Tamanaha on The Realism of Judges Past: A Challenge to the Assumptions and Orientation of the 'Judicial Politics' Field

Brian Z. Tamanaha, St. John's University School of Law, has posted a new essay, The Realism of Judges Past: A Challenge to the Assumptions and Orientation of the 'Judicial Politics' Field. It was the 2007 Baker & Hostetler Lecture at Cleveland-Marshall College of Law, and is forthcoming in the Cleveland State Law Review. Here's the abstract:

Political scientists and law professors have produced a steady flow of social scientific studies of judicial decision making in the past decade, building upon an already sizable body of research on judging compiled since the 1960s. Virtually all of the studies have the same thrust: to demonstrate that politics infuses judicial decision making. Judges are “politicians in black robes,” political scientists believe, and they are determined to expose the person beneath the robe. Law professors, who joined this enterprise about ten years ago, tend to take the position that law matters more in judicial decision making than political scientists suggest, but many also see politics as playing a large role. Most judges, while acknowledging that their personal views come into play in certain limited contexts, insist that law determines the overwhelming bulk of their legal decisions.

This article will attempt to shake up the established terms of the debate by dispelling a belief that infects it: the belief that judges are deluded or disingenuous about the nature of judicial decision making. As one political scientist put it, “Judges usually speak and write with audiences in mind, and they ordinarily present themselves in a way that they think will be received favorably. Further, they do not always understand their goals fully, and they may mislead themselves as well as their audiences” Even scholars who generously credit judges with honesty about judging nonetheless assert that “judicial self-reporting . . . is unreliable.” This belief is reinforced by implausible statements like Justice Roberts' assertion that judging is like calling balls and strikes.

To counter this common belief, this article will demonstrate that judges have openly and frequently expressed consummately realistic views about law and judging from the late nineteenth century up through the 1960s (and the present). Judges have acknowledged that there are gaps and uncertainties in the law, that they must make choices, and that in certain (limited) contexts their personal views may influence their judicial decisions.

The persistent belief that judges are deluded or duplicitous about judging, I will argue, is tied to a myth that political scientists and law professors have long bought into: the notion that turn of the century judges believed in or espoused “mechanical jurisprudence.” The article will reveal the origins of this myth and show how it warped the orientation of political science studies of judging from the very outset. The article will also challenge a number of other common misperceptions among political scientists and law professors - arguing that Holmes and Cardozo were not pioneers or mavericks among judges in expressing realistic views of the law and judging, and arguing that the legal realists did not view judging as inevitably political.

When this complex combination of misperceptions is unraveled, studies of judging will appear in a different light, almost the opposite of how the findings are viewed by practitioners today. Rather than take each new study as an expose on how politics infuses judging, I will argue that perhaps the proper interpretation of these studies is that they are merely confirming what judges have been saying for many decades.