Earlier today, I posted my thoughts about how to fix the Supreme Court nomination process, and I wrote:
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.
I also repeated the frequently stated epithet, “we’re all legal realists now.” Professor Larry Solum has taken issue with my argument:
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.
When I say that no judge is neutral or that ideology has some effect on judicial decisions, I’m not making the simplistic Jerome-Frank-style legal realist argument that all law is ideology and politics. Rather, I’m claiming that pure neutrality isn’t possible. Solum proposes a choice between (1) deliberately injecting preferences into law (instrumentalist) or (2) trying to act on the basis of widely-shared norms (neutrality). But this isn’t the choice I have in mind. I don’t think that judges should be purely instrumentalist. I think that neutrality is a laudable goal and judges should avoid overtly deciding on the basis of their ideology. So like Solum, I believe that (2) is the better choice, and I hope most judges strive for (2).
But it is also the case that ideology does play a strong influential role even in (2), and pure neutrality isn’t possible. This doesn’t mean that neutrality shouldn’t be a normative goal and that judges can be better or worse in this regard. But it does mean that judicial ideology matters, that it has an influence no matter how neutral a judge tries to be.
Rhetoric by judges that they’re “neutral” or being an “umpire” doesn’t seem to correlate particularly well to whether they are in fact really neutral or an umpire. It is easy to master the rhetoric of formalism, but the rhetoric is empty. So are the terms “activism” and “restraint.”
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.
One might say that it depends upon how one interprets the Constitution, and the method of interpretation can be independent of ideology. Perhaps, but I’m skeptical. So can one interpret the Constitution as a “living Constitution” free from any ideology? The interpretation depends upon an interpretation of history as well as teleological views about the future direction of the country. “Original intent” is also infused with ideology. Most interpretive methods aren’t free from ideology — they are chosen because of a certain worldview, and they often skew toward particular ideologies.
I agree with Solum that judges can “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.” But as we’ve seen from centuries of judicial practice on the U.S. Supreme Court, these norms don’t lead inexorably to one particular modality of Constitutional interpretation or to one particular outcome for many controversial issues. There’s a major conflict of norms in this country, and judges can choose between different sets of longstanding and widely-shared norms.
Justices as divergent as Brennan and Roberts can both claim that they’re following a set of norms and not injecting their own ideology into the mix. Both would likely say they’re not being a pure instrumentalist and are interpreting the Constitution in good faith based on widely-shared norms about the best way to understand its meaning. But their ideologies matter. The way they see the Constitution, the way they interpret it, the way they approach cases — all of these are profoundly influenced by their substantive values.
So as Solum says, judges can deliberately inject their own preferences into law or attempt to avoid doing so by following widely-shared norms, but I think that the latter choice is what most judges think they’re doing and strive to do. And that’s good. But because the norms are so contested in many areas, because justices as widely divergent as Brennan and Roberts both claim to be faithful to the meaning of the Constitution, ideology matters.
Originally Posted at Concurring Opinions
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This post was authored by Professor Daniel J. Solove, who through TeachPrivacy develops computer-based privacy training, data security training, HIPAA training, and many other forms of awareness training on privacy and security topics. Professor Solove also posts at his blog at LinkedIn. His blog has more than 1 million followers.