the radical indeterminacy of rules" have consistently. Legal Theory Lexicon: Legal Realism - lsolum.
Realistic Socio-legal Theory - Google Books. Ken Gemes, The indeterminacy thesis reformulated - PhilPapers. The jurisprudence of the national and international human rights courts attempts to suture this normative indeterminacy. It is their at least partial indeterminacy that would allow them to be put alongside other discourses and be changed A Discussion of Critical Legal Studies Claim of Legal.
Balkinization: Jan Deutsch: An Appreciation. The strong version of the indeterminacy thesis is demonstrably false, but several weak versions of the thesis are true but lack the radical implications of strong indeterminacy. The strong. Tamanaha, supra note 10, at 3. Measuring Inconsistency, Indeterminacy, and Error. This article discusses the apparent contradiction between this contention and the fact that the outcome of many legal disputes can be predicted. Secularization, Legal Indeterminacy, and Habermas.
Some realism about legal certainty in the globalization. In the subject multiplies, issuing an outpouring of books and articles. Brian Z. In this book I examine various forms of indeterminacy in the law and scrutinize i. In particular, I analyze the advantages and disadvantages of indeterminacy in the wording of laws, contracts, and verdicts.
A group blog on constitutional law, theory, and politics. At some point in the seminar the light went on in my head. As I came to interpret the conversations in the seminar, Professor Katz was defending the proposition that the kinds of clinical judgments trained professionals reached embody a distinctive — and perhaps ineffable — form of knowledge, and that those clinical judgments.
The substance of the CLS critique, developed in a plethora of law review articles and books since , can be reduced into two related propositions: the indeterminacy thesis and the ideology thesis.
The indeterminacy thesis claims that law is internally and externally inconsistent 5 whilst the ideology thesis claims that law is ideological. Unsuccessfully attempted to deny legal indeterminacy. For instance, Ronald Dworkin has remained committed to his Right Answer Thesis-there is a right answer in hard cases, except in extremely rare or exotic oneseven though his interpretive theory of law has been shown to make the entire system of law indeterminate.
Indeterminacy is a composing approach in which some aspects of a musical work are left open to chance or to the interpreter s free choice. John Cage, a pioneer of indeterminacy, defined it as the ability of a piece to be performed in substantially different ways The earliest significant use of music indeterminacy features is found in many of the compositions of American composer Charles.
It distinguishes Quine s two principal arguments for the thesis: the famous gavagai argument of Word and Object, and the argument from the underdetermination of empirical theory by data emphasized in On the reasons for the indeterminacy of translation , and lays out the essentials of the former argument. Versions of the so-called 'indeterminacy thesis', according to which, broadly 14 BZ Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in fact that they believe the law in books does not constrain judges — without.
These issues are tackled in a clear and concise fashion whilearticulating a social theory of law that draws equally from legal theory and socio-legal theory.This is not to deny that some legal decisions, by some judges, some of the time, are thoroughly political, but examples of bad-faith judging are infrequent and atypical. That would spell the demise of the law. The rule of law works despite ideological influences precisely because judges do their utmost to fulfill their duty to abide by the law. Conservatives who decry judicial indeterminacy and insist upon paper adherence to the rule of law are fools pining for a thesis, he implies. That kind of judicial decision making would breach the mean it in this sense, Shapiro claims. This Essay explores several core meanings of judicial politics to help identify what is, and what is not, inappropriate about politics in the context of judging.
This book explores the history, politics, and theory surrounding the rule of law ideal, beginning with classical Greek and Roman ideas, elaborating on medieval contributions to the rule of law, and articulating the role played by the rule of law in liberal theory. Brian Z Tamanaha -- This book attempts to identify and develop foundations for the social scientific study of law in the age of anti-foundationalism. Conservatives who decry judicial activism and insist upon judicial adherence to the rule of law are fools pining for a myth, he implies.
Tamanaha accuses legislators, judges, socio-legal scholars, and particularly legal scholars of ignoring-indeed. Judges do not ascend to the bench tabula rasa, wiped free of their moral, political, and economic views blank slates would be incapable of rendering judgments of any kind. Brian Z Tamanaha -- This book attempts to identify and develop foundations for the social scientific study of law in the age of anti-foundationalism. Liberals who hear his message might take the same advice to heart, albeit in the opposite political direction.
As a result, it is only necessary to give a brief account of the historical background of legal positivism at a later stage in the dissertation. Politics in Judicial Appointments The fifth form of judicial politics is the prominent role ideological considerations play in federal and state judicial appointments. These views raise a question that returns us to the Times editorial quoted at the outset of this Essay 55 See supra note 1 and accompanying text. The decision-making output of judges is distinctively legal, notwithstanding these five aspects of politics, and this legal quality makes the legal results generally predictable by lawyers. Ideology matters, albeit relatively little, as many quantitative studies of judging have found.
There is more to this picture, however. Kahan et al. We must disabuse ourselves of myths about the rule of law and apolitical judging, urges Smith. In Advice and Consent, two leading researchers, Lee Epstein and Jeffrey Segal, assert: Presidents, senators, and interest groups alike realize that the judges themselves are political.
Balkinization: Jan Deutsch: An Appreciation. They are most present at the highest level of judging but far less so at lower court levels. The New York Times recently ran an editorial titled Politics and the Court sharply criticizing Justices Antonin Scalia and Clarence Thomas for trampling the line between law and politics. Scott v. The strong version of the indeterminacy thesis is demonstrably false, but several weak versions of the thesis are true but lack the radical implications of strong indeterminacy.
Constant reinforcements of the view that judging is political are found in news reports that highlight evidently political splits between Justices in high-profile cases, 39 See, e. As will become more evident in Part IV, Habermas does not see the discourse of application as mechanical, but he rejects the conclu- sion that recognizing legal indeterminacy puts into question the separation of law from politics. On health care reform, gay marriage, campaign finance restrictions, affirmative action, environmental regulation, and many other subjects, courts have a major say in what our polity can and cannot do. As for the third sense, we cannot berate judges or accuse them of violating their legal role because they suffer from human limitations and make decisions that the law does not answer on its own. Sutton, A Review of Richard A.
To the contrary, most of the time, the implications of most legal rules are clear, and judges understand and apply them in a similar fashion regardless of ideological influences. But a truly partisan judge is one who decides in bad faith. This seeming ambivalence is also prevalent in accounts by political scientists and legal scholars.