A government of words: the social practice of judging in a rule-of-law system

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Content A GOVERNMENT OF WORDS: THE SOCIAL PRACTICE OF JUDGING IN A RULE-OF-LAW SYSTEM by Jason E. Whitehead A Dissertation Presented to the FACULTY OF THE GRADUATE SCHOOL UNIVERSITY OF SOUTHERN CALIFORNIA In Partial Fulfillment of the Requirements for the Degree DOCTOR OF PHILOSOPHY (POLITICAL SCIENCE) May 2007 Copyright 2007 Jason E. Whitehead ii Dedication To the memory of my grandparents, Sherman and Lilly Mae Lionel, who worked too hard, and died too early, in the hope that their children (and their children’s children) might one day thrive. iii Acknowledgments With a grateful heart, I would like to acknowledge some of the countless people who have taught, nurtured, and encouraged me along the way toward this significant milestone in my life. I have been blessed over the years with many great teachers, advisors, mentors, and academic supporters who have inspired and encouraged me: My dissertation chair, advisor and mentor, Dr. Howard Gillman, from whom I have learned so much about scholarship, teaching, and life in general; The late Dr. Edwin Roberts, my undergraduate mentor who taught me to love political theory, but died too soon to see its full fruition; Dr. Judith Grant, for guiding me on both ends of my academic career, both at CSULB and at USC; Dr. John W. Gates, my undergraduate debate coach and “big brother,” who, more than anyone else, taught me how to think critically; Dr. Jeb Barnes, for treating me as a colleague from the very beginning; Erwin Chemerinsky, from whom I learned much about teaching and counseling students with grace and humility; Dr. Michael Preston and Dr. Alison Renteln, for championing my cause all the way through graduate school; the USC Department of Political Science, chaired by Dr. Ann Crigler, for providing me with financial support; Jody Battles and Veronica Pete, for all their unacknowledged hard work behind the scenes; Dr. Charles Noble, Nancy St. Martin, and Amelia Marquez, who greatly encouraged me in the final days; The CSU Chancellor’s Doctoral Incentive Program, for providing much-needed funding during the final year; And my early iv teachers, who fanned my spark of learning into a roaring flame, including Mike and Ina Levin, Stan Caldwell, and Luellen Crooks. I would also like to thank all of my undergraduate and graduate students over the years, who have inspired and encouraged me by their own pursuit of knowledge and excellence, especially Dara Purvis, Gary Gomez, Kimi Clark, Jose Ramos, Jeff Brown, Mike Slocumb, Mariella Hernandez, and Judge Geraldine Mund (who also made some key introductions along the way). I am especially grateful to all the judges and I have known and worked for, who have taught me so much about judicial “good faith,” including Judge Jack Landau, Justice Susan Leeson, Judge Andrew Wistrich, Judge Carla Woehrle, and Judge Brian Quinn Robbins. I also need to thank all the federal and state judges who agreed to participate in this research. It is no cliché to say that this project would not have been possible without them. I am also thankful for my fellow law clerks have proven to be not only colleagues but great friends over the years: Liz Large, who decided to publish my first article, introduced me to my first judge, and greatly encouraged me over the years; Cecil Reniche-Smith, who always knew the answers and always believed I could do this; Lisa Scheff, who opened her heart and home and made a crucial introduction early on in the project; and David Munsey, who provided hours of philosophical guidance and humor. In the same vein, my fellow graduate students have provided a great deal of community support over the long haul, including: Linda Veazey, for all the great v conversations, Christine Jun, for inspiring me through her own intellectual growth, Jinee Lokaneeta, for her warm personality and good scholarly example, and Art Auerbach, for illustrating the virtues of hard work and consistency. I also want to thank everyone who has helped me on my spiritual journey in recent years, including Rev. Mark Sturgess, for showing me the possibility of a generous, yet faithful, orthodoxy, Steve Martin, for his example of patience and longsuffering, Monsignor Joe Brennan and Father Jim Bevacqua, for living out their faith with intelligence and integrity, Father Rolly Jardiniano, for spiritual guidance and steadfast friendship, Joy and Bruce Jones, and the Holy Trinity RCIA team and class, for helping me on my journey home, and Dr. Quin Crosbie, for leading me with great compassion and wisdom toward a more authentic existence. Many of my friends have become closer than family to me, and deserve much of the credit for any success I have achieved: Gus and Sharon Sartorius, for their joyful encouragement, which has meant so much in the last couple years of this project; All the members of my “second family,” especially Margie Evangelista, whose motherly pride and concern has filled up so much of the emptiness in my life; Mike Roth, who has become the brother I never had; and Sharyn Martinez, who has been one of my primary sources of comfort, wisdom, and joy throughout the years (I hope this doesn’t make me too “conceited”!). I would also like to thank my parents, Jack and Lorraine Whitehead, for encouraging me to read when I was young, for teaching me to work hard and not be vi satisfied until things are “done right,” and for always expecting that I would achieve something great. My sister, Kelly Martinez, has always been there with a hug and an understanding heart, even when life was at its worst. I also have a wonderful new family, who have always been proud of me no matter what career I have pursued. Their kindness, patience, and laughter have sustained and uplifted me when I needed it most, especially during the last few years of this dissertation: Chuck, Faith, Mike, Joanne, David, Kathy, Ryan, Mari, Matthew, Tony and Charles Cataldo, Chris, Paul, Phil and Karen McRae, Eric Migliaccio, and Linda, Tom, and Tim Parker. Thanks for believing in me! Finally, I want to thank my brave and beautiful wife, Donna. Although you are last on this list, you will always be first in my heart. No matter how powerful the words, they could never convey the depth of my love. You have saved my life countless times with your kindness and generosity of spirit. There is no doubt in my mind that I could not have accomplished this without you. “You make me want to be a better man.” vii Table of Contents Dedication ...................................................................................................................ii Acknowledgments .....................................................................................................iii List of Tables ..............................................................................................................x List of Figures............................................................................................................xi Abstract.....................................................................................................................xii INTRODUCTION:...........................................................................................................1 A. Judicial Decision Making and Rule-of-Law Skepticism.............................4 B. Reviving Support for the Rule of Law .........................................................8 C. Towards a New Approach.............................................................................9 CHAPTER ONE: ..........................................................................................................21 A. The Rule of Law as an External Constraint ..............................................23 B. The Rule of Law as an Internalized Value System ...................................34 1. The Attitude of “Feeling Bound”.............................................................35 2. Community Constraints on Judicial Decisions........................................38 CHAPTER TWO: .........................................................................................................44 A. From the Outside In: Behavioralism and Attitudinalism ........................45 B. From the Inside Out: Post-Behavioralism and New Institutionalism.....53 C. Two Versions of the Internal Account .......................................................57 1. Constitutive Scholarship ...........................................................................58 2. Instrumental Scholarship .........................................................................66 D. The Need for a More Internal Approach to Judicial Decision Making ..80 E. Further “Inside the Judicial Mind”: The Value of Judicial Interviews..82 F. Toward a Proper Investigation of Rule-of-Law Attitudes .......................94 G. Conclusion ....................................................................................................96 CHAPTER THREE:......................................................................................................99 A. The Concept of a “Social Practice” ..........................................................100 B. The Importance of Community ................................................................103 1. Theoretical Concepts...............................................................................103 2. Illustrations From Judicial Experience .................................................109 C. The Importance of Language....................................................................119 viii 1. Theoretical Concepts...............................................................................119 2. Illustrations From Judicial Experience .................................................125 D. The Importance of Virtue..........................................................................133 1. Theoretical Concepts...............................................................................133 2. Illustrations From Judicial Experience .................................................146 F. Only Words?...............................................................................................160 CHAPTER FOUR: ......................................................................................................171 A. A Typology of Judging...............................................................................172 B. A Methodological Overview......................................................................179 C. Answering the Critics ................................................................................185 CHAPTER FIVE: .......................................................................................................190 A. Formalist Judging ........................................................................................193 1. Community Influences..............................................................................194 2. Language Practices....................................................................................199 3. Formalist Virtues .......................................................................................204 B. Good-Faith Judging ...................................................................................215 1. Community Influences...............................................................................215 2. Language Practices....................................................................................242 3. Good-Faith Virtues ....................................................................................253 C. Conclusion: The Rule-of-Law Implications of Formalist and Good-Faith Judging ...........................................................................................274 CHAPTER SIX:..........................................................................................................277 A. Cynical Judging..........................................................................................279 1. Community Influences...............................................................................279 2. Language Practices....................................................................................292 3. Cynical Judicial Vices................................................................................297 B. Rogue Judging............................................................................................305 1. Community Influences...............................................................................305 2. Language Practices....................................................................................309 3. Rogue Judicial Vices..................................................................................310 C. Conclusion: The Rule-of-Law Implications of Cynical and Rogue Judging................................................................................................................315 CONCLUSION: ..........................................................................................................319 A. Summing Up ...............................................................................................319 B. Can We Trust the Words of Judges? .......................................................323 C. Where Do We Go From Here? .................................................................329 1. Recommendations for Policy Makers.....................................................329 2. Recommendations for Scholars..............................................................332 ix D. Whither the Rule of Law? .........................................................................334 REFERENCES............................................................................................................339 APPENDICES: Appendix A:........................................................................................................358 Appendix B:........................................................................................................359 Appendix C:........................................................................................................360 Appendix D:........................................................................................................361 x List of Tables Table 1: External and Internal Approaches to Judicial Decision Making .................79 Table 2: A Typology of Judging ..............................................................................173 Table 3: Court Breakdown.......................................................................................182 Table 4: Party Breakdown........................................................................................183 Table 5: Summary of Coded Data Pages (Formalist & Good-Faith).......................274 Table 6: Summary of Coded Data Pages (Cynical & Rogue)..................................315 Table 7: Summary of Coded Data Pages (All Types)..............................................320 xi List of Figures Figure 1: The Objective Theory of the Rule of Law..................................................34 Figure 2: The Subjective Theory of the Rule of Law ................................................42 Figure 3: A Social Practice Model...........................................................................159 Figure 4: Formalist Social Practice..........................................................................214 Figure 5: Good-Faith Social Practice.......................................................................273 Figure 6: Formalist and Good-Faith Attitudes.........................................................275 Figure 7: Cynical Social Practice.............................................................................304 Figure 8: Rogue Social Practice...............................................................................314 Figure 9: Cynical and Good-Faith Attitudes............................................................316 Figure 10: Summary of All Attitude Types .............................................................320 xii Abstract The “Rule of Law” is a crucial liberal democratic norm. However, scholars disagree about whether American political institutions satisfy this norm. Those who study American courts, including Critical Legal Studies and Attitudinalist scholars, contend that judges flout the rule of law by making political decisions. By contrast, New Institutionalist scholars argue that judicial decisions are motivated by legal attitudes, but they have not offered any systematic defense against rule-of-law skepticism. Moreover, all these scholars rely too much on external evidence of judicial activities, which do not provide much insight into internal motivations and attitudes. This dissertation contends that the rule of law does indeed prevail in American courts. First, I provide a theoretical reformulation of the rule of law. Tracing its history back to ancient and modern sources, I review the untenable traditional expectation that officials be externally constrained by clear and determinate legal rules. A more persuasive account focuses on the official’s internal subjective attitude of obligation toward the rules. Second, I construct a “social practice” model of rule-of-law judging. Building on New Institutionalist and post- positivist theory, I focus on three components of judging, essential in constructing rule-of-law attitudes: community influences, legal language, and judicial virtue. Based on this model, I construct a typology of judicial attitudes: Formalist and Good-Faith attitudes, which are consistent with the rule of law, and Cynical and xiii Rogue attitudes, which are inconsistent with this norm. Third, I illustrate the new model by investigating the attitudes of 24 state and federal appellate judges. Using a “depth-hermeneutic” approach designed to investigate the understandings and ideas that constitute the inner world of judges, I show that a large majority of judges I interviewed have Formalist or Good Faith attitudes. Even if the law is unclear or indeterminate, they still feel an obligation to subordinate their personal agendas to their best understanding of the law. I conclude that the rule of law should be seen as a workable norm, which can be observed in the thoughts and attitudes of judges and other governmental officials. 1 INTRODUCTION: THE “WAR OF WORDS” OVER JUDGING AND THE RULE OF LAW A definition of law which in effect denies the possibility of law since it denies the possibility of rules of general operation must contain within itself the seeds of fallacy and error. Analysis is useless if it destroys what it is intended to explain. Law and obedience to law are facts confirmed every day to us all in our experience of life. If the result of a definition is to make them seem to be illusions, so much the worse for the definition; we must enlarge it till it is broad enough to answer to realities. The outstanding truths of life, the great and unquestioned phenomena of society, are not to be argued away as myths and vagaries when they do not fit our little moulds. If necessary, we must remake the moulds. Justice Benjamin N. Cardozo The Nature of the Judicial Process (1921), p. 127. The notion of the “Rule of Law” is one of the hallmarks of liberal democracy (see, e.g., Tamanaha 2004, 4; see also Shklar 1964, 22) Some may still subscribe to the old canard that the rule of law requires a “government of laws, and not of men” (see, e.g., Marbury v. Madison, Cranch 137, 163 (1803); see also Michelman 1988, 1499-1503; Fallon 1997, 3). But this is problematic because of the different relationships between law and decision makers in different institutions. How can we say, for example, that a President, a member of the House of Representatives, and a Supreme Court justice are all equally governed by the same preexisting rules? Certainly, each political institution is governed by its own procedures and standard operating procedures, but these do not really meet the high standard set by Marshall’s magisterial formulation of a “government of laws.” Instead, what seems 2 to be required by that formulation is that all governmental decision makers be subject to a set of overarching rules or principles that constrain the exercise of their discretion. However, given the different orientations of decision makers in different political institutions toward these overarching rules and principles – the different constitutional roles, for example, of executives, legislators, and judges – the notion of a “government of laws, and not of men” must be recognized as much too simplistic to provide specific guidance about rule-of-law requirements. Sensing this difficulty, some have refocused the rule-of-law debate away from the notion that preexisting rules equally constrain decision makers in various governmental institutions and toward the obligation that decision makers act as faithful and fair agents of the relevant rules governing their particular institution. For example, some argue that the rule of law requires judges engage in fair and even- handed decision making (see Cooperrider 1961; Wilkinson 1989; see also U.S. v. Nixon, 418 U.S. 683, 708 (1974); Romer v. Evans, 116 S. Ct. 1620, 1628 (1996); Bush v. Gore, 121 S. Ct. 525, 542 (2000) (Stevens, J., dissenting)). More specifically, other scholars have focused on the distinctive role that courts play in carrying out the rule of law within the particular institutional space they occupy (Shapiro 1981, Feeley & Rubin 1998). Shapiro’s famous view of the rule of law, for example, requires that the simple consent of the conflicting parties be replaced by “law” and “office” (1981, 1-17). That is, according to Shapiro, the rule of law requires that judges cultivate a particular manner of decision making 3 characterized by reliance upon preexisting legal doctrine, combined with various institutional formalities, both of which serve to ensure the popular legitimacy of the court’s decisions (ibid.; see also, ibid., 26). According to Feeley and Rubin, the rule of law is a “complex, dynamic process” that is “socially embedded” in courts as political institutions (1998, 351). This process includes constrained judicial attitudes about legal doctrine, but also includes judicial attitudes about widely held “social norms” (ibid., 351-52). These attitudes about social norms must be “recognizably legal” and must conform to the “general trend” of other developments in that area of law in a way that persuades other judges (ibid., 355). This process still constrains judicial decision making, but in a more indirect manner than previously thought (ibid., 21-22, 207-11, 346-51). Thus, just like every other political institution, including administrative and legislative ones, judicial decisions must conform to certain norms that are specific to its institutional role and mission (ibid., 207-08, 358-59). Thus, following these scholars, it might be more appropriate to speak of “Rules of Law” appropriate to various governmental departments, rather than an overarching Rule of Law that applies equally to all. The task would then be to provide an account of what the judicial rule of law requires of judicial decision makers, as opposed to what the rule of law requires in general. What continues to stand in the way of such an account, however, is the prevalent attitude of contemporary skepticism about whether judicial decisions are 4 made in a way that is faithful to the rule of law, however formulated. For example, many question whether the language of the “rule of law” is a mere rhetorical flourish, designed to justify the exercise of political power (Fallon 1997, 2; Shklar 1987, 1). Put another way, many question whether, instead of having a “government of laws,” we really just have a “government of words.” Since the words themselves – both the words of the law itself, and the words of judges about their interpretation of those laws – have little correspondence to reality, these scholars conclude that the rule of law is largely a sham. The question of what motivates judges to decide cases the way they do thus goes to the heart of the larger question of whether the rule of law prevails in American politics. A. Judicial Decision Making and Rule-of-Law Skepticism The scholarly debate over judicial decision making has the potential to shed significant light on this issue. For example, there is still a strong minority of law professors in the Critical Legal Studies (CLS) tradition, influenced by radical Legal Realism as well as neo-Marxist critical theory and postmodern deconstructionism (see Standen 1986; Whitehead 1999; Litowitz 1997; Minda 1990). These “Crits” – whether in their earlier manifestation in the CLS movement, or in their later manifestations in Critical Race Theory or Critical Feminist Theory – are united in their conviction that it is impossible for judges to decide cases by merely consulting the relevant rules and principles. Because of the contestability and indeterminacy of legal rules and principles, the traditional notion of judges being faithful agents of 5 those rules and principles must be a myth: “If law is not determinate or neutral or a function of reason and logic rather than values and politics, government by law reduces to government by lawyers . . . . The extraordinary role played by law in our society and culture is hard to justify once the idealized model is recognized as mythic.” (Kairys 1998, 5-6; see also Kennedy 1997, 13-14). Leif Carter and Thomas Burke take a similar approach to legal reasoning in their book Reason in Law. In their view, judicial interpretations of legal rules and principles are post hoc justifications for decisions, not techniques for reaching that decision in the first place (2002, 7, 127-29). These justifications can be more or less persuasive depending on how well the judge performs the socially accepted role assigned them (ibid., 127-29). But they argue that any reliance on the law as a “technique for generating ‘right answers’” is outdated at best and dangerous at worst (ibid., 12; see also ibid., 8). According to all these critical scholars, the outlook for judging as a paragon of faithful adherence to preexisting rules is not promising. Similarly, in the social sciences, a whole generation of behavioralist researchers has staked its reputation on the idea that judicial neutrality by the Supreme Court in major political cases is a myth. In fact, Attitudinalism, the reigning social scientific model of judicial decision making at the United States Supreme Court, posits that individual political attitudes, instead of legal rules and precedents, provide the most compelling and parsimonious explanation of the Justices’ final votes on the merits. (Segal and Spaeth, 1993, 2002). Not content, 6 however, with this simple and elegant conclusion, the proponents of the Attitudinal model go further, challenging traditional notion of the rule of law as a myth: Insofar as judicial and Supreme Court policy making are concerned, mythology basically exists because judges play God with regard to the life, liberty, and property of those who appear before them. No matter the issue – trivial or earthshaking – the final decisions rest with a court. But mere mortals ought not engage in autotheistic activity. And so mythology is born. Judges are said not to have discretion in the matter of principles; they do not announce their decisions; it is, rather, the law or the constitution speaking through them that dictates the outcome . . . Judges, therefore, are objective, dispassionate, and impartial. To ensure that facts do not becloud the myth, we adopt an ostrich posture. (Segal and Spaeth 2002, 26). However, in a cruel ironic twist, Segal and Spaeth insist that they are officially agnostic about the true motivations of Supreme Court Justices (2002, 433- 34). What really matters, they claim, is not that judges consciously or unconsciously convince themselves that their motivation is a legal one. What matters is that judges make decisions that match their policy preferences. The rest is mere speculation. However, comments like the one quoted above belie this official agnosticism and seem to point toward a full-blown atheism toward the rule of law. As I will argue in Chapter Two, this ambiguity creates huge problems for attempts to accurately describe what judges are up to. On the one hand, if the argument is that judicial decisions correspond broadly to the judge’s political preferences, there are not many in a post-realist age who would disagree. On the other hand, however, if the conclusion drawn from this otherwise banal observation is that judges are not at the same time following their best understanding of law, then more work needs to be done to show that political decision making necessarily precludes legal decision 7 making. Indeed, as discussed below, it is one purpose of this dissertation to argue that this latter claim is unfounded. Moreover, this rule-of-law skepticism may have ramifications far beyond the narrow interests of the academic community. Critics of the earlier rule-of-law skepticism expressed by the CLS movement were outspoken about the societal and professional dangers of seeing judges as mere apologists of existing power relations (see Carrington 1984; Johnson 1984). Similarly, some social scientists have hinted at the underlying democratic danger of the statistical approach to judging eroding the public’s “complex, romantic, yet powerful engagement with law” as a “collective moral accomplishment” (Silbey 2004, 785, 786). More substantively, “[s]ome have argued that if we took seriously the behavioralists’ findings that decision making is ‘a reflection of the justices values’ rather than a faithful ‘rendering of constitutional or statutory language’ then ‘the inherent contradiction between policy making by non-elected, life term justices and representative government is heightened.’” (Gillman 2001, 497, quoting Adamany 1991, 12). Indeed, there is at least some good recent evidence suggesting that imputing less-than-noble motivations to judges might actually damage the public reputation of the courts to such an extent that citizens are less willing to utilize courts or comply with court rulings (see Benesh 2006; Scheb & Lyons 2001; Roberts & Stalens 1997; Tyler 1990; Tyler & Rasinki 1991). Thus, if they are concerned about the 8 perpetuation of the rule of law, scholars cannot afford to remain agnostic about the underlying motivations for judicial decisions. B. Reviving Support for the Rule of Law Perhaps sensing this danger, other academics have staged something of a palace revolt against extreme rule-of-law skepticism. These “legalists” have attempted in various ways to “bring the law back in” as an explanation for judicial decision making. (See Whittington 2000). Especially under the broad banners of “Post-Behavioralism” and “New Institutionalism,” leading scholars have posited that the devotion of judges to legal norms and values can actually provide a superior explanation of major cases and areas of law. (See Gillman 1993, 2001; Bussiere 1999, 1997; Gillman and Clayton 1999; Clayton and Gillman 1999). Among other things, this scholarship focuses on various ways to reconceptualize the relationship between law and judging, including: seeing law as a discursive practice (Whittington 2000, 621; Kahn 1999); seeing law as a sort of institutional mission (Whittington 2000, 622-23; Gillman 1999; Clayton and Gillman 1999; Gillman and Clayton 1999; Smith 1988); situating the Supreme Court within a larger political, social, and ideological system (Whittington 2000, 621; Smith 1988, 95); and treating law as a framework of reasonable expectations for other actors, or as a means of securing public legitimacy (see Epstein and Knight 1998, 12, 164, 172, 177; Maltzmann, Spriggs & Wahlbeck 2000, 5-6). 9 In an influential article, Rogers M. Smith argues that the distinctive contribution of New Institutionalism is a focus on “the importance of the interrelationship between human institutions – or structures – and the decisions and actions of political actors” (Smith 1988, 91). Howard Gillman has fleshed this out a bit further. He points out that many New Institutionalists oppose the old positivist notion of law as a mechanical external constraint with a notion of legal interpretation as a state of mind internal to a social “practice.” This practice is constructed in part by the judge’s sense of obligation to think or act in certain ways influenced by her legal training and experience, sense of professional obligation, and understanding of her purpose, role, or mission (Gillman 2001, 486 and 1999, 78-86; Tamanaha 1996, 183). C. Towards a New Approach These opposing sets of scholars are beset by two problems that hamper their ability to speak adequately to the larger issue of whether judges uphold the rule of law. First, at a conceptual level, they typically limit themselves to the narrow question of how exactly politics or law influences judicial decisions. They rarely engage the broader question of what this might mean for the rule of law. This makes the debate over judicial decision making seem like an ivory-tower intellectual exercise, disconnected from real political controversies. In order for legalists to take on this task, however, they must first examine their own assumptions about the requirements of the rule of law. 10 Therefore, it is one purpose of this dissertation to clarify what is required by judges in a rule-of-law system. The traditional account of the rule of law, especially in the United States, presents an overly simplistic formalist view of how law should affect judges. According to this formalist view, the rule of law requires judges to be externally constrained by objective rules and principles (see Grey 1983). This view of law is reminiscent of the legal positivism of H.L.A. Hart (1961, 1958). Following Bentham and Austin, Hart posited an inherent separation between what the law “is” and what the law “ought to be” (1958, 593-600). He allowed that judges often had to use intelligent discretion in areas where the application of the law was ambiguous (1961, 132; 1958, 610-11). Nevertheless, he resisted the claim that ambiguity of application made the law itself unclear. He argued that such “penumbral” cases, where a judge had to exercise discretion, could only arise because there was a “hard core of settled meaning in law” that had to be applied in unanticipated circumstances (1958, 614). I argue that this traditional account of the rule of law should be replaced. A more persuasive account of the rule of law would focus on the subjective, internal attitudes and values held by judges. In his early work, Ronald Dworkin forcefully criticized Hart’s positivist view, calling it “mechanical jurisprudence,” and arguing that it fails to make sense of the looser, but no less constraining, obligation that judges feel to the law when they decide cases (1978, 15-16). In contrast to Hart’s notion of judging as the application of fixed, determinate meanings, Dworkin’s later 11 work argues for a concept of law that is much more fluid and dynamic: “legal reasoning is an exercise in constructive interpretation” (1986, vii). Just as actors in other social practices, judges must interpret their own practices “in order to decide how best to continue them” (2006, 12). The law is one of the essential features of the judge’s social practice that must be interpreted (ibid., 11-12). This means that – at least in hard or “penumbral” cases, the law does not “determine” the outcome in a heavy-handed way. But neither is the judge free to strike out on her own. She must come up with a decision that is constrained in at least two ways: it must “fit” into past legal practice, and it must demonstrate its point or value in terms of that practice. A judge’s opinion about the best interpretation of the law in this sense will necessarily be affected by political, moral, and other decisions not necessarily shared with the rest of the legal community. Nevertheless, the judge has an obligation to justify her political or moral decision on “legal” terms that are shared by all legal practitioners (1982a, 543-45; see also 1996, 2, 7; 2006, 1-35). Thus, Dworkin insists that we should “abandon the pointless search for mechanical or semantic constraints . . . which will guarantee that judges will all reach the same answer in complex or novel . . . cases” (ibid., 82). The best judges can do is to follow their best sincere understanding of what the law requires. Building on these key insights, I argue in Chapter One that the rule of law can still be upheld, even in the absence of completely objective external constraints, so long as judges have properly internalized an attitude of “feeling bound” by law. 12 That is, judges must feel themselves to be bound by their best interpretation of the available legal rules and principles. Further, this “feeling bound” must be backed up by a strong community tradition of judicial discipline, which fosters and cultivates the social practice of rule-of-law values. In short, even if the available legal rules are unclear or open to differing interpretations, the rule of law will still be upheld so long as judges appear to be acting in a good faith, rather than a results-oriented, way. The second problem with the current debate over judicial decision making and the rule of law is a methodological one. In short, judicial decision-making scholars are usually focused on the externally measurable qualities of judicial decisions rather than internal judicial attitudes. This effectively ignores the words of judges themselves, who typically explain their own actions in ways that widely diverge from the findings of scholars (see e.g., Edwards 1998, 1337-38; Wald 1999, 270). More importantly, ignoring these words results in scholarship that fails to confirm or deny the existence of rule-of-law values. Thus, I will argue in Chapter Two that the substantive and methodological approaches taken by both sides in the debate over judicial decision making are too external. Behavioralists and attitudinalists uncover great evidence that exogenous political preferences significantly affect many judicial decisions, but have been less successful in showing that endogenous attitudes about law do not affect such decisions. Post-behavioralists and New Institutionalists have made great strides in showing that the internal attitudes of judges are significantly affected by legal and 13 institutional values, but have focused mostly on external evidence of those attitudes I will argue that post-behavioralists and New Institutionalists need to strengthen their approach by focusing specifically on internal rule-of-law attitudes through the use of a “depth-hermeneutic” approach (See Gibbons 2006, 563 n. 2). Such an approach is grounded in the philosophical work of Gadamer (1996; 1975), Taylor (1991; 1971) and others, and has been used by ethnographers such as Clifford Geertz (1973a; 1973b; 1976). Rather than examining the external artifacts of human action, such an approach seeks to understand the “language, tacit ideas, inchoate understandings . . . historical background and social practices that help . . . constitute a way of life” (Gibbons 2006, 563, n. 2). By thus studying judging less as a political phenomenon and more as a particular “way of life,” I argue that it should be possible to see whether judges have the values, beliefs, and attitudes appropriate to a rule-of-law system. In Chapter Three, I will begin the process of building such a depth- hermeneutic account by outlining specific aspects of judicial decision making that might be investigated in order to discover whether judges are acting consistently with the rule of law. I will draw on various post-positivist philosophers, New Institutionalist scholars, and legal theorists to build a more complete “Social Practice Model” of judging and the rule of law. This model posits that three basic elements deeply constitute the attitudes of judges toward the law in ways that are consistent with the rule of law: (A) The legal-judicial community forms a “moral tradition” or 14 “common ideal” that encourages judges to “feel bound” by the law through various social conventions and shared understandings; (B) The language practices of judges both solidify community conventions and understandings; and provide resources for transforming those same conventions and understandings; and (C) The traditional judicial virtues, which flow out of the first two factors and habitually predispose judges to the values of “Justice,” “Impartiality,” and “Integrity.” Along the way, I will illustrate these constitutive elements by discussing the personal reflections of several noteworthy judges whose experiences seem to confirm the model. However, I will conclude this chapter with a review of the personal reflections of other judges whose experience do not seem to match the social practice model. The final and major goal of this dissertation will be to determine whether the components of the Social Practice Model provide a more trustworthy guide to the rule-of-law experiences of judges than the words of the rule-of-law skeptics. Thus, in Chapter Four, I will present a typology of judging, designed to specify more clearly what kinds of judicial words and actions are consistent and inconsistent with the rule of law. I will discuss two ideal types of judging that uphold the rule of law: Formalist Judging, which involves mechanically following legal-judicial community values, language practices, and judicial virtues in a relatively un-self-conscious way, and Good-Faith Judging, which involves self-conscious respect and deference to one’s best understanding of community values, language practices, and judicial virtues, even in the absence of determinate rules. I will also outline two other types 15 of judging: Cynical Judging, which involves disrespect for community values, language practices, and/or judicial virtues, and which fails to uphold the rule of law; and Rogue Judging, which involves disrespect for community values, language practices, and judicial virtue combined with an active flouting of these norms, and which also violates the rule of law. Also in Chapter Four, I will outline the methods used to gather data from 24 federal and state appellate judges. I will also defend such research against several common criticisms of this type of research. In the remaining chapters, I will present the data drawn from my research. Based on this data, I will argue that the ardent rule-of-law skepticism described above is largely unfounded because the first two types of judging are much more prevalent than the latter two. In Chapter Five, I will review the evidence for Formalist and Good-Faith judging, arguing that these judicial types adequately explain over ¾ of the data. As I will show, most of the judges I interviewed have a Formalist attitude toward most of the cases decided by their court. This is because most of the cases are governed by clear and compelling legal rules as to which there is no significant disagreement between judges. In these kinds of cases, the judges tend to adopt rigid and mechanical attitudes toward the available legal rules. As I will further show, these attitudes appear to be the logical outgrowth of a particular kind of social practice, including specific community, language, and virtue influences. In terms of community influences, these judges discuss those aspects of their legal education and training that trained them to see the law as a set of external 16 rules. They also discuss their interactions with other judges and legal elites, which encourage them to act in a formalistic way in these cases. In terms of legal language, these judges tend to perceive a great deal of clarity and determinacy in the law. They also report engaging in highly formalistic interpretive techniques and a high level of legalistic terminology. The virtue attitudes fostered and reinforced by these community and language influences are largely mechanical – judges feel a very strong ethical obligation to follow the law in an almost unthinking and unself- conscious way. However, in more difficult cases, where the rules are less clear and where judges have more disagreement, these Formalist attitudes give way. Thus, in Chapter Five, I will also review the Good-Faith Attitudes that emerge when we discuss these “hard cases.” In these types of cases, the judges tend to acknowledge the ambiguity and indeterminacy of the relevant legal rules and principles, and the level of reasonable disagreement between judges. However, the judges also claim that their decisions are still determined by their best understanding of this ambiguous and indeterminate law. These attitudes also appear to be the logical outgrowths of a social practice related to but distinct from the Formalist one. In terms of community, the judges report being socialized by early personal and educational experiences into an attitude of obligation to the law, no matter how incomplete or unclear. They also report a kind of educative effect created by discussions among judges, which teaches them that judges can reasonably disagree while still being committed to obeying the 17 law as they understand it. In terms of legal language, these judges think about and use legal rules and principles in a way that acknowledges their obligation of fidelity and their need to creatively interpret those rules and principles to cover new situations. Together, these community and language attitudes foster and reinforce the traditional virtues we normally associate with judging, including impartiality, integrity, and situation sense. In sum, even though the law may be unclear or indeterminate, judges with Good-Faith attitudes nevertheless see the law as something bigger than themselves, to which they owe a duty of loyalty and fidelity. But these types of judicial attitudes are not the only ones illustrated by the data. There is also a small percentage of attitudes – less than ¼ -- that seem to challenge rule-of-law values. In Chapter Six, I will review the evidence for these Cynical and Rogue attitudes. I will show how some judges I interviewed did not seem to share the rule-of-law attitudes that prevail among the others. Judges with Cynical attitudes are largely disrespectful of the obligation to subordinate their personal, political, or social preferences to the law. In terms of community influences, these judges report a high degree of alienation or lack of preparation in their educational and legal practice experiences. They also recall being socialized into the notion that law is inherently malleable. These experiences appear to have an effect on the way some judges use legal language – they are openly skeptical of the idea that the law can provide any objectively “right answers,” and they report using legal interpretation to mask the exercise of discretion used to reach a desired result. 18 Rather than fostering and reinforcing traditional judicial virtues, these community and language attitudes tend to foster and reinforce skepticism and doubt toward those virtues. Finally, in Chapter Six, I will also review the evidence of Rogue judging, which goes even further than Cynical judging by openly flouting the rule of law. Judges with these attitudes openly profess to use the available rules and principles in an instrumental manner to reach whatever personal, social, and political results they desire. These judges report various community experiences that have led them to the conclusion that law is merely instrumental, including experiences as legal advocates and perceptions of instrumental actions by other judges. These experiences, I will show, influence some judges to engage in overtly political interpretations of the law and to use judicial opinions merely as rationalizations for whatever result they want to reach. Together, these community and language attitudes foster and reinforce the judicial vices of partiality, lack of integrity, and lack of legal wisdom. In short, these judges have a result-oriented view of the judicial role, which refuses to be constrained, guided, or significantly affected by the law. I will conclude by summarizing how this data sheds light on the question of what it means to be a judge – as opposed to an executive, a legislator, or an administrator – in a rule-of-law system. The attitudes of most judges I studied fail to illustrate the traditional, objective understanding of the rule of law as a seamless system of objective rules. However, the data amply illustrate the alternative version 19 of the rule of law outlined in this dissertation – the idea that the rule of law is a socially constructed practice consisting in part of the judge’s subjective sense of fidelity and obligation toward the available legal materials. For the most part, the judges interviewed for this dissertation appear to be part of a community enterprise oriented toward preserving a tradition or social convention of “feeling bound” by the available legal materials. Their language and discourse practices serve as a medium through which individual decisions are both held accountable to community norms and, in turn, hold the community itself accountable to its own norms. Finally, judges are habitually oriented toward maintaining and furthering traditional judicial virtues. Certainly, not all judges have this rule-of-law experience to the same extent. Some judges may even acknowledge that, for some issues and in some cases, their approach is largely results-oriented. These exceptional judges and exceptional situations may mean that the rule-of-law experience is not universal in our legal system. However, even if true, this should not blind us to the possibility that most federal and state appellate judges perceive their decision-making role in ways that are largely consistent with our most cherished political values. Indeed, I will argue that these self-reported experiences are not “just words” designed to manipulate or rationalize the exercise of undue political power. Instead, the words of judges can actually provide us with a trustworthy picture of how judging helps to uphold the rule of law. 20 Finally, I will make two sets of practical recommendations – one for policymakers charged with the responsibility of choosing appellate judges and another for social scientists and legal scholars. For government officials and others responsible for choosing appellate judges, I recommend ways to identify judges who have internalized the proper rule-of-law values. For social scientists interested in rigorously testing for the presence of proper rule-of-law values, I recommend ways to improve and advance the kind of research conducted for this dissertation. I also recommend ways to compare the internal evidence of judge’s perceptions reported here with external evidence of judicial decisions, and to supplement this research with new tools and techniques. In the end, I argue, there is very little support for the position of rule-of-law skepticism taken by Crits and Attitudinalists. If properly understood, the rule of law can be shown to be alive and well every day in our federal and state court systems. Rather than being derided as a myth, the rule of law should be seen for what it is: a precious and hard-won cultural treasure, which should be improved when possible, but also valued and prized as an amazing human achievement. 21 CHAPTER ONE: WHAT DOES THE RULE OF LAW REQUIRE OF JUDGES? There is an emerging international consensus that the rule of law is a societal good. As Brian Tamanaha has observed, “the rule of law stands in the peculiar state of being the preeminent legitimating political ideal in the world today . . . .” (2004, 4; see also Shklar 1964, 22). Often, the U.S. legal system is held up as a shining example of how the rule of law works, as evidenced by the demand for the advice of American lawyers and judges on how to construct and maintain a rule-of-law system (See, e.g., Schwartz 2000; Edwards 2003). Given this admiration for the American version of the rule of law, it is interesting that American scholars disagree – and disagree quite strongly – about what the rule of law requires of government officials, including judges. As many have noted down through the years, invocations of the rule of law often have a hortatory character, which obscures rather than illuminates the underlying concepts (see, e.g., Harvey 1961, 487; Cooperrider 1961, 501-02). This led one scholar to wonder whether, in invoking the rule of law, we are “using a notion of determinate content . . .” or instead “tilting [at] Leviathan with only the emotive force of a cliché” (Harvey 1961, 488). Moreover, when we apply this ambiguous term to the decisions of judges, the confusion deepens. For example, in his opening statement before the Senate Judiciary Committee, Chief Justice Roberts famously used the example of a baseball umpire to describe the conservative view of judging and the rule of law: 22 Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire. . . . And I will remember that it's my job to call balls and strikes, and not to pitch or bat (Roberts 2005). Many critics of the Roberts nomination strongly disagreed with this conclusion, arguing that judges (like umpires) must inevitably make subjective political choices. This view was amply illustrated by lawyer (and former umpire) Robert Schwartz, in a New York Times Op-Ed piece: In fact, judges must routinely interpret the law - just as umpires must interpret the rules of the game. . . . [T]he rules of baseball, like most laws, can be interpreted in different ways. . . . Umpires often have no choice but to use discretion. . . . [T]he best umpires are honest enough to acknowledge that they have an approach to umpiring. The myth of the neutral umpire is no more tenable than that of the neutral justice (Schwartz, 2005; see also Dworkin 2005). Scholars on both sides of the debate over judicial decision making have largely avoided these larger societal questions, focusing instead on whether legal or political variables provide the best explanation for judicial decisions (see, e.g., Segal and Spaeth 2002, 1999, 1993; Gillman 2001). As I will argue in Chapter Two, these scholars differ in their assumptions about the rule of law; but neither side has taken the time to explain or fully discuss these assumptions. However, this kind of work is necessary in order to judge the real social value of the debate over judicial decision making. In this chapter, I will provide the necessary foundation for a more complete discussion of judicial decision-making and the rule of law. First, I will trace the 23 development of the traditional formalist understanding of the rule of law. According to this understanding, the rule of law requires a radical separation between the subjective values of the legal decision maker and the objective rules laid down by the society. Second, I will show that this formalist understanding is not the most persuasive way to interpret the idea of the rule of law in western political theory. Instead, following Brian Tamanaha, I will argue that the rule of law can still be upheld, even in the absence of determinate external rules, so long as government officials have internalized certain key attitudes and values regarding the law. More specifically, I will argue that rule-of-law judging consists of a subjective “feeling bound” by the available legal materials. This “feeling bound” is fostered by a variety of community traditions – a “social practice” – which imposes a kind of “judicial discipline” on judicial decision making. A. The Rule of Law as an External Constraint The traditional conception of the rule of law is that preexisting rules establish a network of external constraints on government officials, including judges. In order for the rule of law to work, according to this conception, this network of constraint must tie the judge’s hands so completely that they cannot act as they otherwise would. In the words of Chief Justice Marshall, it must be the case that “[c]ourts are mere instruments of law, and can will nothing.” (Osborn v. Bank of the United States, 22 US (9 Wheaton) 736, 866 (1824)). Thus, if judges routinely slip through 24 the network and are able to make decisions based on their personal political preferences, the rule of law is falsified. Consistent with most other scholars, Tamanaha (2004) traces the traditional view of the rule of law to a notion that there is a radical separation between law- givers and law-interpreters. While he traces this concept back to the ancient Greeks, the idea goes back even further to the ancient Babylonians and Hebrews, who understood particular human interpretations of the law to be grounded in a transcendent divine source. The Code of Hammurabi (who ruled the Babylonian Empire from 1792-1750 B.C.E.) aptly describes this differentiation between subjective and objective law: When the lofty Anu, king of the Anunnaki, and Enlil, lord of heaven and earth, who determines the destinies of the land, committed the rule of all mankind to Marduk, the first-born son of Ea . . . . [A]t that time, Anu and Enlil named me, Hammurabi, the exalted prince, the worshipper of the gods, to cause righteousness to prevail in the land, to destroy the wicked and the evil, to prevent the strong from plundering the weak, to go forth like the sun over the black-headed race, to enlighten the land and to further the welfare of the people. (Robbins 1990, 20). Ancient Hebrew thought likewise posited that decisions in individual cases are grounded in divine sanction. Even earlier in the Torah than the Ten Commandments is the story of Cain’s murder of his brother Abel. In this incident, recorded in Genesis 4:1-16, it is God himself who acts as the judge, “administering justice in the manner of the patriarchal chieftan of that time. . . .” (Amram 1990, 23). Even when a measure of this judging power is handed over to semi-secular officials, 25 “[t]he priesthood was charged with the responsibility of keeping [the civil government] within the framework of Mosaic law . . . .” (Dimont 1990, 27). In many ways, the ancient Greek conception of the rule of law is consistent with these older understandings. Although subject to a different mythical-religious framework, Plato and Aristotle’s also posit a radical separation between law-givers and law-interpreters. For example, according to Plato in The Laws, “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off; but if law is the master of the government and the government is its slave, then the situation is full of promise and men enjoy all the blessings that the gods shower on a state.” (1970, 174). Likewise for Aristotle, writing in The Politics, this separation of objective law and subjective decision making ensures the rule of reason over passion: Now, absolute monarchy, or the arbitrary rule of a sovereign over all citizens, in a city which consists of equals, is thought by some to be quite contrary to nature; . . . That is why it is thought to be just that among equals everyone be ruled as well as rule, and therefore that all should have their turn. And the rule of law, it is argued, is preferable to that of any individual. . . . [H]e who bids the law rule may be deemed to bid God and Reason alone rule, but he who bids man rule adds an element of the beast; for desire is a wild beast, and passion perverts the minds of rulers, even when they are the best of men. The law is reason unaffected by desire. (1988, 1286). As this view became translated into Roman thought, law was still grounded in an objective and transcendent metaphysical order, but it also began to take on a life of its own. In fact, Cicero goes so far as to call the law itself a “silent magistrate”: 26 You appreciate, then, that a magistrate’s function is to take charge and to issue directives which are right, beneficial, and in accordance with the laws. As magistrates are subject to the laws, the people are subject to the magistrates. In fact it is true to say that a magistrate is a speaking law, and law a silent magistrate (1998, 151). It is an understatement to say that Roman emperors did not always follow this maxim. However, even given the encroachments of power in the waning days of the republic, “it was generally understood that the emperor, when not exercising his law- making power, was subject to the framework of the legal tradition . . . . The emperor was indeed above the law in theory and by general understanding, but in practice the law still mattered, and imposed constraints on regal conduct” (Tamanaha 2004, 13). Indeed, this notion of law as a constraint that operates on the judge or government official from the outside, becomes the primary image for how the rule of law works. Making Aristotle’s view of law relevant to the Medieval Catholic social order, St. Thomas Aquinas agrees that government officials, including judges, should be governed by law operating as an external constraint rather than by their own preferences: “those who sit in judgment judge of things present, towards which they are affected by love, hatred, or some kind of cupidity; wherefore their judgment is perverted.” (1987, 76). While Aquinas acknowledges that the sovereign is theoretically exempt from the positive law, he insists that the sovereign is always subject to natural law and divine sanction. Thus, the sovereign should voluntarily subject himself even to the positive laws: “whatever law a man makes for another, he should keep for himself.” (ibid., 100). 27 The relationship between secular and religious authority in the Medieval period illustrates this notion of the rule of law. For example, in undergoing a coronation ceremony, the secular king took an oath to uphold the preexisting laws of the state (Tamanaha 2004, 22). “Even Louis XIV, the exemplar of absolutist monarchy, stated in an ordinance in 1667, ‘Let it not be said that the sovereign is not subject to the laws of his state; the contrary proposition is a truth of natural law . . .; what brings perfect felicity to a kingdom is the fact that the king is obeyed by his subjects and that he himself obeys the law.’” (Ibid., 22, quoting Tunc). This idea of using a pre-existing body of rules and norms to govern secular authority applied even when the rules and norms did not originate in God or the Catholic church. Magna Carta’s (1215) protection of the rights of the English nobility to be subject only to regular courts and procedures contains a historic reaffirmation of the principle that government officials owe their positions not to their own power, but to the law existing separately and apart from them. Even though limited in scope, this document quickly became the moral progenitor of the liberal rule of law position, as summarized by Lord Bracton: Let [the King], therefore, temper his power by law which is the bridle of power, that he may live according to the laws, for the law of mankind has decreed that his own laws bind the lawgiver . . . . [N]othing is more fitting for the sovereign than to live by the laws, nor is there any greater sovereignty than to govern according to law, and he ought properly to yield to the law what the law has bestowed upon him, for the law makes him king. (Bracton 1968, 305-06). 28 As these ancient ideas of law existing separately and apart from the sovereign continued into the modern era, a practical and theoretical problem arose. As long as law is defined by someone other than government itself – whether that someone is God, the church, or custom – government officials could at least appear to subject themselves to law as a kind of external rule or norm that tied their hands. However, when governments themselves became the primary source of law, this temporary compromise broke down: “This changes everything, for if positive law is a matter of will, changeable as desired, it would seem that there can be no true legal restraint on the law-maker.” (Tamanaha 2004, 28). A partial solution to this modern dilemma was provided by the development of institutional but nevertheless independent courts and judges. But this solution was only partial because it still involved one class of government officials – judges – who by definition were not subject to the law. Although not discussing judges in particular, Hobbes well understood the difficulty (or impossibility) of being both in charge of the rules and subject to those rules at the same time: A rule is inherently powerless; it only takes on life if it is interpreted, applied, and enforced by individuals. That set of human beings that has the final say over what the rules are, how they should be applied, and how they should be enforced has ultimate control over what the rules actually are. So human beings control the rules, and not vice versa. (Hampton 1994, 16). Thus, modern thinkers continued to maintain that government officials must be bound by some external rules, but were not always forthcoming about the way to 29 enforce this norm. For example, Locke’s notion of government as a social contract seemed to imply that both the people (as sovereign) and their government were bound by law: [F]or all the power the government has, being only for the good of society, as it ought not to be arbitrary and at pleasure, so it ought to be exercised by established and promulgated laws; that both the people may know their duty, and be safe and secure within the limits of the law; and the rulers to kept within their bounds . . .” (1980, 72-73). Thus, “the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen . . .” (ibid., 46- 47). Montesquieu’s notions of separation of powers and checks and balances are designed to be another partial solution to the modern rule of law dilemma. With the power to implement, enforce, and interpret the rules vested in different and competing parts of government, Hobbes’ notion of the sovereign as the master of the rules could be significantly tamed and harnessed. So long as the judiciary was independent of the other branches, the courts could be trusted to give follow the wishes of the people: “The idea is not so much to ensure judicial rectitude and public confidence, as to prevent the executive and its many agents from imposing their powers, interests, and persecutive inclinations upon the judiciary. The magistrate can then be perceived as the citizen’s most necessary, and also most likely, protector.” (Shklar 1987, 5). 30 Of course, this notion of an independent judiciary as a guarantor of popular sovereignty famously made its way into the debate over the ratification of the U.S. Constitution. Alexander Hamilton’s argument in Federalist 78 is essentially the same: “[Constitutional] limitations . . . can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void.” (Madison, Hamilton & Jay 1966, 466). Chief Justice John Marshall put this idea into practice in Marbury v Madison, where he reasoned that it was “emphatically” the Supreme Court’s duty “to say what the law is” in order to ensure that we have “a government of laws, and not of men.” (1 Cranch 137, 177 (1803)). Thus, as Tamanaha (2004) has observed, modern political systems simply replaced a divine or religious constraint on governments with written rules: “In modern liberal democracies, the binding constitution replaces the role formerly fulfilled during the classical Greek and Roman, and medieval periods, by divine or natural law, or the ancient code, or customary law, in providing legal constraints on the sovereign.” (56). What, then, is the necessary form and content of the rules that have replaced divine sanction in modern societies? In perhaps the most famous modern exposition of rule-of-law requirements, A.V. Dicey (1902, 1908) put forth three essential conditions: (1) Power must be exercised in an “ordinary,” rather than an arbitrary, manner; (2) Political leaders must be subject to the same laws as ordinary citizens; (3) General rules of law must result from the ordinary laws of the land (in England’s 31 case, the common law) (1908, 179-92; see also Harvey 1961, 491-92). Dicey’s disciple, Friedrich Von Hayek, developed this approach into a general doctrine focusing on external, objective, preexisting rules: [G]overnment in all its actions is bound by rules fixed and announced before-hand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances and to plan one’s individual affairs on the basis of this knowledge” (1944, 72; see also Harvey 1961, 492). Following this pattern, Lon Fuller famously identified eight different elements comprising the internal morality of law in a rule-of-law system: (1) “Generality” – there must exist abstract rules that can be defined and applied to concrete cases (2) “Notice” or “Publicity” – making “available to the affected party . . . the rules he is expected to observe”; (3) “Prospectivity” – rules enacted before the actions alleged to have violated those rules; (4) “Clarity” – rules written in an understandable way; (5) “Non-Contradictoriness” – rules must not require actions that are contradictory; (6) “Conformability” – rules must not require “conduct beyond the powers of the affected party”; (7) “Stability” – rules must not undergo “frequent changes” such that “the subject cannot orient his action by them”; and (8) “Congruence” – a correspondence “between the rules as announced and their actual administration” (Fuller 1964, 39; Radin 1989, 784-85). Finally, John Rawls (1971) completes this tradition of the rule of law by focusing on the rational, rule-oriented order of liberal politics. “Given that the legal 32 order s a system of public rules addressed to rational persons, we can account for the precepts of justice associated with the rule of law” (ibid., 236). There are four such precepts: (1) “Ought implies can” – meaning that people must have the ability to comply with the rules and officials must act in good faith; (2) Similar cases must be treated similarly – which requires that the rules themselves be consistent and that there be limits on judicial discretion; (3) “Nullum crimen sine lege” – the old maxim of no crime without law, which requires that laws be known, published, clear, prospective, general, and that severe offenses be narrowly interpreted; and (4) “Natural Justice” – procedures for ascertaining the truth, including trials, rules of evidence and due process, judicial impartiality and independence, and fair, open, deliberate trials (ibid., 236-39). The logical implication of this modern liberal conception of the rule of law is “legal formalism” (Radin 1989, 793-94; see also Grey 1983). 1 As outlined with great clarity by law professor Margaret Jane Radin (1989), legal formalism has two distinct senses. The first sense has to do with the logic of the law itself: the notion that “a unique answer in a particular case can be ‘deduced’ from a rule . . .” (ibid., 793). The second sense has to with the deeper structure or foundation of the law: “the view that there exists a mind-independent reality consisting of certain first principles either of fact or value” and that “these first principles form a logical, analytical ‘foundation’ for the law (ibid.). 1 For an excellent overview of several formulations of the liberal rule-of-law ideal, more complete than I can offer here, see Fallon 1997. 33 Formalism in both of these senses provided the theoretical underpinnings of legal positivism’s attempt to separate law and morality. For example, H.L.A. Hart (1961) famously attempted to ground the legitimacy of law in the existence of “secondary rules,” such as the “rule of recognition,” that provide some objective indication of which “primary rules” should be followed. Similarly, Hans Kelsen’s (1967, 1992) “pure” theory of law is designed to establish the validity of individual legal rules through a foundational chain of other valid norms stretching back to one overarching “Basic Norm” (the Grundnorm). Indeed, it was precisely this separation in traditional legal theory between objective legal rules and the subjective decisions of government officials that gave rise to perhaps the most insightful, compelling critique of the western notion of the rule of law: that of Frankfurt School theorist Franz L. Neumann (1986). Neumann argues that the ambiguity of the objective rules, combined with the subjective value choices of judges and other government officials will always advantage societal elites and disadvantage autonomous political action by the disenfranchised Thus, for Neumann, legal formalism represents part of the liberal democratic heritage that needs to be respected and preserved (see Whitehead 2001, 675; see also Scheuerman 1994, 144-45, 195-99). On this traditional conception of the rule of law, then, judges – just like all other government officials – have an existence separate from the rules they apply. More specifically, their behavior is bound by objective rules that can be clearly 34 understood, applied, and followed. This traditional theory of the rule of law is represented in Figure One: Figure 1: The Objective Theory of the Rule of Law B. The Rule of Law as an Internalized Value System This formalist understanding cannot be all there is to the rule of law. After all, regardless of the substance and logic of the rules, judges are still people. What is to stop them from becoming the new Hobbesian sovereigns who themselves are bound by no law? In other words, even when the rules are clear, what stops judges from interpreting and applying them whichever way they see fit? As Tamanaha (2004) has brilliantly observed, there are several other elements in the western political and social environment that serve to keep judges honest to the rule-of-law C O N S T I T U T I O N R E G U L A T I O N S PRECEDENTS STATUTES 35 tradition. These elements have less to do with objective, external rules and more to do with the subjective, internal attitudes of judges about those rules. “[The] answer to the ancient puzzle of how the law can limit itself is that it does not; attitudes about law provide the limits.” (Tamanaha 2004, 58, emphasis supplied). In fact, even the foremost legal positivist of the Twentieth Century, H.L.A. Hart (1983, 1961), recognized that a merely objective, external view of legal interpretation was insufficient. According to Hart, “[o]ne can only understand normative – rule-following – behavior if one leave’s one’s spectator’s perspective and tries to understand the perceptions of the participants in the system, that is, the perceptions of the people who are following the rules, and who perceive themselves as doing so” (Bix 1999, 38). To understand “any form of normative social structure,” such as judging, “what is needed is a . . . method which involves portraying rule-governed behavior as it appears to the participants” (Hart 1983, 13). 2 1. The Attitude of “Feeling Bound” Thus, even within the framework of the traditional ideas sketched in the previous section, the rule of law requires judges and others to have a particular subjective orientation toward the law. As Isaiah Berlin once observed, “[w]hat makes [a nation] comparatively free is the fact that this theoretically omnipotent entity [government] is restrained by custom or opinion from behaving as such. It is clear that what matters is not the form of restraints on power – whether they are 2 For an interesting attempt to rigorously define the rule of law in positivist terms, and also to describe what effect it might have on actual social practices, see Lovett 2002. 36 legal or moral or constitutional – but their effectiveness.” (1969, 166 n. 2, emphasis added). Although it may be possible to speak intelligently of the internal structure and logic of “the law,” this structure or logic “in itself cannot rule or control anything or anybody” (ibid., 507). Rather, “every event which is habitually ascribed to the law is actually the product of the mind, the will, the act of some identifiable human being” (ibid.). Thus, the problem of law is not a logical problem, but a “personnel problem” (ibid.). In the American political context, this personnel problem was solved in part through Montesquieu’s idea of separation of powers. The Court would seek to enforce the Constitution on behalf of the people, but it would also be “the weakest branch . . . possessing neither force nor will, but only judgment” (Madison, Hamilton & Jay 1966). But another crucial part of the solution lay in another of Montesquieu’s ideas, which is less well-known: his notion that the rule of law is not as much the product of external rules and institutions as much as it is a product of deep-seated ideals, beliefs and commitments by both the people and government officials. Thus, legal formalism presents us with a radically truncated version of the rule-of-law argument, which must be replaced – or at least supplemented – with other, more subjective, elements. Any view of the rule of law that reduces law to the mechanical finding and applying of the proper rules and “seeks to eliminate judicial will from the picture entirely . . . [contains] a large element of fiction” (Cooperrider 37 1961, 505). We should rather conceive of all the rule-of-law precepts summarized in the previous section not as a recipe for mechanical judging, but more as a rough description of the “attitude which the judge should bring to his task; that it should be his objective to deal with the case before him in that way which seemed to him on the facts to be the fairest or most desirable from a social point of view” (ibid., 505- 06). But what specific attitudes toward law should judges have in order for the rule of law to restrain arbitrary power? Namely, an attitude of feeling bound by their best interpretation of what the relevant legal literature requires. Although the law consists solely of ideas, the great bulk of those ideas are already given when the particular judge or lawyer comes upon the scene. They are found in an extensive literature with which he has learned to work, and are ideas concerning action under carious circumstances which, because they are derived from that literature, members of the community, including the judges, consider to be binding upon themselves and upon others. Though they are commonly called ‘rules’ they are far more complex than that name would suggest. The feeling of obligation . . . is their most important characteristic. Without it, they would be totally ineffective (Cooperrider 1961, 507, emphasis added). On this view, judges are not restrained in any external sense by objective legal rules. At most, the judge “responds to a feeling of obligation to decide the case in such a way that the decision will be consistent with the ideas which he finds in the existing authoritative literature” (ibid., 508). The rule of law thus requires “the subordination of [the judge’s] judgment to that of the collectivity of his predecessors, for a primary reliance on a reasoned extrapolation of accumulated experience” (ibid., 506). In other words, “if the rule of law is to function effectively . . . [j]udges . . . 38 must be imbued with the sense that their special task and obligation is fidelity to the law.” (Tamanaha 2004, 59, emphasis added). 2. Community Constraints on Judicial Decisions But how then can we know that judges have the proper attitude of “feeling bound” or obligated to their best interpretation of the existing law? Put another way, what are the specific, concrete attitudes that are conducive to the more general attitude of “feeling bound”? If a rule-of-law system is to work, the judge’s “feeling of obligation must be preserved” through the cultivation of “judicial discipline” (Cooerrider 1961, 508). In the early American political context, Alexis deTocqueville observed a complex of legal and judicial characteristics helpful in fleshing out this notion of judicial discipline: “Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas.” (1900, 122, emphasis added). But this merely pushes the question back one step further: how are these judicial disciplines cultivated? Having moved away from a reliance on the structure and logic of law as a possible constraint on arbitrary power, what can give us confidence that our judges are cultivating the proper judicial attitude of feeling bond by the available legal texts? One compelling answer – explained more fully in Chapter Three – is found in the notion of “communal or cultural traditions” within which judges are embedded (Feldman 2005, 100). 39 For instance, despite his attachment to clear, settled legal rules, Hayek was convinced that the rules themselves would be useless without certain deep-seated community traditions regarding those rules. The law “will be effective only in so far as the legislator feels bound by it. In a democracy, this means that it will not prevail unless in forms part of the moral tradition of the community, a common ideal, shared and unquestioningly accepted by the majority.” (1978, 206, emphasis added). Nor was this Hayek’s own innovation; rather, it was something he learned from Dicey. In addition to Dicey’s structural, rule-bound description of the rule of law in the abstract, he described the more concrete limits on governmental officials as “political” or “moral” rather than rule-based (1982, 26-35, emphasis added). More specifically, [T]raditions inculcate . . . individuals with certain expectations, interests, and prejudices that orient them toward texts . . . . Like other interpreters, judges (and justices) are simultaneously empowered and constrained by their participation in cultural traditions, especially those of the legal community. Those traditions imbue judges with the appropriate expectations, interests, and prejudices – with their interpretive know-how of the law . . . . Traditions inculcate judges with the ‘conceptual equipment,’ with the awareness, both conscious and tacit, that is needed . . . (Feldman 2005, 101-04). As Fred Dallmayr (1990) has astutely observed, this means that the separation – posited by the traditional theory of the rule of law – between the law as objectively laid down by others and the law as subjectively perceived by judges is untenable. Drawing on the work of Gadamer and other hermeneutic theorists, Dallmayr points out that judges are embedded within a common interpretive “horizon” (1461-67). This “horizon” is constituted by the obligations of the judge’s 40 “lived or practical engagement with the law,” which mediate between legal texts and individual interpretations of those texts (ibid., 1461). In other words, a judge (or a social scientist, for that matter) never approaches the available legal materials “directly” or “objectively.” Rather, the judge approaches those texts through the medium of the perspectives, goals, and values provided by the legal-judicial community. Thus, judges do engage in the creative process of shaping the law through their interpretation. But, in “creative[ly] supplementing of the law . . . the judge . . . is subject to the law in same way as every other member of the community. It is part of the idea of a legal order that the judge’s [decision] does not proceed from an arbitrary and unpredictable whim, but from the just weighing up of the whole [situation in context]” (Gadamer 1975, 294). 3 Thus, even if judging is not constrained in any meaningful way by legal rules defined in an objective way, it might still be constrained by the social agreements and practices of the judicial community relative to legal rules (see Radin 1989, 797- 801). Another way to put this is to say, along with Wittgenstein, that rules themselves are irreducibly social: The result of th[e] skeptical deconstruction of the formalist notion of rules is that rule-following must be understood to be an essentially social phenomenon. Rule-following can only be understood to occur when there is reiterated human action both in responding to directives and in observing others respond. Only the fact of our seemingly “natural” agreement on what are instances of obeying rules permits us to say that there are rules. The rules do not cause the agreement; rather the agreement causes us to say that there are rules . . . . Rules are not logically prior to uniformity of action in response 3 For other attempts to apply hermeneutic and Wittgensteinian theory to rule-of-law issues, see e.g., Hoy 1985, Morawetz 1992, and Mootz 1993a and 1993b). 41 to them; rather, uniformity of action is prior to the existence of rules (ibid., 799-800). This social character of rule-following, indebted to a whole tradition of post- positivist philosophy, will be explored at much greater length in Chapter Three. Suffice to say at this point that this notion allows us to see the possibility that the primary goal of a modern rule of law system (i.e., restraining arbitrary power) might still be fulfilled even if we shift our focus away from the objective content of legal rules and toward the judge’s subjective attitudes toward those rules. It is important to remember that, by letting go of objective constraints on judicial action, we are not letting go of all constraints. As we shall see, the subjective attitudes of judges toward law are formed in the crucible of a complex social practice, constituted by community traditions, language practices, and virtues. Rather than merely constraining the actions of judges from the outside in, this social practice shapes and molds the thoughts and intentions of judges from the inside out. If anything, this should inspire even greater social confidence in the rule of law. This alternative understanding of the rule of law is represented in Figure Two, with judges and other rulers being embedded within community traditions, customs, and habits toward law, which deeply construct their thinking and action: 42 Figure 2: The Subjective Theory of the Rule of Law As we have seen in this chapter, even according to traditional accounts of the rule of law, external rule-following is not the whole story. The fact that judges do not seem to be passive instruments of law does not, therefore, falsify the rule of law. Even if judges do not mechanically follow objectively determinate legal rules, the rule of law might still be upheld. If judges feel bound or obligated to subordinate Moral Tradition Custom of Self-Restraint Habits of Order 43 their own preferences to their best interpretation of the available legal materials, and if that “feeling bound” is fostered by systematic, community-enforced, traditions judicial discipline, we can still have confidence that our judicial institutions are fulfilling their much-vaunted social role in upholding one of the pillars of western liberal democracy. The key questions then become: (1) How do judges actually make decisions? And (2) Is contemporary judicial decision making consistent with the reformulated rule-of-law values outlined in this chapter? These questions will be answered in depth in the remainder of this dissertation. 44 CHAPTER TWO: EXTERNAL AND INTERNAL ACCOUNTS OF JUDICIAL DECISION MAKING As I will demonstrate in this chapter, there is a longstanding debate among social scientists over the extent to which politics and law affect decisions at various levels of the judiciary. However, as presently constituted, the debate says very little about the rule of law. Consistent with Brian Tamanaha’s (1996) seminal distinction between “external” and “internal” sociolegal scholarship, I will argue that there are two reasons for the limited nature of this debate: (A) It focuses too much on the external aspects of judicial decision making and not enough on the internal thoughts and attitudes of judges; and (B) It is based on faulty or unstated assumptions about the internal “social practice” required for the rule of law. On the one hand, behavioralists and Attitudinalists claim that judicial decisions are influenced mostly by the judge’s exogenous political preferences. The external approach used by these scholars – focusing mostly on statistical analyses of different kinds of votes – is helpful in uncovering evidence that political attitudes matter, but uniquely unhelpful in supporting the larger claim that legal attitudes consistent with the rule of law do not matter. On the other hand, post-behavioralists and New Institutionalists claim that judging is a “social practice” deeply affected by legal and institutional norms, such as stare decisis, norms of statutory construction, and collegiality. This internal focus on the thoughts and perceptions of judges is more conducive to discovering good evidence regarding the rule of law, but is still too reliant on external evidence of judicial thoughts and perceptions. 45 Studies of judicial decision making based on in-depth interviews offer more promise in uncovering rule-of-law attitudes, but these studies have generally not focused on these attitudes. As I will argue at the conclusion of this chapter, an interview study focusing on the “social practice” of judging offers the most promise in discovering whether or not the rule of law is upheld by judges. A. From the Outside In: Behavioralism and Attitudinalism The Attitudinal Model of judicial decision making (see Segal and Spaeth 1993, 1999), which is the predominant model of Supreme Court decision making in the United States, is the culmination of a long behavioralist tradition of studying courts and judges. As other scholars have observed, behavioralist studies of judicial decision making grew out of the post-war academic fascination with Legal Realism, which fostered an understanding of courts as political institutions and judges as individual political agents (Whittington 2000, 604; see also Gillman 2001, 468). This perspective eventually merged with “the social scientific urge to count things” to produce the trail-blazing proto-Attitudinal and Attitudinal studies of judicial decision making of the 40s, 50s, 60s and 70s (see, e.g., Pritchett 1948; Schubert 1958, 1959, 1963, 1965; Ulmer 1960; Spaeth 1961; see also Whittington 2000, 604- 05). While earlier behavioralist studies, such as those of Pritchett (1948) and Schubert (1958, 1959, 1963, 1965) posited that political attitudes affected judicial decisions along with legal factors properly understood in a post-Realist manner, 46 Attitudinalism argues that legal variables, regardless of how they are understood, have no significant measurable effect on Supreme Court decisions. In general, this tradition seeks to measure the political and social attitudes of United States Supreme Court Justices and to correlate those attitudes with final votes on the merits (see, e.g., Segal and Spaeth 1993, 65; Segal, Epstein, Cameron, and Spaeth 1995, 813-18). Based on the foundation provided by the earlier behavioralist scholarship, researchers began coding variables like party affiliation, background, and socialization (see, e.g., Schmidhauser 1959; Nagel 1961; Schubert 1963; Grossman 1966, 1967), as well as judicial attitudes, values, and policy preferences (see, e.g., Ulmer 1960; Spaeth 1961), and correlating those variables with final votes on the merits. In a seminal 1963 book chapter on Warren Court attitudes toward business, Harold Spaeth argued that “a single politically defined value [liberal attitudes toward business] dominated the voting behavior of the Warren Court justices in the 155 cases regulatory of business that were formally decided during the 1953-1959 Terms” (100). Going further than the older behavioralists, Spaeth claimed that the impact of legal values, such as federalism or deference to administrative agencies, was considerably small (ibid., 91-101). These pioneering behavioral studies of judicial decision making soon morphed into the full-blown predictive theory of judicial action known as Attitudinalism (see Segal and Spaeth 1999, 1993; see also Segal, Epstein, Cameron, and Spaeth 1995; Segal and Cover 1989; Rohde and Spaeth 1976). In The Supreme 47 Court and the Attitudinal Model, Segal and Spaeth complete the long behavioralist tradition of correlating the justices votes with their political attitudes by arguing that such attitudes are the single most significant determinant of voting behavior: “Simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he is extremely liberal” (1993, 65). Beyond that, however, Segal and Spaeth also continue in line with Spaeth’s earlier research by claiming that legal variables have no significant, measurable effect on Supreme Court decisions (see, e.g., ibid., 255, 357-59). Like the older behavioralists, Segal and Spaeth’s view of law is primarily influenced by the Legal Realist arguments that lawmaking inheres in judging and that legal rules and concepts do not actually describe how judges decide cases (ibid., 65-66) and that precedents can be found on either side of all major issues (ibid., 354). In contrast to what they call “the legal model” Segal and Spaeth seek to marshal powerful statistical evidence for the proposition that these factors serve merely to rationalize or even to mask the exercise of a political preference (ibid., 34, 363). The “legal model” Segal and Spaeth attack is defined as the notion that justices are actually constrained by the “plain meaning” of a legal text, framers’ intent, precedent, or a balancing of societal interests (1993, 32-33). Claiming that these factors are widely cited by judges or regarded by legal experts as having a constraining effect on judging (ibid., 33-62), they present a variety of well-worn, persuasive criticisms of each factor. They note, for example: that there is no such 48 thing as plain meaning because language is ambiguous (ibid., 34-38); that legislative or framers’ intent cannot be discovered (ibid., 38-44); that precedents exist on either side of any controversy and, in any event, can always be rhetorically avoided (ibid., 44-52); and that balancing is too flexible a notion to have any constraining force (ibid., 52-53). They also argue, based on Arrow’s (1963) voting paradox, that these forms of interpretivism are “unintelligible” because, even if legislative and constitutional choices could be consistently found and applied, they consist of arbitrary social choices (Segal and Spaeth 1993, 62-64). Responding to criticisms of their work as based on a straw-man conception of how law affects judicial decisions, Segal and Spaeth examined patterns of individual justices’ voting behavior over time to explore the effect of stare decisis – the norm that judges should follow precedent and not disturb well-settled law (Segal and Spaeth 1999, 2002, 288-310). Their research shows that dissenters from a majority opinion continue to dissent from that precedent in later cases. Based on these findings, they argue justices typically eschew precedents that violate their preferences, which contravenes a central tenet of the claim that law matters. Moreover, in the most recent iteration of the “Attitudinal Model,” Segal and Spaeth directly respond to post-positivist critics, who claim that the law might affect the judge’s consciousness in a powerful way through a sense of “professional obligation” to decide cases according to their “best understanding of what the law requires” (Segal and Spaeth 2002, 432, quoting Gillman 2001, 486). They make two 49 powerful arguments against this innovative argument about how law matters. First, they claim that such an account of judicial decision making “is not falsifiable in terms of which decisions judges actually make” and thus “cannot provide a valid explanation of what judges actually do” (Segal and Spaeth 2002, 433). Second, they claim that any identifiable judicial obligation to follow law could actually be attributed to “motivated reasoning,” whereby judges simply convince themselves of the propriety of the decision they already prefer based on non-legal factors (ibid.). Segal and Spaeth claim to take an “agnostic” position on the issue of judicial motivation. What really matters, according to them, is not whether judges consciously or unconsciously convince themselves of some reason for acting, but that they do indeed act in accordance with their policy preferences. The rest is mere speculation so long as no “a priori expectations” about the effect of judicial motivation on judicial action are offered. Moving beyond the narrow confines of Attitudinalism, other scholars have corroborated the notion that Supreme Court justices are thoroughgoing policy makers. For example, partially consistent with Segal and Spaeth’s earlier research on stare decisis, Spriggs and Hansford (2001) claim that the political preferences of the justices have a great impact on whether or not they will overturn a precedent. That is, the further apart the ideology of justice and the existing precedent, the more likely the justice is to overrule that precedent. Although they also find evidence of some legal factors influencing this decision, they find no evidence that the justices 50 are constrained by their institutional environment. Further, McGuire and Stimson’s (2004) research shows that the justices go beyond simply maximizing their own political ideology, but that they also follow the political preferences of the public. Other scholars have taken a similar approach to lower courts, attempting to discern whether these decisions can be reduced to political ideology as well (see generally, Cross 2003, 1479-82; Baum 1997, 83-87). Most significantly, Dan Pinello (1999) conducted a meta-analysis of studies focusing on the connection between ideology and judging at all levels of courts. He found that political party affiliation influenced a significant chunk of decisions made by both appellate and trial judges, although appellate judges were more likely to be affected. Most behavioralist studies of lower courts have focused on appellate courts. Sheldon Goldman’s (1975) pioneering examination of the effects of political ideology on various federal circuit courts concluded that the political party of the appointing president explained a substantial amount of variance in criminal procedure, civil liberties, labor, business regulation, and other cases (501). This has been confirmed by several other scholars, showing that federal circuit court judges often take their own political preferences into account when deciding cases in many areas (see, Reddick 2001, 12; see also Howard 1981; Songer, Segal & Cameron 1994). For example, Richard Revesz’s (1997) study of D.C. Circuit environmental rulings found that the judges’ political preferences provided a significant explanation 51 for their votes during the 1980s (1746). Tracey George’s (1998) analysis of the en banc decisions of the Fourth Circuit found that most of the judges had an ideological bias consistent with the political party of the appointing president (1685). Tiller & Cross (1998) found a significant ideological effect among judges applying the deferential Chevron doctrine of review of agency decisions on “unified” panels, which consisted of judges appointed by presidents of the same party (2170-73). Robert Carp and others (1993) examined the voting records of federal circuit judges appointed by George H.W. Bush and found that conservative political ideology provided a significant explanation of their decisions. Similarly, John Gottschall’s (1986) examination of federal circuit judges appointed by President Reagan concluded that conservative political ideology significantly explained their decisions. Other behavioralists have focused their attention on trial courts. Most of these studies have focused on sentencing decisions. For example, Sisk, Heise, and Morriss’ (1998) analysis of federal district court decisions found that political ideology had a significant effect on the legal theories used by judges in Federal Sentencing Guidelines cases, although not on their ultimate determinations of the constitutionality of the sentences (1450, 1465-70). Several other scholars have uncovered a wide variance in sentencing decisions, which tends to point toward the effect of political policy preferences (see, e.g., Diamond & Zeisel 1975; Levin 1977; Ryan, 1980-81). Finally, Gibson’s (1979, 1978) analysis of state trial court judges found that policy preferences had a significant effect on the decisions of judges who 52 accepted the legitimacy of acting on such preferences when such preferences conflicted with legal considerations. Behavioralism and its most famous progeny – Attitudinalism – can be described as “external” in two distinct ways. First, they operationalize law as an external constraint on judging. Second, they attempt to study the law’s effect on judging externally, through evidence of final votes on the merits correlated with statistical ideological scores. There is nothing inherently wrong with Attitudinalism’s externalism in the second sense. Indeed, we can learn a lot about judicial decision making by analyzing votes and ideological scores. But we should not pretend, as Segal and Spaeth sometimes do (see, e.g., 1993, 34, 332, 363), that this evidence tells us much, if anything, about the internal lived experience of judges. Simply put, if one wants to explore the interactions between law and judicial consciousness, it is most helpful to study both law and judicial consciousness. As to the adequacy of Behavioralism’s externalism in the first sense – its operationalization of the law as a mechanical constraint – New Institutionalists have had much to critique. The precise contents of that critique, summarized in the next section, will point the way toward a more satisfactory study of the connection between judicial consciousness and judicial action. 53 B. From the Inside Out: Post-Behavioralism and New Institutionalism While the Behavioralist approach to judicial decision making has a number of strong critics, 4 perhaps its strongest and most persuasive critics have been those New Institutionalists who have argued that its operationalization of the law is a mere positivist straw man, which ignores more complex, flexible conceptions of how law might affect judicial decisions (Rosenberg 1994, 7; Smith 1994, 8-9; Gillman 2001, 471; George and Epstein 1992, 323-24; Whittington 2000, 627). These scholars claim that Attitudinalism in particular is “premised on a fairly controversial conception of law as a set of clear and determinate rules,” (Gillman 2001, 471; see also Whittington 2000, 627), which is reminiscent of the “positivist” or “mechanical” jurisprudence of H.L.A. Hart (1961, 1958; see also Whittington 2000, 627; Gillman 2001, 471; George and Epstein 1992, 323-24). Moreover, these scholars argue, this outmoded positivist conception of law is accepted by almost no one in today’s legal or social-scientific community (see Gillman 2001, 487-90; Whittington 2000, 627- 28; Dworkin 1978 and 1986). New Institutionalist scholars continue to see the same types of problems in Segal and Spaeth’s most recent iteration of the Attitudinal Model, despite its 4 Some argue, for example, that Attitudinalists code votes and cases too simplistically as “conservative” or “liberal” (Mendelson 1964, 916, 921). Others argue that Attitudinalists unfairly limit inquiry to the ideological aspects of judging without paying heed to the principled, legal aspects of the process (Mendelson 1966, 431; Gillman 2001). Still others claim that Attitudinalists make an unwarranted intuitive leap from the claim that judicial outcomes are influenced by attitudes to the claim that judicial outcomes are determined by attitudes (Baum 1994, 4). Finally, some contend that Attitudinalists ignore other non-legal, non-attitudinal variables, such as strategic interaction with other justices, which affect justices’ votes (Knight 1994: 5-6). 54 attempts to address new post-behavioral scholarship. As Howard Gillman (2003) points out, the new iteration of the model continues to disprove the “phantom opponent” of mechanical positivism, rather than seriously consider newer post- positivist claims that law might matter in a more subtle, yet powerful, way (15). As he notes, “[t]he truth of the matter is that most scholars who think law matters also acknowledge that judges with different ideologies will have different understandings of the law. . . .”(ibid.). Moreover, as Michael Gerhardt (2003) has pointed out, Segal and Spaeth’s criticism of New Institutionalist accounts fails to appreciate the strength and subtlety of the evidence amassed in support of law’s institutional effect on judging. Behavioralists continue to insist that such accounts are not strictly falsifiable, and that institutions are a mere cipher for judicial preferences. But, at the same time, they continue to ignore the “massive” amount of logical, experiential, and historical evidence gathered by New Institutionalists. This evidence supports law’s relevance on “perfectly reasonable” grounds, even if those grounds are different from those relied on by behavioralists (ibid., 1747-48). Thus, New Institutionalists argue, “alongside attitudinalism (and not in contradiction to it), there should be room for the claim that, when it comes to legal disputes that divide ideologues, the justices often translate their political attitudes into relatively stable jurisprudential regimes, and that, in some non-trivial way, these legal regimes are taken seriously” (Gillman 2003, 15; see also Richards & Kritzer 2002). 55 Responding specifically to Segal and Spaeth’s analysis of precedent, New Institutionalists argue that it misconstrues the nature of legal constraints (Gillman 2001). The problem lies in Segal and Spaeth’s assumption that adherence to the law can be measured by the yardstick of whether a Supreme Court justice follows a precedent she disagreed with before it became precedent. Put bluntly, following the law does not require justices to switch their votes and endorse interpretations of the law that they believe were incorrect in the first place. In fact, doing so would be unfaithful to the justice’s best understanding of what the law requires (see Gillman 2001). Thus, if a justice were to act in the way Segal and Spaeth argue is consistent with the law, they might actually be acting in the way that New Institutionalists argue is inconsistent with the law. As a result, Segal and Spaeth’s analysis of legal precedent does not test New Institutionalist conceptions of the role of law in judicial decision making. As Herbert Kritzer (2003) has argued, there is a more persuasive alternative explanation for how and under what conditions judges -- especially Supreme Court Justices – follow previously established legal principles (see also Richards and Kritzer 2002). Rather than focusing on adherence to a singular precedent the judge disagrees with, Richards and Kritzer encourage scholars to focus on what they call “jurisprudential regimes”: The Court creates decision structures to guide both itself and other actors. . . . Such [jurisprudential] regimes constitute another way of looking at the influence of precedent, a way that is consistent with the fact that the Supreme Court seldom revisits the same issue in the same form, and that a decision to 56 revisit an issue directly occurs in situations where the Court is least likely to uphold that precedent established by that prior decision (Kritzer 2003). With respect to the growing body of careful analyses of judicial votes, at least some New Institutionalists would agree with the Attitudinalist claim that much of the existing evidence is subject to multiple interpretations. But, unlike Segal and Spaeth, they would not remain agnostic as to the issue of judicial motivation, because the difference between politically- and legally-motivated judicial decisions is central to the larger issue of whether the rule of law can prevail in a democratic society: it makes all the difference in the world whether we have a model of Supreme Court politics that asserts that justices normally translate their sincere preferences into legal policy or whether it asserts that justices normally announce legal policies they do not sincerely believe in order to help out favored litigants. It is the difference between acknowledging that good-faith judging is often inherently ideological—which is perfectly consistent with a belief in the rule of law and with an insistence that judges conduct themselves in an ethical way—and believing that we should all consider the lies of those hard-ball partisan activists to be a normal and inevitable feature of our system of government (Gillman 2003, 15). Nor would leading New Institutionalists eschew “a priori expectations” about how judicial consciousness affects judicial action. As leading New Institutionalist Howard Gillman has argued, scholars must look beyond the existing evidence and “explain more clearly how they conceptualize legal versus personal influences and what evidence they think will help us distinguish between these alternatives” (2001, 485). 57 In place of behavioralism’s outmoded positivist conception of law, many New Institutionalist scholars conceive of alternative ways in which law could influence judging in a significant, measurable way. As noted above, these alternatives include: seeing the law as a set of discursive practices (Whittington 2000, 621; Kahn 1999); situating the Supreme Court within a larger political, social, and ideological system (Whittington 2000, 621; Smith 1988, 95); treating law as a sort of institutional mission (Whittington 2000, 622-23; Gillman 1999; Clayton and Gillman 1999; Gillman and Clayton 1999; Smith 1988) and treating law as a collection of techniques for achieving the judge’s policy preference by setting up a framework of reasonable expectations for future litigants or other governmental actors or by securing public legitimacy (see Epstein and Knight 1998, 12, 164, 172, 177; Maltzmann, Spriggs & Wahlbeck 2000, 5-6). As Howard Gillman has pointed out, many of these researchers do not see the law as a mechanical “external constraint,” but rather as a “state of mind within a practice,” meaning that law consists of the judge’s sense of obligation to think or act in certain ways influenced by her legal training and experience, sense of professional obligation, and understanding of her purpose, role, or mission (Gillman 2001: 486 and 1999: 78-86). C. Two Versions of the Internal Account In an influential 1988 article, Rogers M. Smith argues that the distinctive contribution of New Institutionalism is a focus on “the importance of the interrelationship between human institutions – or structures – and the decisions and 58 actions of political actors” (91). Following this original formulation, New Institutionalist scholarship can be divided into two camps: Constitutive New Institutionalists, who argue that the peculiar values and purposes of courts as institutions socially construct the practice of judging through the inculcation of judicial and legal norms and values (see, e.g., Gillman 2001, 1999; Whittington 2000; Kahn 1999; McCann 1994; Brigham, 1987, 1978); and Instrumental, or Rational Choice, New Institutionalists, who argue that the organizational characteristics of courts and other institutions construct the practice of judging by creating incentives for judges to use the law to accomplish practical goals (see, e.g., Murphy 1964; Epstein and Knight 1998; Maltzmann, Spriggs and Wahlbeck 2000). 1. Constitutive Scholarship Constitutive scholars pay attention to the ways in which judicial consciousness and role perception are shaped by legal training and experience, the structure, purposes, and procedures of courts, as well as societal expectations of how judges should think and act (Gillman 2001, 486, and 1999: 78-86; Kahn 1999, 175- 76; Brigham 1987, 28, 30-31, 69-74, 168, 170-71 and 1978, 47-49, 30-31, 102). More specifically, these scholars see judges as institutional actors whose political backgrounds influence their decisions but who nevertheless are also faithful followers of the law (see, e.g., Bussiere 1999; Kahn 1999; Gillman 1993; see also Dworkin 1986, 1985, 1978, and Burton 1992). 59 The major theoretical forebear of this constitutive approach is Ronald Dworkin (1996, 1986, 1985, 1982a, 1982b, 1978; see also Burton 1992). 5 Dworkin presents a picture of the judge as an intelligent servant of the judicial institution, who exercises moral and political judgment in order to reach a result that is both faithful to the past and responsive to the needs of the present. Central to this picture is the argument that, instead of being mechanical interpreters of legal rules or principles, judges feel a sense of obligation to follow their best sincere understanding of what the law requires. This sincere understanding may and often will be controversial in the sense that it embodies the judge’s political, moral, and social preferences, with which others disagree. But this controversy does not negate the fact that the judge has found the “right answer” in the sense that she has discovered the best possible reconciliation of the facts of a particular case with her sincere, good faith understanding of what the law requires. On Dworkin’s account, the primary way in which the law affects judging is through its constitution of this particular judicial mind-set. The various empirical studies of law that can be grouped under the heading of “historical” New Institutionalism (see Whittington 2000, 613-16; Gillman 1999, 66) seem to share Dworkin’s conceptions of judging as constituted by a sense of fidelity to law. These scholars use historical analysis of judicial papers and close 5 There are several other post-positivist legal thinkers who propose that law affects judicial decision making in significant but non-determinist ways, including: Wechsler (1959), Tribe (1983, 1985), Ackerman (1991), Sunstein (1999), and Posner (1999, 1995, 1991, 1990). 60 readings of judicial opinions to attempt to recreate the lived experience of judging in particular situations (see, e.g., Gillman 1993; 1999; Bussiere 1999; Kahn 1999). Howard Gillman’s (1994) study of the Supreme Court’s Lochner-era police powers jurisprudence amply illustrates this constitutive, good-faith account of law and judging. Gillman carefully and painstakingly reviews federal and state judicial decisions, legal commentary, and historical records in order to refute the conventional wisdom that Lochner-era judges were simply exercising a preference for laissez-faire economics by striking down worker protections (ibid., 4-12, 199). He shows that the judges were actually engaged in a sincere, principled effort to maintain a longstanding doctrinal distinction between valid economic regulation in the general welfare and invalid “class” legislation (ibid., 10-12, 199). First, Gillman explains the jurisprudential context that pre-existed the Lochner era. He reviews the Nineteenth Century Jacksonian preoccupation with political equality and government neutrality (ibid., 33-45). These preoccupations, Gillman shows, were even more deeply rooted in the founders’ distrust of factional politics and their idea of a commercial republic with an expanding frontier that would prevent social dependence (ibid., 22-33). This history created the real context in which Nineteenth Century state judges operated. Within this context, it was a well-established jurisprudential principle that “the state shall give all alike the benefit of equal laws without favoritism or partiality” (ibid., 45-60). Gillman then shows how the post-bellum Supreme Court adapted these earlier notions of political 61 equality and neutrality from state courts to a new historical context of intensified capitalist exploitation and class inequality (ibid., 61-99). Second, Gillman explains the doctrinal underpinnings of Lochner-era police powers jurisprudence. He explains the Court’s continuing preoccupation with maintaining a principled distinction between legitimate health and safety regulations, which applied to all equally, and illegitimate social and economic legislation, which favored the working class (ibid., 101-46). This doctrinal preoccupation continued in the face of a “new realism,” which provided increasing evidence of the social dependence, not to mention the unequal physical dangers, inherent in late Nineteenth and early Twentieth Century industrial capitalism (ibid., 132-46). Third, Gillman explains the demise of Lochner-era police powers jurisprudence. He reviews the increasing challenges to this jurisprudence as the Twentieth Century progressed, including the rising number of elites who supported social and economic reforms like the minimum wage (ibid., 147-92). Finally, he notes how the central doctrinal distinction between class politics and general welfare legislation eventually collapsed under the weight of these new social facts, requiring the Court to develop a new jurisprudential context within which to conceptualize the bounds of legitimate legislative authority (ibid., 190-93). The concept of the law-judge relationship animating Gillman’s study is a perfect example of the New Institutionalist focus on the internal relationship between a judge’s legal consciousness and a judge’s decisions. Because of the jurisprudential 62 categories established by previous generations of judges, Gillman concludes, it was almost inconceivable to judges that legislation protecting the rights of one class of people over another could be valid. This was true despite a great deal of historical and social evidence that belied the assumptions upon which the jurisprudence rested. 6 Throughout the book, Gillman recounts how judges “struggle[d] to maintain the coherence and integrity of a constitutional ideology . . .” (ibid., 10-11). He highlights how “federal and state judges shared a common method of evaluating exercises of police powers, and how their decisions were supported by arguments that represented something more than rationalizations of idiosyncratic policy preferences and something different from an ideological commitment to laissez-faire economics or social Darwinism” (ibid., 12). This “something more” and “something different” consists of a sense of fidelity to precedent and other authoritative legal materials: Generally speaking, when judges decide cases they do not feel completely unencumbered by existing legal rules and doctrines. Sometimes they may feel as if they have no choice and at other times feel that as if they have some discretion, but these different experiences are themselves governed by the prevailing assumptions and practices of the legal community. . . . [W]hile the deconstruction of legal materials is important to the extent that it helps us think of these cultural artifacts as historically contingent and potentially unstable ideological constructs, it does not necessarily make them any less meaningful for participants (ibid., 17). 6 Consider, for example, Gillman’s account of how ideological structures like legal doctrines contribute to the social construction of reality: they are “normative models people use to impose order on disorder, to make events or structures comprehensible and behavior meaningful by identifying what is natural or anomalous, important or insignificant, valuable or worthless, legitimate or illegitimate” (ibid., 16). 63 Another example of this kind of “constitutive” New Institutionalist analysis is Elizabeth Bussiere’s (1999, 1997) analysis of the Warren Court’s treatment of welfare rights. One would have thought, she argues, that the Warren Court, considering its progressive protection of the rights of the indigent, 7 might have been willing to take the next step and consider poverty as a suspect class (1999, 156, 171). But the Court balked when presented with such arguments and consistently resisted, for example, constitutionally protecting the substantive rights of poor people to a minimum level of subsistence. The reason, Brussiere claims, has less to do with the inherent character of the American liberal political tradition or shifts in the political balance of power, and more to do with “the institutional dynamics of judicial decision-making” and “the intellectual bases of legal doctrines . . .” (ibid., 156-57). Bussiere uses Shapiro v. Thompson (1969) to explain the way in which the Warren Court felt compelled by its previously established case-law to reject the argument that poverty might be a suspect class (1999, 161-67). Shapiro involved three consolidated challenges to residential requirements attached to AFDC programs in Connecticut, Pennsylvania, and Washington, D.C. Welfare rights attorneys had originally argued that such residential requirements were unconstitutional on the grounds that they discriminated people on the basis of wealth. During the 1967-68 term, the Court — in an opinion authored by the Chief Justice 7 See, e.g., Griffin v. Illinois (1956) (invalidating transcript fees for indigent criminal defendants: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has”); and Harper v. Va. Bd. Of Election Comm’rs (1966) (invalidating poll taxes as “invidious discrimination” against the poor). 64 himself — rejected such an argument, however “searing to the conscience” the result. Warren said that the justices’ “best instincts” could not “be [their] guide” in determining whether the requirements violated the Constitution, because the laws were merely budgetary and not a matter of protected rights (ibid., 161-62). When the Court nevertheless scheduled re-argument of the case during the next term, the attorneys decided to construct a new, more modest, theory of how durational residence requirements discriminated against out-of-staters in violation of their right to interstate travel (ibid., 162-63). According to Archibald Cox, who argued the case on behalf of the appellants, “the nagging legacy of the Lochner-era liberty of contract decisions — the lingering consensus that the Court has no authority to define the substantive content of economic justice” made the Court averse to basing the Shapiro decision on a fundamental right to subsistence (ibid., 163). According to Bussiere, Cox’s new interstate travel argument persuaded Justice Brennan to bolt Warren’s majority and apply strict scrutiny rather than the rational basis test and, ultimately, persuaded the new majority to strike down the requirements (ibid., 163-65). The underlying claim was transformed from a fundamental right to welfare to the right to be free from burdensome governmental intervention in moving from state to state. This latter claim was based on a more familiar and more established right, anchored in the Privileges and Immunities Clause of the Fourteenth Amendment and the Commerce Clause and the “vision of the United States as a ‘national community’ with open borders” (ibid., 164). Success 65 in Shapiro, Bussiere argues, thus lay in anchoring the decision in more well- established case-law concerning the right of interstate travel, and more familiar ideological language, involving negative liberty and economic opportunity (ibid., 164). Again, this provides a great example of the internal relationship between a judge’s legal consciousness and a judge’s decisions. It was not that the Court could not make any sense at all out of the claim that out-of-state residents had a fundamental right to welfare — the Court was perfectly willing to admit that such an outcome was consistent with their best personal and political instincts. But such a result conflicted with more important legal instincts, built up through years of socialization and legal experience. These socialized instincts told the justices that the result sought by welfare-rights advocates did not make “legal” sense. The existing doctrine shaped the justices very perception of, and reasoning in, the case before them (ibid., 157-58). When the facts of the case were analyzed according to this intuitive sense of what was permissible to say in the context of Constitutional Law, holding that people had a fundamental right to welfare was, quite literally, out of the question. As Bussiere contends: “even while introducing new constitutional and statutory interpretations, the Warren Court operated within a framework of ideas created by the Roosevelt Court that constrained its ability to ‘constitutionalize’ welfare” (ibid., 157). The brilliance of Cox’s re-vamping of his legal theory lies in the fact that he recognized, consciously or not, the constitutive function of legal 66 doctrine and recast his claim in a way that allowed the justices to reach a favorable result in a way that was legally permissible: Far from acting on their liberal “instincts” unrestrained by precedents, the Warren Court justices were so inhibited by their fidelity to existing doctrinal constructs that . .. a majority of the justices turned decisively against those very “instincts” . . . and doomed to oblivion the notion of a constitutionally based right to welfare (ibid., 157). While these analyses of judicial decisions in different historical eras provide brilliant insights into the outcomes of judicial consciousness in actual cases, they do not give us much information about the formation of that consciousness or what that that consciousness feels like from the judge’s perspective. Moreover, while these studies provide good snapshots of particular instances of judicial decision making motivated by judicial consciousness of doctrine and other factors, they do not focus on other, more instrumental, ways in which judge’s might see law as integral to their institutional mission vis a vis other political actors. 8 2. Instrumental Scholarship Instrumental, or Rational Choice, New Institutionalism focus precisely on this question, examining the ways that judicial and extra-judicial organizational structures influence judges to use law as a practical tool. These scholars, whose intellectual pedigree can be traced back at least as far as Walter Murphy (1964), generally rely on qualitative analysis of judges’ personal papers and official court 8 Other scholars applying historical interpretive methods to the question of whether Supreme Court Justices follow their political or legal instincts have come to opposite conclusions. That is to say, these other scholars have concluded that the justices sometimes follow their political preferences, or at least those of the governing electoral coalition, even when their best understanding of the available legal materials does not support it. (see, e.g., Klarman 2002; Powe 2000). 67 records and docket sheets, as well as on statistical analysis of judicial votes. They agree with Attitudinalists that judges are concerned primarily with the achievement of their policy preferences, but they argue that the achievement of these preferences is constrained by relationships among judges, the relationship between the court and other levels or branches of government, and the relationship between the court and the public generally (see Maltzmann, Spriggs, and Wahlbeck 2000, 14-15, 17-21; Epstein and Knight 1998, xii, 10-11, 112). Based on these constraints, strategic scholars develop formal models and empirical tests designed to show that judges act strategically to achieve their goals. Through the use of the term, “strategic,” these scholars mean to capture and explain a wide variety of judicial actions: judges act intentionally and optimally toward their objectives and rank alternative courses of action according to their preferences and expected outcomes (Epstein and Knight 1998, 10-11), judges bargain over legal and policy issues (ibid., 58-79), judges make predictions about how other institutional actors will react (ibid., 79), and judges send signals to each other and to other institutions in order to affect outcomes (Maltzmann, Spriggs, and Wahlbeck 2000, 55, 93, 124, 147-48). The reason for this behavior, Epstein and Knight contend, is purely instrumental. The justices want not just to achieve their policy preferences, but to do so in a way that members of society and other judges will recognize and accept. This scholarship is broadly consistent with Richard Posner’s (1999, 1995, 1991, 1990) pragmatist conception of judging. Posner claims that judges are 68 responsible political agents who use a variety of strategies and tools to fashion a reasonable, future-oriented result that is consistent with their policy preferences. The law is conceived of not as an external thing that can be used or not used, but as a practical activity that is the sum total of a variety of activities that judges engage in by virtue of their offices. 9 There are two prominent strategic studies of the Supreme Court judging process that ably illustrate this point: Epstein and Knight’s (1998) analysis of “the choices Justices make” in the course of deciding a case, and Maltzmann, Spriggs, and Wahlbeck’s (2000) analysis of “the collegial game” of Supreme Court opinion formation. Epstein and Knight construct a strategic account of judicial decision making based on two samples of cases from the Burger Court, as well as the public and private records of justices on the Court during that time (1969-83) (1998, xiv- xv). The account is based on a few simple propositions about the way the justices’ choices are constituted by the goals of the institution and the tactics used by the justices to achieve these goals. First, the justices have two primary goals: the attainment of policy preferences and institutional legitimacy (ibid., 10-11). Second, the justices are “strategic” in the achievement of these goals; that is, they act intentionally and optimally toward their objectives and rank alternative courses of action according to their preferences and expected outcomes (ibid.). Third, the 9 This “activity theory” of law can be traced back to Holmes’ “predictive theory” of law, which says that law is a prediction of what judges will do when confronted with a specific set of facts (Posner 1990, 20-21, 225; see also Holmes 1897, 461). 69 justices’ interactions are structured by the institutional context, which includes the preferences and choices of other justices, other branches of government, and the people (ibid., xii, 10-11, 112). Epstein and Knight are careful to distinguish this strategic account from alternative “legalist” accounts, which see judicial activity as motivated through and through by adherence to precedent and the development of legal doctrine. Although Epstein and Knight do find some evidence that justices are “more than occasionally motivated by impartial principles,” they find that reliance on such goals fails to account for many cases where their activity seems to be inconsistent with such principles. They find that the pursuit of policy goals has a generalizable character that pursuit of legal goals lacks in explaining judicial behavior (ibid., 44). However — and this is a very significant caveat — Epstein and Knight also find that legal factors can constrain justices from acting on their personal policy preferences. . . . In other words, justices have a preferred rule that would like to see established in the case before them, but they strategically modify their position to take account of a normative constraint — such as stare decisis — to produce a decision as close as possible to their preferred outcome (ibid., 45). 10 The reason for this behavior, as noted above, is purely instrumental. The justices want not just to achieve their policy preferences, but to do so in a way that members of society will recognize and accept. If the justices radically alter the existing rules to fit their preferences, Epstein and Knight argue, the community may 10 For example, Epstein and Knight find that 25 % of the suggestions contained in bargaining memos and the remarks made at conference centered on precedent (ibid., 45, 79). 70 not adapt and no preference will have been achieved. Since “a general norm favoring precedent exists in society at large . . . [j]ustices who seek to establish legal rules that will engender compliance in the community will give priority to to those rules that are consistent with a norm favoring respect for precedent, if they believe that such a norm exists” (ibid.). Thus, respect for precedent and the desire to reach principled decisions is a secondary goal of justices, not because the justices are “motivated to be ‘good’ justices,” but because the justices are motivated primarily to achieve their policy preferences (ibid.). The justices act to achieve these primary and secondary goals by using a variety of instrumental strategies. Epstein and Knight outline four such strategies (ibid., 57). First, justices bargain over legal and policy issues (ibid., 58-79). For example, they sometimes threaten to dissent from a denial of certiorari and thus change the decision of the Court (ibid., 65). They also bargain over legal and policy issues in opinions by circulating “issue bargaining statements” or “separate writings,” over a quarter of which focus on legal precedent (ibid., 70). 11 Second, 11 An example of an “issue bargaining statement” is the following memorandum written by Justice Brennan to Justice White regarding United Jewish Organizations of Williamsburgh v. Carey (1977): I’ve mentioned to you that I favor your approach to this case and want if possible to join your opinion. If you find the following suggestions . . . acceptable, I can, as stated in the enclosed concurrence, join you. I’m not generally circulating the concurrence until you let me have your reaction (ibid., 69). An example of a “separate writing” is the following memo written by Justice Burger to Justice White in the same case: I hope to circulate a memo articulating my problems with any fixed “numbers” which seem to give tacit approval to a “quota” concept. We unanimously rejected racial balance in school desegregation . . . and I fear the proposed disposition seems counter to that spirit. I will have my thoughts ready this week (ibid., 70). 71 justices are “forward-thinking” actors, who make particular choices based on what they think will happen in the future (ibid., 79). They use forward thinking, for example, by issuing “aggressive grants” and “defensive denials” of certiorari, which depend on calculations regarding the expected actions and reactions of other actors (ibid., 79-88). Third, justices manipulate the agenda of issues to be discussed in opinions, steering the attention of other justices toward some issues and away from others (ibid., 88-95). For example, during the conference over Craig v. Boren (1976), Chief Justice Burger unsuccessfully tried to steer the discussion toward standing issues and away from issues of gender discrimination. While this attempt was unsuccessful, many other attempts are successful. Finally, Epstein and Knight claim that justices engage in “strategic opinion-writing” (ibid., 95-107). That is, justices often write opinions in ways that either differ from their sincere preferences in order to attract other justices or that favor the best possible outcome and avoid less favored alternatives. Finally, Epstein and Knight claim, the justices’ strategic pursuit of their legal and policy goals is constrained by a complex institutional framework that structures the social interactions between justices, between the Court and other political branches, and between the Court and the American people (ibid., 112-75). The constraining nature of this institutional framework is based on two conditions: the rules must be widely known and generally accepted by members of the legal community, and there must be good reason — based on a combination of 72 information and sanctions — for the justices to think that other actors will comply (ibid., 115). Epstein and Knight discuss four such institutional rules that constrain the activity of justices in this way: the Rule of Four and the procedures for opinion assignment, which structure interactions between justices, separation of powers/checks and balances, which structures interactions between the Court and other branches, and societal beliefs about the rule of law and the corresponding role of the Supreme Court, which structures the relationship between the Court and the public (ibid., 117, 138). This is a great example of a more instrumental account of the relationship between law and judging, which is different in several important ways from the constitutive accounts described above. One way this can be seen is in the way Epstein and Knight analyze the uses of legal doctrine. Even though these scholars concede that legal doctrine takes on a life of its own, so that it is often valued by judges for its own sake, they posit that this devotion to doctrine serves other ends. For example, adherence to legal doctrine reinforces the societal legitimacy of the Court by making the Court appear neutral. Society’s fundamental belief in the rule of law sets up an expectation that the Court will follow stare decisis, and Justices will take this expectation into account when deciding cases (Epstein and Knight 1998, 164, 172, 177). Further, Justices take into account the presence and power of other institutional actors, including the executive and legislative branches of the national government, as well as state governments. This leads them to strive to 73 maintain the proper inter-institutional relationships of checks and balances and separation of powers. (1998, 138-75). Another way in which Epstein and Knight’s account of the relationship between law and judging can be seen as more instrumental has to do with the actual strategies used by the Justices. These strategies include things like bargaining and exchange (Epstein and Knight 1998, 58-79) and the use of persuasive rhetorical strategies (Epstein and Knight 1998, 95-107). In contrast to more constitutive scholars, Epstein and Knight focus less on the connection between legal doctrine and judicial consciousness and more on the connection between the Justices’ policy preferences and the practical activities they engage in (see, e.g., 1998, 12 n. 13, citing Posner 1993; see also Epstein and Knight 1998, 45). 12 They concede that legal doctrine is very often bound up with policy preferences, going so far as to say that “respect for [precedent and legal doctrine] is dictated by norms that structure judicial choices” (ibid.). But they ultimately see legal precedent as merely one tool among many that judges sometimes use to achieve their goals. They consider it practically useful insofar as it sets up a framework of reasonable expectations (Epstein and Knight 1998, 182). But they see other tactics, such as forward-looking, pragmatic decision-making and rhetorical sophistication, as the primary ones (ibid., 12 “What [the citing of cases] means is that precedent, the intent of the Framers, and so forth, play a role in Court decision making; respect for such factors is dictated by norms that structure judicial choices. What it does not mean is that the desire to reach principled decisions is a primary goal of the justices. While some justices may be motivated to be ‘good’ justices, we think it is difficult to maintain a proposition suggesting that this idea is in the minds of most justices in most cases” (Epstein and Knight 1998, 45). 74 95-107). The result is a kind of “activity theory” of law, which sees law as merely the long-term product of a variety of short-term actions by judges on specific issues (Epstein and Knight 1998, xii-iii). Maltzmann, Spriggs & Wahlbeck (2000) have a narrower strategic account of judicial decision making that focuses on the opinion-writing process at the Supreme Court. They analyze the collegial interactions between the justices at four stages of the process: opinion assignment, the writing of the first draft, responses to the first draft, and the drafter’s reply to those responses (ibid., 6). Contrary to the popular notion that the Supreme Court consists of “nine little law firms,” they posit that each stage of the opinion process is constituted by institutional rules, procedures, and norms that structure the justices’ ability to convert their policy preferences into legal doctrine (ibid., 14-15). From this theory of strategic interaction, they derive two postulates regarding judicial behavior: the outcome postulate, which claims that justices prefer outcomes that fit their political preferences, and the collective decision making postulate, which claims that justices act to achieve their preferences by basing their decisions, in part, on the actions of their colleagues (ibid., 17). From these postulates, Maltzmann, Spriggs, and Wahlbeck derive two sets of empirical hypotheses. First, consistent with the outcome postulate, they expect a justice’s policy preferences to guide the decisions she makes in a given case, subject to three types of institutional conditions: the level of coincidence of interests in the same policy objective by other justices, the level of indifference to that policy 75 objective, and the level of opposition (ibid., 19). Second, consistent with the collective decision making postulate, the authors expect justices to take into consideration the preferences and choices of their colleagues in the same case, including those made known through tentative votes and the circulation of memos and those implied from the level of past cooperation in different cases (ibid., 19-21). In addition, the authors incorporate four non-strategic, but rational, “contextual factors” that may shape a justice’s choices independently of their preferences: the importance of the legal issue or case, the conceptual or factual difficulty of the case, whether the justice occupies a leadership position, and the justice’s workload (ibid., 21-24). The authors then conduct empirical tests of these hypotheses using data from the Burger Court that includes: the justices’ personal papers, court records, and statistical data (ibid., 26-27). They find, in general, that Justices both send and respond to strategic signals at all stages, producing opinions that reflect not just individual preferences but institutional rules and norms. At the “opinion assignment” stage, they find that “opinion assignors systematically use their power of assignment to further their policy goals, while simultaneously responding to strategic and contextual constraints (ibid., 55). For example, Chief Justice Burger tended to assign opinions to moderates when the conference coalition was small, which is conditionally consistent with the strategic constraint of ideological distance (ibid.). At the “response to draft opinions” stage, the authors find that justices spend 76 a great deal of time and energy trying to influence the shape of the final opinion in a way that is consistent with their preferences, but also with the collegial environment (ibid., 93). The course of action for the Burger Court justices was influenced by many of the strategic and contextual factors hypothesized, including the justice’s ideological distance from the author and the majority coalition, the choices made by other justices, the size of the initial coalition, and the level of past cooperation among the justices (ibid.). At the “decision to accommodate” stage, the authors find that justices act strategically in the crafting of initial drafts and majority opinions (ibid., 123). Opinion authors not only size up the strategic environment and respond to their colleagues accordingly, but they also exhibit a willingness to repeatedly update their choices based on signals given by their colleagues during the drafting stage (ibid., 124). Finally, at the “coalition formation” stage, Maltzmann, Spriggs, and Wahlbeck find that opinion coalitions come together in a dynamic and interdependent way that is consistent with their theory. Not only does the joining of a coalition depend on the extent to which the draft opinion coincides with the joining justice’s preferences, but justices continually take into account strategic signals such as the changing size of the coalition, the bargaining tactics adopted by other justices, and the cooperative relationship the justices have with each other (ibid., 147-48). Maltzmann, Spriggs, and Wahlbeck’s analysis of the collegial game played on the Supreme Court is even easier to contrast with the constitutive approach. The authors are explicit about the fact that they “do not systematically test the extent to 77 which the decisions and actions of justices are shaped by legal considerations, rather than the collegial game” (ibid., 153). The overall thrust of their findings is that Supreme Court justices care about the substance of their legal opinions primarily because there is a correspondence between the ideological substance of legal doctrine and the Justices’ political policy preferences. Further, the Justices care about the law because it has “implications for the behavior of private parties and decision makers in all three branches of government” (ibid., 5). These implications set up a framework of reasonable expectations for private parties and governmental officials, which carries with it both information and sanctions for non-compliance (ibid.). Finally, just as with Epstein and Knight’s study, the strategic interaction takes place with the aid of certain practical tools, such as the ability to bargain and exchange, the ability to use rhetoric to persuade, and the ability to use forward thinking. This “strategic” approach to judicial decision making is a growing phenomenon in the field, as scholars apply the basic assumptions of rational choice to both the Supreme Court and lower courts (see generally Epstein & Knight 2000). For example, at the level of the federal appeals courts, scholars have focused on the state of the law and the fear of en banc or Supreme Court reversal as possible institutional factors that might influence judicial decisions (Reddick 2001, 12; George 1998; Songer, Humphries, and Sarver 2000; Van Winkle 1996). More recently, other scholars have focused on the hierarchical institutional environment 78 within which intermediate federal judges operate, including the threat of reversal by the Supreme Court, as a factor that might influence them to balance their policy preferences with the desire for legal accuracy (Scott 2006). These empirical studies thus illustrate the utility of the instrumental components of the internal-institutional account of law and judging. Unlike the purely constitutive approach illustrated previously, these instrumental components counsel a focus on other goals of judicial action besides purely legal ones and other ways to achieve those goals besides pure doctrinal argument. However, these instrumental components can still be classified under the larger New Institutional account of judicial consciousness. Like their constitutive counterparts, strategic scholars do not divorce legal doctrine from political preferences. Unlike Attitudinalism’s external account of law and judging, these strategic accounts leave open the possibility that judges can be internally motivated by both legal doctrine and political preferences at the same time. Even if the strategic approach does not focus on how the judicial state of mind is deeply constituted by legal doctrine, it does seem to share with other New Institutionalists a focus on how judges experience and act out their relationship to the law. The “external” and “internal” accounts of judicial decision making reviewed in this chapter are summarized below in Table One: 79 Table 1: External and Internal Approaches to Judicial Decision Making Theoretical/ Analytic Forebears Operationalization of Law Evidence of Law’s Effect Measure of Law’s Effect Finding External: Behavioralism C. Herman Pritchett (1948); Glendon Schubert (1958, 1959, 1963, 1965) Externally imposed constraint Votes; Ideological scores Statistical Correlation of Political Directions of Votes and Decisions with Evidence of Political Attitudes No Significant Determinative Effect Internal: New Institutionalism -- Constitutive --Instrumental Ronald Dworkin (1996, 1986, 1985, 1982a, 1982b, 1978) Walter Murphy (1964); Richard Posner (1999, 1995, 1991, 1990) Socially Constructed State of Mind or Practice Organizationally- Situated Pattern of Action and Thought Historical Documents; Judicial Papers; Opinions Judicial Papers; Docket Sheets; Court Records; Final Votes Re-creation of Lived Experience Through Historical Explanation, Case Studies; and Doctrinal Analysis; Formal Modeling of Individual and Organizational Relationships and Actions Significant, Non- Determinative Effect Significant, Non- Determinative Effect 80 D. The Need for a More Internal Approach to Judicial Decision Making In contrast to the “external” behavioralist tradition, New Institutionalism is usefully “internal” in two distinct ways: first, because it operationalizes law as an internal part of a judge’s institutional consciousness and, second, because it attempts to study the relationship between law and judging internally, through evidence of the lived experience of judges grappling with their institutional roles and values. The constitutive approach exemplified by Gillman and Bussiere relies on close textual analysis of legal opinions, examination of historical trends and documents, and the study of actual legal arguments made to the Court in order to illuminate a judicial state of mind concerned with fidelity to law. The research conducted under the heading of the strategic approach similarly includes analysis of legal opinions, historical records such as docket sheets, and personal records such as journal entries. This evidence is extremely valuable in helping us to reconstruct the thought-process that lies behind judicial decisions. Even given its advances, however, the empirical research conducted by New Institutionalists is still too external. That is to say, New Institutionalist accounts still tend to rely on evidence that only indirectly probes judicial consciousness. More than anything else, the study of human consciousness requires the study of the creation of “inter-subjective meaning” (see Taylor 1971). Humans create meaning through their interactions with other people, and through their interaction with the institutions and other environments in which they find themselves. The whole 81 premise of New Institutionalism, as articulated by Rogers Smith (1989) is the notion that the relationship between law and judging must be understood in this way: as a mutual interrelation between judges and their institutional environment. This relationship necessarily includes the judge’s creation of inter-subjective meaning, either through the constitutive effects of legal doctrine or through the instrumental and strategic relationship between judges. But there is only so much inter-subjective meaning one can glean from cold documents and historical records. For example, Gillman and Bussiere build convincing cases for the argument that Supreme Court justices, during the time periods each studied, were motivated by a sense of fidelity to legal doctrine. But even the most sophisticated interpretive techniques cannot wring from opinions, letters, or other documentary evidence an answer to the question of what those documents really meant to their authors. Of course, one can do better or worse historical scholarship, and Gillman and Bussiere are both very good at analyzing their evidence and drawing reasonable conclusions from it. In the end, however, it would be helpful to at least supplement this research with more direct evidence of judicial consciousness in the form of conversations with actual judges. Similarly, even though the rational choice scholars draw heavily on the justices’ personal papers and docket sheets, there are obviously times when this evidence could be supplemented through the questioning of actual judges. My point here is relatively straightforward and uncontroversial: it is notoriously difficult to glean evidence 82 about inter-subjective meaning from inanimate objects, and research based on interviews with judges might be a useful alternative way of collecting such data. Finally, when compared to Behavioralist studies correlating external evidence of votes with largely external evidence of preexisting ideology, the New Institutionalist studies discussed here continue to come up short in terms of methodological rigor. Leading New Institutionalists have urged their colleagues to “be as clear as possible about the theoretical and evidentiary basis for claims about law’s influence,” as well as “the circumstances under which they would acknowledge the existence of extralegal influences” (Gillman 2001, 496). However, it is still too often hard to tell what evidence would confirm or deny New Institutionalist claims that law constitutes a strong internal feature of judicial consciousness. This is because, as I have argued here, scholars in this tradition are still too focused on analyzing the products of judicial thought and action, rather than observing those thoughts and actions more directly. Until New Institutionalists can gather such evidence in a manner that rivals the methodological rigor of Behavioralist studies, it is improbable that they can make headway in contradicting claims that law serves only a rationalizing function for judges. E. Further “Inside the Judicial Mind”: The Value of Judicial Interviews Some judicial scholars, though not specifically associated with New Institutionalism, have focused generated good data reflecting judicial consciousness and motivation in a rigorous and direct way. The use of in-depth interviews and 83 other ethnographic tools as a systematic way of exploring social phenomena dates back at least as far as British anthropology in the latter Nineteenth Century (see Emerson 2001, 3). Modern scholars utilizing ethnographic interviews, however, can trace their origins more directly to the work of Bronislaw Malinowski (1922), who combined intensive, prolonged, observations of the daily life of New Guinea natives with dialogical interviews designed to uncover native understandings of their own lives (Emerson 2001, 6). This type of research was picked up and extended by sociologists in the early- to mid-Twentieth Century, such as Booth (1902), Park (1915), Blumer (1939), and Whyte (1943). By the 1970s, ethnography, or “fieldwork,” was strongly oriented toward “identifying and describing the subjectively meaningful words of others” (Emerson 2001, 17). Scholars focused on sustained “face-to-face proximity” and “faithfully representing the meanings – the phenomenology – of the people in the circumstances [the fieldworker] seeks to understand” (Lofland 1972, 4; see also Lofland 1971). Perhaps the most noteworthy attempt to apply such methodology specifically to judges is H.W. Perry, Jr.’s Deciding to Decide (1991), which analyzes agenda setting at the United States Supreme Court. Perry combines informal, dialogic interviews of five sitting Supreme Court Justices, sixty-four former clerks (from all nine chambers), seven D.C. Circuit Court of Appeals judges, four U.S. solicitors general, four attorneys in the Office of the Solicitor General, and one Supreme Court employee with statistical analysis of a sample of cert. petitions (ibid., 9-11). The 84 result is a “process model” of the Court’s certiorari decision making process, which posits that petitions generally go through one of two “gates” that lead to one of two decision modes: an “outcome mode” and a “jurisprudential mode” (ibid., 16, 278). These different modes provide “a helpful way of addressing the question of whether or not the justices act ‘politically’ or ‘legally,’ ‘ideologically’ or ‘judge-like’” (ibid., 274). “Outcome mode” refers to a Justice’s behavior when “he cares strongly about the outcome of the case on the merits at the time of the cert. decision” and is therefore dominated by “strategic considerations” in his cert. vote (ibid.). In other words, in this mode, the Justice is motivated primarily by a desire to convince at least three other Justices to vote to accept the case, and thus uses a variety of tactics to secure that outcome. “Jurisprudential mode” refers to a Justice’s behavior when he “does not feel particularly strong about the outcome of the case on the merits” and therefore “makes his decision based on legalistic, jurisprudential types of considerations such as whether or not there is a split in the federal circuit courts of appeals” (ibid.). Perry concludes that, during the agenda-setting process, the Justices are predominantly concerned with jurisprudential factors, and that these factors are much more important than strategy or political preferences. What is most significant about Perry’s analysis is the way in which he deduces his conclusions from judicial interviews. In order to gather the information that supports his characterization of the two decision modes, Perry asked the Justices probing questions about their motivations and how their motivations affected their 85 actions during cert. voting. This type of research provides a way to probe more deeply into this important connection than historical interpretive studies. Even at the highest level of the judiciary, it is possible and perhaps even valuable to use interviews to probe participants for their views about the relative effects of the law versus other more ideological variables. David E. Klein’s (2002) study of decision making by judges on U.S. Courts of Appeals in cases involving unsettled issues of law also uses interviews to probe issues of judicial motivation and consciousness. Klein supplements his analysis of cases with information from interviews with two dozen judges. He uses this interview data to “provide theoretical grounding for hypotheses about judges’ behavior, tests of some of the hypotheses, and additional context for understanding various findings” (ibid., 8). He asked judges about their motivations, work styles, workload, attitudes toward and usage of precedent, and other judges’ reputations. Klein found the interviews helpful in delivering contextually rich insights into decision making and helpful reflections on the validity of his previously developed theoretical assumptions, as well as uncovering “intriguing and significant differences among judges” (ibid.). On the specific issue of the relative extent to which judges are motivated by legal and political factors, Klein concedes that his study “does nothing to undermine the widely held position that policy preferences matter a good deal to judges” (ibid., 138). This conclusion is drawn mostly from interview data indicating that the judges 86 “cared about the outcomes of the cases they decided” (ibid.). Nevertheless, Klein also concludes “that legal goals, too, have a real effect on judges’ decisions” (ibid.). For instance, judges consistently respond to the prestige and reputation of fellow judges when deciding whether to follow their lead in an unsettled area of law. After explaining away alternative explanations, such as time-saving and socio-institutional advancement, Klein concludes that the primary reason judges do this is their concern for making “legally sound decisions” (ibid., 139). Klein cites several other factors that seem to point in the direction of legal, rather than political, influences. For example, he cites his “finding that initial dissents are associated with subsequent rejections of a rule” as pointing in the same direction (ibid.). Although he concedes that there may not be a causal link between legal motivations and this particular phenomenon, he argues that “it is still easier to explain it with legal goals than with policy goals” (ibid.). Further, Klein cites evidence of the fact that circuit judges look to the rulings of other circuits when deciding cases of first impression. Although there may be political reasons for such action – such as the existence of a preference to stay within the mainstream of political and institutional opinion on a given issue – but he ultimately concludes that the most likely explanation is “the desire to maintain clarity and consistency in the law” (ibid., 140). These findings are important, Klein argues, not because they establish that legal considerations may sometimes play a role in federal circuit court decision 87 making. Indeed, even Attitudinalists would concede this point, especially at this level of the judiciary. Nor does the evidence show that law acts as the kind of external legal constraint often posited and rejected by behavioralists generally. Rather, what is significant, according to Klein, is evidence that judges pursue “legal goals.” The fact that judges actively pursue legal goals, rather than merely subordinate their preferences to existing legal rules, means that they may still actively pursue particular outcomes. But the reason they do so is because they care about the soundness, clarity, and legitimacy of the law (ibid., 141). Moreover, the fact that Klein discovers the judicial pursuit of legal goals in the precise institutional setting where Behavioralists argue it should not be prevalent – a lower court where judges have ambition for higher office, do not control their own docket, and are subject to reversal by a higher court (ibid., 142, citing Segal and Spaeth 1993, 69-72) – means that New Institutionalists might be right that legal goals are widely constitutive of judicial behavior. Like Perry, Klein provides some valuable internal evidence of the legal constitution of judicial consciousness for many of the reasons just discussed. However, Klein only partially focuses on legal goals, spending much of his time focusing on other goals that might or might not be relevant, such as workload and timeliness. He grounds his study largely in the goal-motivated literature advanced by Baum (1997) and Gibson (1983). While he addresses the Behavioralist-New Institutionalist controversy (ibid., 16), he does not focus on the internally constitutive 88 nature of the judge’s institutional consciousness. It is one thing to say that judges act in accordance with certain legal goals. It is quite another thing to say, as this present study attempts to do, that the pursuit of these goals is so deeply constitutive of the judicial role – at all levels of the judiciary – that to act otherwise would be to act outside of the norms of judging as a social practice. This present study thus builds on Klein’s path-breaking work, but also goes further by probing the depth and intensity of legal goal-pursuit and connecting it with larger questions about the possibility of the rule of law. Another good example of in-depth interviews used to study appellate courts, which seeks to provide evidence of the connection between judicial motivation and judicial actions is J. Woodford Howard. Jr.’s (1981) study of the business, function, and work attitudes of judges on the Second, Fifth, and D.C. Circuits. Howard interviewed thirty-six judges – one retired Supreme Court Justice, ten Second Circuit appellate judges, eight D.C. Circuit appellate judges, seventeen Fifth Circuit appellate judges – and three clerks, one from each of the Second, Fifth, and D.C. Circuits (1981, xix-xx, 304-05). During these interviews, Howard questioned the judges about their consciousness of their institutional role (ibid., 306-10). The following question aptly illustrates this aspect of the interviews: “Some people think circuit judges should be legal innovators, thus illuminating issues for the Supreme Court; others argue that circuit judges should merely apply the law, leaving legal 89 innovation to legislatures and the Supreme Court . . . . What do you think? . . . ” (ibid., 308). Howard also asked a number of other questions relevant to the judge’s perception of the connection between law and judicial decisions. He asked about the effect of factors such as their personal views of justice, the role of precedent whether it is clear and relevant or unclear and uncertain, their view of what the public needs and demands, their view of common sense, their respect for the judgment and ability of the judge or administrator in the case below, and their anticipation of the potential Supreme Court response (ibid., 312). Further, Howard probed the judges’ perceptions of their institutional roles in a way that might be instructive for New Institutionalists seeking an adequate response to Attitudinalist agnosticism about judicial motivation. Because “human behavior is guided by mutual expectations held by the actors in a given position and those with whom they deal,” Howard seeks to use his data to determine “the role perceptions and self-images of incumbent judges” in order to discover “why they decide as they do” (ibid., xxii). He concedes that there are problems with this approach. For one thing, it presents “vexing problems of proof,” since “we can never be sure that what judges think coincides with what they say or do” (ibid., xxiii). Even more serious, “what judges perceive as their duty does not necessarily constitute the judicial role . . . . Neither can we assume that judicial role perceptions actually affect judicial behavior” (ibid., xxiv). Finally, it is often difficult to 90 establish “the boundaries of role-influenced behavior,” because role conceptions are not monolithic and static (ibid.). Instead, they vary by “function, field, and forum” and must often “give” when they collide with other values (ibid.). Nevertheless, Howard argues, despite the inevitable room left for individual variation and change, further interview studies can illuminate the truth by providing “plausible working hypothes[e]s” concerning judicial behavior (ibid.). Henry R. Glick’s (1971) research into the judicial role on state supreme courts also provides a useful model for New Institutionalists seeking evidence of the connection between judicial consciousness and judicial action. Glick interviewed twenty-six of twenty-eight Supreme Court justices from the states of Massachusetts, Pennsylvania, New Jersey, and Louisiana (1971, 16-17). His interview questions were designed to get at the relationships between three things: (1) various political “clientele sectors,” such as political parties, interest groups, professional associations, the public, lower courts, and other state officials; (2) the “judge sector,” consisting of various perceived judicial roles; and (3) judicial decisions (ibid., 9, 17).. Glick constructed his questions in such a way as to “elicit the judges’ own normative expectations or conceptions of what constituted proper judicial behavior” and how those expectations or conceptions might affect their decisions (ibid., 17). Glick is able to classify the four state Supreme Courts on the basis of their perceived roles as either “lawmakers” or “law-interpreters,” and on the basis of their views about the usefulness of precedent. He found that the New Jersey Supreme 91 Court was generally a law-making or policy-oriented court. By contrast, the Louisiana Supreme Court was an adjudicating and law-interpreting court. The other two state courts were distributed somewhere between these two poles. Glick accounts for these differences by tracing judicial consciousness and behavior back to “distinctive traditions and dominant values found in [the] . . . state political systems” (ibid., 151). This shows the potential usefulness of in-depth interviews in uncovering data regarding the relative effects, if not the interrelation, of law and politics in judicial decisions. Like Howard, Glick is quite conscious of the limits of this type of research. While he notes that the interviews were largely successful in providing useful information about judicial roles, he also concedes that reliance on interviews has certain disadvantages. The most significant such disadvantage, he notes, is the often- questionable validity of the judges’ responses. This results, he claims, from judges’ perceived need to protect their institutions from external scrutiny by perpetuating certain myths about judicial objectivity and independence. After outlining this criticism, however, Glick then defends his research against it, arguing, for example, that the variance in the answers given by the judges in his study tends to disprove the notion that the judges were “circling their wagons” against external threats (ibid., 17- 18). While this weakness of interviews needs to be kept in mind, it is nevertheless clear that studies of this nature can make significant advances in uncovering the 92 connection – key to New Institutionalist scholarship – between judges’ perceptions of their institutional mission and aggregate case outcomes. Finally, Austin Sarat (1977) interviewed forty-eight Wisconsin county court judges and observed them in court (1977, 375, 390). His stated purpose was to identify and describe the incentives of trial judges and examine “the way differences in the motivational basis of political participation influence their attitudes and behavior” (ibid., 375). He first asked judges open-ended questions about their political interests and experiences” (ibid., 374). He then asked each judge to choose between various formulations of the relationship between law and judicial discretion (ibid., 392-93), such as the following: The law is only a framework within which the trial judge operates. Day to day decision-making demands that the trial judge exercise his own judgment and discretion. . . . In most cases legal precedent should be adhered to, but there are always exceptional cases in which the trial judge should exercise his own judgment. . . . A trial judge has the duty to apply a settled rule of law even when he knows that it produces an unjust result in a particular case. . . . . It is the ability and temperament of the judge[,] not the rule of evidence and procedure[,] that insure fair trials. . . . . 93 The job of changing the law should be left to appellate judges and legislators. (ibid., 394). During courtroom observations, Sarat used a coding scheme to record things like: the frequency with which a judge asked questions, the frequency with which a judge made unsolicited comments or delivered admonitions, the length of the judge’s charges to the jury, and the manner in which the judge apprised criminal defendants of their rights (ibid., 389-90). On the basis of these interviews and courtroom observations, Sarat constructed a typology of four incentive types: “game judges,” who are activity- oriented and derive satisfaction from the activities and behaviors of judging in and of themselves (ibid., 372-79); “program judges,” who derive satisfaction from working out substantive issues and problems (ibid., 380-83); “status judges,” who are motivated by a desire to prove to themselves and others that they are worthwhile people (ibid., 383-86); and “obligation judges,” who feel an obligation to do the “right thing” in every case by ascertaining the truth and applying the law (ibid., 386- 88). Sarat found that these categories went a long way toward explaining both judicial behavior in the courtroom and judicial attitudes as expressed in the interviews. In the courtroom, Sarat found a continuum of judicial activity corresponding to each type, with game judges at one end engaging in a great deal of activity, and obligation judges at the other end engaging in very little courtroom activity (ibid., 390-91). In the interview responses, Sarat found that the status judges 94 were the most willing to allow for the existence of judicial discretion and law- making, while the obligation judges were the most strict in allowing only minimal uses of judicial discretion (ibid., 393-94). Sarat’s study of trial judges goes to the heart of the New Institutionalist inquiry into the relative effect of the law on judicial consciousness and judicial decisions. While Sarat is more concerned than most constitutive New Institutionalists with the effect of judicial incentive structures, his research and findings point the way toward a way of assessing the connection between a judge’s perception of her personal and institutional mission and the judge’s actual performance on the job. F. Toward a Proper Investigation of Rule-of-Law Attitudes These examples of judicial interview studies provide a useful, but incomplete, model for probing the link between a judge’s consciousness of law and the judge’s decisions. They are useful because they demonstrate a rigorous way of generating good evidence of the internal attitudes of judges concerning law and politics. However, the studies are also incomplete for one major substantive reason: They do not focus precisely on the existence of the attitudes, values, and beliefs necessary for the rule of law to prevail in judicial institutions. Some, like Glick, focus on the importance of institutional traditions and norms in shaping judicial consciousness. But none provides a specific account of how or why these traditions and norms actually shape judicial attitudes toward law. More importantly, none 95 provides an account of which judicial attitudes are consistent with larger rule-of-law norms and which are not. The kind of approach needed to deal adequately with such questions has recently been summarized as a “Depth Hermeneutic” approach (Gibbons 2006, 563). This approach is grounded in the philosophy of Hans-George Gadamer (1996; 1975), Charles Taylor (1991; 1971) and others, and was used famously by anthropologists such as Clifford Geertz (1973a; 1973b; 1976). Such an approach would seek to understand the “language, tacit ideas, inchoate understandings . . . historical background and social practices that help[] constitute [the] way of life” as lived by judges (Gibbons 2006, 563 n. 2). As carefully traced in the political science context by Michael T. Gibbons (2006), the depth-hermeneutic approach arises out of the “Interpretive Turn” that has engulfed and transformed philosophy and the social sciences since the latter half of the Twentieth Century (Gibbons 2006, 564-65; see generally Hiley, Bohman & Shusterman 1991). The “turn” here is away from objective description of human activities from the outside and toward the self- understandings of social actors within their own contexts of meaning (Gibbons 2006, 564). Scholars in this tradition seeks to cast their explanations of social action so that they take into account the “concepts, ideas, and beliefs available to actors,” particularly the connection between the actor’s language and actions (ibid.). They seek to “go beyond the subjective intentions of actors to the intersubjective and 96 common meanings and practices that constitute the background” against which action is understood by the actors themselves (ibid., 566). Studying judges in this way would necessitate judicial interviews as described in previous section, but would go far beyond them. Unlike most of the interview studies described here, a depth-hermeneutic approach would not look “for some external, immutable standard with which to compare competing accounts . . . or different interpretations” of the judging process (ibid., 569). The test of its truth would instead be “the extent to which it helps us understand or articulate the background preunderstanding that is the condition of” a judge’s “coping with or negotiating the world” (ibid., 570). G. Conclusion As outlined in this Chapter, the current literature on judicial decision making is beset by several problems that hamper its ability to speak to the larger issue of the rule of law. Behavioralism and Attitudinalism are the most external of the lot, focusing only on a statistical analysis of votes in certain cases. While this externalism is helpful in showing the correlation between political attitudes and judicial behavior, it is silent about the possible legal and institutional motivations for such behavior. Post-Behavioralism and New Institutionalism have a much more internal focus on the subjective orientations of judges toward traditional judicial and legal norms. However, research in this tradition is still too external because it continues to focus on external evidence of these subjective orientations, such as 97 review of historical records and documents. As outlined in the last section, research based on judicial interviews provides much more promise in uncovering evidence of judicial attitudes and motivations, but has not addressed larger questions involving the social practice of judging and how that practice is connected to the rule of law. Indeed, as argued throughout this chapter, most scholars interested in judicial decision making have failed to connect up their research with larger political issues, such as the rule of law, in any explicit way. What does it matter if judges make decisions by consulting their own individual political preferences, by acting out deeply-held legal norms and values, or by responding to the strategic environment? It matters because the words used by judges, and the words used by scholars to describe judging, are essential parts of our common enterprise of democratic self- governance. If the Attitudinalists are correct, the rule of law may very well be in jeopardy, because judges may be placing their own political preferences above their fidelity to their best understanding of the law. By contrast, if the New Institutionalists are correct, the rule of law may not be in jeopardy, because judges are consistently responsive to the traditions and demands of the political and legal community. However, because Attitudinalist and New Institutionalist scholars are rarely explicit about the significance of their findings for this larger political question, we are forced to speculate. Moreover, this speculation is bound to be especially tenuous since scholars from each camp appear to be working from different assumptions about what it 98 means for judges to follow the law. As indicated above, Attitudinalists are working from the old formalist understanding of law, which requires judges to be objectively constrained by legal rules that constrain their action from the outside (see Gillman 2001). New Institutionalists appear to be working from a Post-Positivist understanding of law as a “social practice” that deeply constitutes the minds, wills, and actions of individual judges from the inside. However, New Institutionalists have been less willing to make explicit their assumptions and predictions about judicial attitudes within that practice. In order then to more effectively make the connection between the New Institutionalist account of judicial decision making and the larger question of the rule of law, we need a more fully developed depth-hermeneutic account of the social practice of judging. Such an account would describe alternative assumptions about the attitudes of judges toward law. That is the precise question addressed by Chapter Three, to which I now turn. 99 CHAPTER THREE: A SOCIAL PRACTICE MODEL OF JUDGING As noted in Chapter Two, many constitutive New Institutionalist and legalist scholars have relied upon the concept of a “social practice” to describe how judges are affected by the law in a subjective, but still compelling, way (e.g., Smith 1988, 91; Gillman 2001, 486 and 1999, 78-86). Further, as outlined at the end of Chapter One, the concept of judging as a “social practice” is essential in propping up the reformulated, post-formalist understanding of the rule of law. However, to date, most scholars have not provided a complete explanation of judging as a social practice. 13 Nor have most scholars fully addressed the connection between the social practice of judging and the rule of law. Finally, no one has attempted to do these things in a way that is sensitive to the self-understandings of judges themselves, as the “depth-hermeneutic” tradition of scholarship urges. In this chapter, I will remedy those defects, first, by providing a detailed history and explanation of the general idea of a “social practice” (see generally Tamanaha 1996, 176-83). This explanation will include a discussion of three key constituent factors of any social practice: community, language, and virtue. Second, along the way, I will apply these abstract ideas to the concrete example of judging in a rule-of-law system. I will illustrate each element of the social practice model with excerpts from the published reflections of several noteworthy judges. Third, in the 13 For a very welcome exception to this trend, see Tamanaha 1996. See also Feeley & Rubin 1998. 100 interests of full disclosure, I will present the published reflections of other judges, whose experiences do not seem to match the assumptions and expectations of the social practice model. This will lay the theoretical groundwork for the empirical study and the resulting data discussed in the remainder of the dissertation. A. The Concept of a “Social Practice” The concept of a “social practice” originates in the traditions of post- positivist philosophy and social theory. In general, this tradition constitutes a strong reaction against the Enlightenment urge to study the human self primarily as a producer of transcendent, disembodied representations of the world “out there.” Many scholars see this Enlightenment ideal – which was never actually a reality – as standing “in the way of a richer and more adequate understanding of what the human sense of self is really like . . .” (Taylor 1991, 307). Drawing on philosophers such as Heidegger, Gadamer, Pierre Bordieu, and the later Wittgenstein, these post-positivist scholars “see the [human] agent, not primarily as the locus of representations, but as engaged in practices, as a being who acts in and on a world” (ibid., 308). What this means, first, is that human thought and action are always situated within the deep context of “understanding.” In other words, every human action flows out of a set of shared conventions about the meaning of various objects that exist in the world (see ibid., 308; see also Patterson 2006, 133). As Charles Taylor describes it, “much of our intelligent action in the world . . . is carried on unformulated. It flows from an understanding that is largely inarticulate” (Taylor 101 1991, 308). While this understanding is only imperfectly evidenced in our representations – our reflective thoughts – it is always evidenced by our “patterns of appropriate action,” which always “conform[] to a sense of what is fitting and right” (ibid., 309). Thus, we are able to “find our way” from place to place within a familiar environment, even though we would falter if asked to draw map or give explicit directions. Thus, we are also able to recognize when people “put a foot wrong,” even though we might not be able to say why or how (ibid.). More concretely, the social meaning represented by the rule of law, “must be conceived as internal to a legal culture, form of life, hermeneutic circle, or interpretive community” because “meaning cannot be conceived as independent of culture, context, or shared understandings” (Fallon 1997, 14). Wittgenstein uses the example of rules and signposts to discuss the relationship between this inarticulate sense of “understanding” and two other things: social “conventions,” and “interpretations”: A rule stands there like a signpost – does the signpost leave no doubt open about the way I have to go? Does it show which direction I am to take when I have passed it; whether along the road or footpath or crosscountry? But where is it said which way I am to follow it; whether in the direction of its finger or (e.g.) in the opposite one? -- and if there were, not a single sign- post, but a chain of adjacent ones or of chalk marks on the ground – is there only one way of interpreting them? -- So I can say, the signpost does after all leave no room for doubt. Or rather: it sometimes leaves room for doubt and sometimes not (1958, § 85) Thus, as Dennis Patterson observes, a rule or signpost itself “provides us no clue as to its proper use. There are as many possible ways of ‘following’ the signpost as 102 there are possible conventions for determining how it is used and what counts as following it” (2006, 134). It is thus not the signpost or the law that dictates our actions in some external way. It is rather our internalized social “conventions” – or ways of acting – that answer Wittgenstein’s questions and tell us how to properly follow the signpost. These “conventions” provide the background in which our “understanding” evolves. It is this social “understanding,” in turn, which produces the need for “interpretation,” which is a “reflective . . . practice we engage in when understanding breaks down” (ibid.; see also Tully 1988, 196). 14 Although different in some key ways (see, e.g., Patterson 2006, 129-30), this view of the relationship between “convention,” “understanding,” and “interpretation” is similar to Gadamer’s hermeneutical view. Reacting against modern theorists, such as Schleiermacher, who had limited the hermeneutical theory to the attempt to “avoid misunderstandings,” Gadamer insists that: Misunderstanding and strangeness are not the first factors, so that avoiding misunderstanding can be regarded as the specific task of hermeneutics. Just the reverse is the case. Only the support of familiar and common understanding makes possible the venture into the alien, the lifting up of something out of the alien, and thus the broadening and enrichment of our own experience of the world (1996, 120). So what is this “understanding” based on? Following Heidegger, Gadamer uses the language of “prejudice” instead of “convention” to reach the same result as 14 Tully describes the same phenomenon in the following way: “Interpretation should thus be seen as one important practice of critical reflection among many, resting comfortably in more basic ways of acting with words (self-understanding) that cannot themselves be interpretations” (1988, 196). 103 Wittgenstein. By “prejudices,” he means the “conditions whereby we experience something” (ibid., 115). For example, how do we know the difference between a “new” idea and an “old” one? “Is not our expectation and our readiness to hear the new also necessarily determined by the old that has already taken possession of us? . . . The nature of the hermeneutical experience is not that something is outside and desires admission. Rather, we are possessed by something and precisely by means of it we are opened up for the new, the different, the true” (ibid., emphasis added). What are we “possessed” by? Certainly it is the background of conventions through which we arrive at understanding. There are three major factors that serve to constitute and foster the social conventions within which judges think and act: “Community,” “Language,” and “Virtue.” B. The Importance of Community 1. Theoretical Concepts As Charles Taylor maintains, the “practices that encode understanding” are not primarily “monological,” but “dialogical.” That is, they are the products not of individual reflections on the world, but of “heavily ritualized” interactions between individual and community. There is a kind of inarticulate “rhythming,” “cadence” and “flow” to these interactions, just as there is when two people are dancing, sawing logs, or engaging in everyday conversation. The result is a kind of “shared agency,” 104 where the people involved are caught up together in a shared sense of mission (Taylor 1991, 310-11). The New Institutionalist conception of institutional “rules” allows us to further flesh out this concept of shared agency. March & Olsen provide a great summary of this conception: “By ‘rules’ we mean the routines, procedures, conventions, roles, strategies, organizational forms, and technologies around which political activity is constructed. We also mean the beliefs, paradigms, codes, cultures, and knowledge that surround, support, elaborate, and contradict those roles and routines” (1989, 22). Behavior driven by such institutional rules consists of the “matching of a situation to the demands of a position” (ibid., 23). An institutional actor proceeds according to “duties,” “obligations,” and “rules of appropriateness,” which are “defined by political and social institutions and transmitted through socialization” (ibid.). Such institutional rules “make it possible to coordinate many simultaneous activities in a way that makes them mutually consistent” (ibid., 24). An institutional community is thus a “network of rules and rule-bound relations sustained by trust, a confidence that appropriate behavior can be expected most of the time (ibid., 38). Picking up on a similar theme, Stanley Fish (1991, 1989, 1980) has posited that all individual interpretation and understanding takes place within the cognitive and social context of a larger “interpretive community.” 15 This community has 15 Of course, as Tamanaha (1996) notes, the notion of a “social practice” and the notion of an “interpretive community” are distinct from one another. An “interpretive community” is a “group[] of 105 “always already” decided what questions are relevant and appropriate, and what is the proper way to address those questions. (Fish 1980, 306). In fact, this community is so constitutive of the individual’s state of mind that the individual is only able to understand an interpretive question through the lens of the community’s preexisting purposes and goals (ibid., 10-11, 14, 306-18; Fish 1989, 8-9, 320-21; Fish 1991, 75): [Y]ou will always be guided by the rules or rules of thumb that are the content of any settled practice, by the assumed definitions, distinctions, criteria of evidence, measures of adequacy, and such, which not only define the practice but structure the understanding of the agent who thinks of himself as a ‘competent member.’ The agent cannot distance himself from these rules, because it is only within them that he can think about alternative courses of action or, indeed, think at all. (Fish 1989, 323, emphasis added). Under this view, the traditional question of how to constrain the subjectivity of the individual interpreter is somewhat irrelevant and superfluous. If the individual’s consciousness is always already a function of the interpretive community, then any constraints are part and parcel of that community. (Fish 1980, 319; 1989, 7-14). Thus, the boundaries of acceptable interpretation are drawn and redrawn not on the basis of individual thought and action, but rather on the basis of persuasion and conversion based on inherently contestable, but no less real, principles. (Fish 1980, 15, 338-55, 365-69; 1985, 167-71; 1989, 25-27; 1991, 365- 66). “[N]either interpretive communities, nor the minds of community members are people bound together by socially-generated and shared clusters of meaning,” while a “social practice” involves “an activity,” which “integrate[s] aspects of both meaning and behavior” (180). Nevertheless, as Tamanaha concludes, “in reality the two are inseverable, since the meaning is what informs the activity, and the activity can be understood only by attending to the meaning” (ibid.). 106 stable and fixed, but are, rather, moving projects – engines of change – whose work is at the same time assimilative and self-transforming.” (Fish 1989, 152-53). One essential conclusion of this post-positivist theory regarding community is that, contrary to the assumptions of behavioralists and Attitudinalists, the “values and preferences of political actors are not exogenous to political institutions but develop within those institutions” (March & Olsen 1989, 40). That is, institutional communities do not operate upon a fully formed consciousness from the outside in. Rather, consistent with the claims of constitutive New Institutionalists, there is a dialectical interplay between an always-developing individual consciousness and the values of the community within which that consciousness is embedded. More specifically then, how does the legal-interpretive community, which constitutes the judge’s state of mind, affect the actual practice of judging? Ronald Dworkin (2006, 1996, 1986, 1985, 1982a, 1982b, 1978) provides us with one pf the most fully developed answer to this question. Dworkin is not fully in agreement with the strong version of Fish’s neo-pragmatism (see, e.g., 1991), or even with the details of the New Institutionalist account of social action. Nevertheless, he presents a vivid picture of the relationship between judicial activity and the legal-political norms and values associated with a liberal democratic political system. Throughout much of his career, Dworkin has concerned himself with the judge’s internal sense of obligation to follow their best sense of what the law requires. As we saw earlier, H.L.A. Hart (1961, 1958) had described judging in part as a relatively mechanical 107 process of applying fixed, determinate external rules – a characterization that is largely consistent with the traditional notion of the rule of law sketched Chapter One. Dworkin forcefully criticized this external view for failing to make sense of the judge’s strong internal obligation to make sense of the legal-political community’s established principles and values. He contends that “legal reasoning is an exercise in constructive interpretation, that our law consists in the best justification of our legal practices as a whole; that it consists in the narrative story that it consists in the narrative story that makes of these practices the best they can be.” (1986, vii). Dworkin’s understanding of this socially constructed relationship between the community and the individual judge can perhaps best be illustrated through his examples of “military orders” and the “chain novel.” In Taking Rights Seriously (1978), he analogizes the judge to an army sergeant ordered by his commander to choose five experienced soldiers for a particular mission, but not fully told about the details of the mission. The relationship between the commander and the sergeant in this analogy is similar to the relationship between the legal interpretive community and the judge – the sergeant and the judge are both greatly influenced by the social and occupational relationship in which the event takes place, but neither’s job is completely determined by their “superior.” In each case, the result is constructed in a process of interaction between the individual and the community. (1978, 31-33). This relationship is even more strongly illustrated by Dworkin’s chain novel analogy. In deciding “hard cases,” Dworkin contends, the judge is acting similarly 108 to the author of a later chapter of a chain novel in which the previous chapters have been written by others. The new author cannot simply make up his own characters and plots, or else the novel will be unintelligible. She must “establish . . . what the novel so far created is.” (1982a, 541-42). Is it a horror story? A romance? A spy tale? What are the motivations and histories of the main characters? Likewise, judges must “read through what other judges in the past have written not simply to discover what these judges have said, or their state of mind when they said it, but to reach an opinion about what these judges have collectively done.” (ibid.). “Each judge must regard himself, in deciding the new case before him, as a partner in a complex chain enterprise of which these innumerable decisions, structures, conventions, and practices are the history.” (ibid., 543). Thus, at least in hard cases, the judge is in constant constructive relationship with the rest of the interpretive community. It is not so much that she must carry out the wishes and values of that community; she is part of the community herself. Therefore, both the process and the end result are very much community enterprises. Nor is this social construction limited to the interpretation of precedents and statutes. Getting us even closer to the political values discussed at the end of the previous section, Dworkin applies the same reasoning to the more general relationship between judges and the political community. When a judge is interpreting the constitution, for example, she must deal with “broad and abstract language,” which judges “apply . . . on the understanding that they invoke moral 109 principles about political decency and justice.” (1996, 2, 7). The judge must understand how the moral principle embodied by the constitutional provision “is best understood” in the context of American political life. (ibid., 2). This understanding, Dworkin claims, is deeply informed by the particular history and language of the principle itself, as well as by the requirement of “integrity.” This sense of “integrity” largely consists of judges “regard[ing] themselves as partners with other officials, past and future, who together elaborate a coherent constitutional morality . . . .” (ibid., 10). Thus, in many aspects of their work, judges are in a constant process of dynamic negotiation between themselves and their community. Anyone who wants to understand the rule of law will thus want to understand this socially constructed relationship. 2. Illustrations From Judicial Experience In published reflections on their decision making, many judges speak of various ways in which the legal-judicial community influences them. Many judges speak of the significant effect of their pre-judicial experiences. As Judge J. Harvie Wilkinson III has observed, somewhat dryly, “[t]o a remarkable extent,” a judge must “draw upon whatever experiences he or she has accumulated before going on the bench” (1989, 787). Similarly, Chief Justice Warren insisted: “It is literally impossible for a person to eliminate from his reasoning process his experiences in life up to that point” (1977, 7). Justice William O. Douglas speaks, more specifically, about the effect of the larger political and social community on the 110 attitudes of the judge: “[C]ommunity attitudes are not without their effect. The Court is not isolated from life. Its members are very much a part of the community and know the fears, anxieties, cravings, and wishes of their neighbors” (1980, 38). A bit more philosophically, Justice Cardozo agrees, pointing to community conventions that are necessary to “give coherence and direction to thought and action” (1921, 12). As he insists, “[j]udges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs . . .” (ibid.). The result is a strong relationship between “the truth without us and the truth within” – in other words, the relationship between community and social conventions on the one hand and individual preferences on the other (ibid., 174). Community or social conventions thus significantly affect a judge’s values, including “moral values,” “values of expediency and convenience,” values of economic or cultural advancement,” and “a host of [other] values” (1928, 54). In perhaps his most famous observation, Cardozo concluded, “[t]he great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by” (ibid., 168). Beyond these general community influences, many judges insist that the primary “tides and currents” influencing judges are those related to legal education and training. Judges frequently, though not unanimously, identify their legal 111 education as having a significant impact on their internalization of the proper judicial values. Many times, these values have to do with “legal reasoning”: “From the beginning of law school, students sense that reason and analysis are sustaining professional values. A special premium is placed on these skills, not simply as a matter of Socratic gamesmanship, but because these skills are the most valued in the . . . law firm, the courtroom, or the classroom” (Wilkinson 1989, 797). But training in legal reasoning is important not merely for individual advancement, but also for the internalizing and acting out of the proper institutional-community conventions, because “[t]he term ‘legal reasoning’ represents the profession’s attempt to differentiate its own process of thought from that of other disciplines” (ibid.). More specifically, according to Judge Wilkinson, the social conventions specific to the legal-judicial community are characterized by: “argumentation, analysis, and critical reasoning,” as well as “the duty to explain, the threat of reversal, and the tradition of dissent” (ibid., 798). Justice Cardozo ties legal reasoning even more explicitly to the judge’s “outlook on life,” formed by the “current” of social convention: “Back of precedents are the basic juridical conceptions which are the postulates of legal reasoning, and father back are the habits of life, the institutions of society, in which those conceptions had their origin . . .” (1921, 19). Beyond the abstract values of deliberation and legal reasoning, judges cite their law school experiences as a major source of their more concrete social and 112 moral commitments. Consider, for example, Justice Franfurter’s reminiscences about the “democratic” values instilled in him at Harvard Law School: I have a quasi-religious feeling about the Harvard Law School. I regard it as the most democratic institution I know anything about. By “democratic,” I mean regard for the intrinsic and for nothing else. There weren’t any courses on ethics, but the place was permeated by ethical presuppositions and assumptions and standards. . . . It was the quality of the feeling that dominated the place” (1960, 19). What mattered was excellence in your profession to which your father or your face was equally irrelevant. And so rich man, poor man were just irrelevant titles to the equation of human relations. . . . If a man was respected, it was because he was very good . . . . This was determined entirely on the basis of your work . . . . If somebody whom the rest of the fellows may dislike has shown the mettle that is his in open competition, that’s that. If he hasn’t shown it, it doesn’t matter whether he is one of the nicest fellows in the world and that his father is Secretary of State (ibid., 27). Justice Franfurter movingly refers to his law school professors and mentors as “[g]iants” who “brought him up” in the community conventions of the law: “These are the men . . . through whom we were made to feel what law is, what its purposes are, what its exactions are, what its possibilities may be. . . . I revere their memory because [of their] dedication . . . to the pursuit of truth, and nothing else . . .” (ibid., 24). Similarly, Justice Thurgood Marshall remembered what he learned in law school about fairness and neutrality in criminal cases: “[W]hen I was in law school, I was taught not that judges were there to see the defendant convicted and punished in every case, but that they were there to see justice done in every case” (2001, 188). This resulted in an “ideal of neutrality,” which Marshall saw as essential to the 113 judicial role, even if not completely attainable in every case” (ibid., 187). Former California Supreme Court Justice Jospeph Grodin stresses the influence of legal realist professors in his law school training, who taught that “judges cannot avoid making public policy,” but that they should do so with “awareness and candor” (1989, 140). Justice Cardozo observed a similar sense of objectivity and neutrality created by legal and judicial training: The training of the judge, if coupled with what is styled the judicial temperament, will help in some degree to emancipate him from the suggestive power of individual dislikes and prepossessions. It will help to broaden the group to which his subconscious loyalties are due . . . . In the end there emerges something which has a composite shape and truth and order (1921, 176). In addition to law school, many judges also discuss how influential their litigation experiences are in forming their overall understanding of the judicial process. For example, Justice Frankfurter recalled his experience working for U.S. Attorney Henry L. Stimson as a big influence on his sense of legal exactness and objectivity: In the first place, having the government as a client you never have to defend a case that you don’t believe in because in cases that had no merit, you’d say, “No, Uncle Sam doesn’t do this.” You don’t’ indict people who oughtn’t to be indicted when the United States Attorney was as scrupulous as Mr. Stimson was! . . . I’m sure he must have had a good deal of influence on the exactions I make of my young men, what my standards are. . . . If you read some of my opinions with regard to criminal prosecutions, that where it all comes from (1960, 48-49). Many judges refer to their pre-judicial job experiences as extremely influential for their perception of the judicial role. For example, Justice Hugo Black refers fondly to his experience as City Recorder in Birmingham, Alabama and his 114 interactions with an influential local judge. Impressed with “his humaneness, his soft, generous, kindly character,” and “his sympathy for the weak and the suffering,” Black remembered that “[h]is unselfish public service inspired me to go and try to do likewise” (1986, 37). As articulated very clearly by Chief Justice Earl Warren, conventions about the proper “administration of justice” are the products of a lifetime of experience and practice: In my more than fifty years of public service, I have been exposed to both processes, the political and the judicial, and to the interrelationship between the two, until I have what I believe is a clear concept of each in the administration of justice. . . . One is not born with such a concept, nor is it acquired overnight. It is an evolving thing that stems from one’s experiences in life and from interpretations he or she gives them . . . (1977, 6-7). This lifetime of learning, however, is not always sufficient to prepare a judge for the demands of the role they are about to enter. As Chief Justice Warren reflects, despite his practical experience as a prosecutor and a governor, he “approached the high office . . . with a profound recognition of [his] unpreparedness to assume its obligations in such an abrupt manner. . . . All of this lack of experience weighed heavily on my mind as I thought about the fact that in a few hours I would be presiding over the highest court in the land” (1977, 275-76). Nor is the community inculteration process, begun in law school, and cultivated through litigation experience, completely consistent. For some judges, like Justice Marshall, the ideals of neutrality and fairness learned in law school had to be 115 tempered by the more practical influence of employers and mentors, in his case, civil rights pioneer, Charles Huston: “Nothing can we get from the executive side of the government, nothing can we get from the legislative side. If we’re going to get our rights, we’re going to get it when the court moves. The court can’t do it all, but the court can move it on. Without court action in the meantime, we’re dead pigeons” (2001, 274, quoting Charles Huston). Another community experience discussed frequently by judges concerns their relations with other legal elites, including coordinate judges. Justice Cardozo observed that a certain amount of “social pressure” is necessary to convert moral norms into legal norms; through judges, the law “will follow, or strive to follow, the principle and practice of the men and women of the community whom the social mind would rank as intelligent and virtuous” (1928, 37). As a result, “[t]he inscrutable force of professional opinion presses upon us like the atmosphere, though we are heedless of its weight” (1924, 61). As former Illinois Supreme Court Justice Walter Schaeffer describes: “One informed class whose opinion carries weight is the legal profession. Its comments, expressed in treatises, law reviews, and other legal publications, always affect the attitude of a court toward a precedent” (2004, 113- 14). Judge Richard Posner has spoken, similarly, of “the threat of searing professional criticism” being “an effective check on irresponsible judicial actions” (1985, 229; see also Wilkinson 1989, 799). Judge Coffin agrees that these things constrain a judge’s behavior, although he says this can only be seen “in the long run” rather than in individual cases (1994, 243). 9 th Circuit Court of Appeals Judge Alex 116 Kozinski describes a similar notion of “judicial self-respect,” which is sometimes affected by others in the wider community: Cynics and academics (a redundancy) tend to belittle this if they consider it at all. Don’t make that mistake. Judges have to look in the mirror at least once a day, just like everyone else; they have to like what they see. Heaven knows, we don’t do it for the money; if you can’t have your self-respect, you might as well make megabucks doing leveraged buyouts. (2004, 77). The influence of court personnel, including other judges and law clerks is also a consistent theme among many judges. Chief Justice Rehnquist recounts his many discussions with his law clerks as a primary influence, helping him to spot and analyze problematic factual and legal issues in a very deliberative way (2002, 261- 63). This is confirmed by Judge Coffin, who recounts his history of “collegial discussion” with clerks, who often challenge him and strengthen his understanding of the law, resulting in a kind of “creative symbiosis” (1994, 174-5; 206-10). The result of this close collaboration, Judge Kozinski maintains, is that the judge is more likely to follow the guiding legal principles: You are surrounded by eager young law clerks far too smart to be fooled by nonsense. . . . You have to give them reasons, and those reasons better be pretty good – any law clerk worth his salt will argue with you if the reasons you give are unconvincing. Should you choose to abandon principle to reach a result, you will not be able to fool yourself into believing you’re just following the law. It will have to be a deliberate choice, and it’s a choice that, by and large, judges tend not to make (2004, 77). By far the most prominent theme concerning the influence of the court community has to do with the interactions between the judges on the same court. For example, Justice William O. Douglas colorfully described the influence of 117 justices on each other during his tenure. While insisting that he himself “never tried to persuade any Justice that I was right and he was wrong,” he claims that he was “probably the one Justice in the long history of the Court never to proselytize” (1980, 88). He describes in detail the “sincere, eloquent, and unrelenting” efforts of Justices Stone, Black, and Frankfurter as “active proselytizers” for their legal positions in various cases (ibid., 18). For example, Douglas recalls one incident when Justice Stone, “the evangelist,” followed him “out into this cold, bitter night onto the stoop outside the library to denounce Colgate v. Harvey [296 U.S. 404]” (ibid.). Douglas also recalls in vivid detail the antics of Justice Frankfurter who, “every waking hour vigorously promoted the ideas he espoused. Up and down the halls he went, pleading, needling, nudging, probing. He never stopped trying to change the votes on a case until the decision came down” (ibid., 22). Nor was Frankfurter’s proselytizing limited to the hallways. “He often came in [to the conference] with piles of books, and on his turn to talk, would pound the table, read from the books, throw them around and create a great disturbance . . . . At times, when another was talking, he would break in, make a derisive comment and shout down the speaker” (ibid.). The goal of these histrionics was to “get a particular Justice’s vote or at least create doubts in the mind of a Justice who was thinking the other way” (ibid.). 16 16 According to Douglas, the table were turned on Justice Frankfurter in the lead-up to the Brown v. Board decision. While Frankfurter initially opposed the overruling of Plessy v. Ferguson on the ground that segregation was constitutional, Chief Justice Warren eventually persuaded him otherwise. But what ultimately changed Frankfurter’s mind was not necessarily the legal merits of the issue, but 118 According to Chief Justice Rehnquist, this sort of active proselytizing – at least at the formal conference – is part of a by-gone era (2002, 254-58). Nonetheless, Rehnquist still describes a robust interaction during the drafting stage. After circulating a draft, he recalls “wait[ing] anxiously to see what the reaction of the other justices will be . . .” (ibid., 264). Often the reactions will result in substantive changes – especially when the reaction is from a crucial member of the majority, which puts “the opinion writer under considerable pressure to work out something that will satisfy the critic” (ibid.). Some lower court judges seem to have an even more robust interaction during both the conference and drafting stages, focusing less on attempts to maintain a majority and more on attempts to “get it right” (e.g., Coffin 1994, 152-61; Grodin 1989, 65). The result for the court is a collegial understanding 17 consisting of a “deliberately cultivated attitude . . . which manifests respect for the strengths of . . . rather his trust in Warren’s practical political acumen. “The essence of Frankfurter’s position seemed to be that if a practical politician like Warren, who had been governor of California for eleven years, thought we should overrule the 1896 opinion, why should a professor object?” (Douglas 1980, 114). Nor was Warren’s considerable influence limited, Douglas maintains, by Warren’s having resigned from the Court and lying on his deathbed. He relates an incredible story about Warren’s last words to him, concerning the U.S. v. Nixon case. This story is meant to illustrate the continuing moral influence exerted by one great Justice on another (ibid., 238). 17 This focus on “collegiality” should not be construed as meaning that, if judges are merely nice and pleasant to each other on a personal level, they will then have more of a tendency to agree on substantive issues. As Justice Douglas quips, this proposition is “nonsense,” because “[m]en sitting on the Court are never swayed by a smile or a slap on the back. Congenial relations in the corridors and at the luncheon table have no relationship with unanimity or dissent on the issues before the Court. Those issues cut too deep and mark such fundamental differences in legal philosophy ever to be erased or even conditioned by a smile or by acts of friendship from a protagonist” (1980, 36-37). Instead, the use of the word “collegiality” is meant to convey an institutional attitude of deference and respect toward opposing views, and a focus on reasonable deliberation as the primary means of changing minds. 119 others . . . while [also] respecting one’s own deepest convictions . . . and seek[ing] as much excellence in the court’s decision as the combined talents, experience, insight and energy of the judges permit” (Coffin 1994, 215). On a more individual level, this collegiality forces the judge to exercise a great deal of caution and care lest “[y]our shortcuts, errors, and oversights [be] mercilessly paraded before the entire court . . .” (2004, 77). To summarize then, according to judges, there are at least five practical ways that community conventions and understandings affect their experience: (1) the general influence of the wider social, cultural, or political community on a judge’s general attitudes; (2) the influence of legal education and training; (3) the influence of legal practice and other pre-judicial job experience; (4) the judge’s relationship with professional elites, such as the law professoriate, influential members of the bar, or law clerks; and (5) the influence of other judges on the same court. If we are interested in understanding whether judges have internalized the values appropriate to a rule-of-law system, we should focus more on the prevalence and significance of these community experiences. C. The Importance of Language 1. Theoretical Concepts How do interpretive communities fulfill the “assimilative and self- transforming” role ascribed to them in the previous section? Many post-positivist theorists focus on language as the primary means. Taylor summarizes the way 120 language helps constitute community understanding as follows: “language itself serves to set up spaces of common action, on a number of levels, intimate and public . . . . It . . . places us in some social space. We define ourselves partly in terms of what we come to accept as our appropriate place within dialogical actions” (1991, 311). Gadamer provides us with another way to describe the central role that language plays in forming our conventional understandings. “The words that are formed, the means of expression that are used in a language in order to say certain things, are not accidentally fixed, since they do not once again fall altogether into disuse. Instead, a definite articulation of the world is built up – a process that works as if guided . . . (1996, 118). There is thus a kind of “teleology” operating in all forms of language, whereby an individual swimming “in a surging sea of stimuli,” one day “begins . . . to know something” (ibid., 119). This qualitative leap from a state of “not-knowing” to a state of “knowing” takes place through the medium of language, which is the “real mode of operation of our whole human experience of the world” (ibid.). Language presents us with a “world already interpreted” because it bears the values and perspectives of the preexisting community or society in which we live (ibid., 120). A “simultaneous building up of our own world in language . . . persists whenever we want to say something to each other. The result is the actual relationship of men to each other.” (ibid., 121). 121 In New Institutionalist literature, language also plays a key role in establishing and fostering the rules of appropriateness necessary to proper institutional action. “In establishing appropriateness, rules and situations are related by criteria of similarity and difference and through reasoning by analogy and metaphor. The process is mediated heavily by language, by the ways in which participants come to be able to talk about one situation as similar to or different from another . . .” (March & Olsen 1989, 25-26). While dissimilar in some ways, Wittgenstein’s notion of the “world- disclosing” or “world-constituting” function of language further illuminates this idea. Words are not only social tools that help us interpret and make sense of the world, but the world is largely unintelligible without language (Wittgenstein 1961, 2.1-3.05; 1969, 476). More specifically, language becomes a way of calling forth and making sense of the brute facts of the world (Gadamer’s sea of stimuli). The result is a kind of “chicken-and-egg” conundrum: The situation we have here is one in which . . . the vocabulary would not make sense, could not be applied sensibly, where this range of practices did not prevail. And yet this range of practices could not exist without the prevalence of this or some related vocabulary. The language is constitutive of the reality, is essential to it being the kind of reality it is. To separate the two and distinguish them . . . is forever to miss the point” (Taylor 1985, 33- 34; quoted in Gibbons 2006, 566). Seen in this way, our linguistically-ordered concepts – including concepts embodied in legal doctrine – do not so much answer all our questions about the world as much as they act as a background prerequisite for asking questions in the 122 first place (See Brigham 1978, 31, 41, 47-49; Brigham 1987, 28, 30-31, 168, 170- 71). John Brigham helpfully uses the example of the oral arguments in United States v. Nixon (1974) to illustrate the “world-disclosing” function of judicial language. In the course of his arguments as to why the Court could and should intervene between the President and the Congress as to the scope of executive privilege, Leon Jaworski cited Marbury v. Madison (1803) for the proposition that “it is up to the Court to say what the law is” (Brigham 1987, 170). He also cited Doe v. McMillan (1973) for the proposition that “the separation of powers doctrine has not prevented this Court from reviewing acts of Congress, even when . . . the executive branch is also involved” (ibid., 170-71). The power of these citations is not that they logically compelled a particular result or that they precluded counter- arguments, but that they made a particular set of facts intelligible within the context of an identifiable framework of concepts and principles. Reliance on precedent to reach a decision is thus a testament not to the fact that law determines a judicial result, but rather to the fact that “[l]aw determines what a dispute is about and how we will know it” (ibid., 171). In practice, this means that most judges’ personalities, training, socialization, or other factors predispose them to make and justify their decisions in terms of concepts and principles already made relevant and persuasive by the preexisting legal-interpretive community (Brigham 1978, 75, 115-26). It is not a question of judges merely “following” the law, but rather of their roles and self-perceptions 123 being fundamentally oriented toward doing so. Legal doctrine orders most judges’ worlds in such a way that it becomes impossible to reach a decision, or even to know what kind of decision would be appropriate, without first having a conventional and intuitive understanding of the range of answers made available by legal doctrine (ibid., 115; Brigham 1987, 170-71, 174). Wittgenstein points out another characteristic of language that is oriented more toward the more practical aspects of getting along in the world – its inherent malleability and adaptablility (see Wittgenstein 1958, 216, 151-53, 155, 179, 198, 199). As seen in the signpost example discussed above, multiple interpretations of any situation are possible depending on one’s background conventional understanding. But language also offers individuals practical resources to help choosing between intelligible, multiple conflicting claims. This is because language offers its users the ability to construct an infinite number of new sentences from the preexisting grammatical patterns (Brigham 1978, 114). Therefore, it is not only possible but imperative for language users to act creatively in order to address new and different situations (Brigham 1978, 94-95; see also Brigham 1987, 169). This second aspect of judicial language can be called it “Creative-Evolutionary” function. The example of the Supreme Court’s decision in Brown v. Board of Education (1954) can ably illustrate this second function (Brigham 1978, 100-01). Before that case was decided, it would have, in a very real sense, been “false” to say that the Fourteenth Amendment of the United States Constitution prohibited racially 124 segregated schools. The precedent established in Plessy v. Ferguson (1896) and consistently upheld since then meant that a pro-segregation claim was more likely to be successful than an anti-segregation one. Nevertheless, the very concept of equal protection made an anti-segregation claim at least intelligible despite the weight of precedent against it. This is why the psychological and sociological arguments made to the Court were effective even though they were not traditionally “legal” arguments in a narrow sense: because they helped the Court make sense of the broader legal concept of equal protection. This makes sense in linguistic terms as an instance of a language user’s ability to make an infinite number of new sentences from the given grammatical patterns (ibid., 114). Together, these World-Disclosing and Creative-Evolutionary functions of legal doctrine can help us flesh out the internal approach to the rule of law sketched so far in this section. These functions of doctrine illustrate the way in which the rule of law takes place within the interpretive web of the legal-interpretive community – just as anticipated by post-positivist scholars. Judges do not simply follow rules or principles that have some objective existence independent of them. Instead, judges are bound up in the very same social network as the rules and principles. There is no radical separation between the two. The goals, values, and purposes animating judicial thought and behavior are not part of a one-way transmission from society, or the rest of the courts, to the judges. These goals, values, and purposes are dialectically related as parts of the same social-institutional relationship. 125 2. Illustrations From Judicial Experience Again, judges point to several linguistic practices related to legal interpretation that help further illustrate these points. First, one cannot help being overwhelmed by the number of times the issue of textual interpretation comes up in the reported experience of judges. This makes sense given the role of precedents, statutes, rules of procedure, and other authoritative texts that color the life of a judge. Because of the importance given to interpretation by post-positivist theory, it is worth cataloguing many of the various contexts in which this task arises: Initial reading of the record, including the transcript and the opinion of the lower court or agency (Rehnquist 2001, 240; Coffin 1994, 183-84). Interpreting arguments about facts and legal authorities mentioned by law clerks (Rehnquist 2001, 240, 261-62; Kozinski 2004, 77). Interpreting arguments about facts and legal authorities mentioned by the attorneys in oral argument (Rehnquist 2001, 241). Discussing the lower court opinion and relevant legal authorities during conference (Rehnquist 2001, 254; Coffin 1994, 152-61). Researching relevant legal authorities (Coffin 1994, 188, 248; Kozinski 2004, 78-79; Grodin 1989, 124, 142, 150; Scalia 1989, 1177). Substantive editing of opinions (Rehnquist 2001, 264-65; Grodin 1989, 65). 126 The judge’s life is thus inundated by circumstances calling for some interpretation of language. So much so that even Chief Justice Warren remembers having “never felt as though I was abreast of my reading” (1977, 345). For this reason, according to Cardozo, one of the judge’s primary roles is to act as a kind of a “translator” of legal language (1921, 174). In general, then, judges will need to “have absorbed the spirit, and have filled themselves with a love, of the language they must read” (ibid.). Many judges’ comments, however, acknowledge that the legal language being interpreted is not always clear enough to serve as an objective, external constraint on the process. These comments can serve to ably illustrate the “creative- evolutionary” aspects of legal language. Justice Rehnquist focuses on constitutional language – such as the Commerce and Equal Protection Clauses – as a great source of creative freedom for Supreme Court justices: “The Supreme Court thus has considerable latitude to interpret the meaning of [this] . . . language . . . [T]he very breadth of the language, and the consequent breadth of interpretation that is permissible, may lead judges to feel that the sky is the limit . . .” (2001, 277). Cardozo uses the example of Fourteenth Amendment liberty to illustrate the indeterminacy of some of the constitutional provisions judges are required to interpret. “Here is a concept of the greatest generality. Yet it is put before the courts en bloc. Liberty is not defined. Its limits are not mapped and charted. How shall they be known?” (1921, 76; see also Douglas 1980, 53, 105). Indeed, this makes sense because “[u]nique situations can never have their answers ready made as in the 127 complete letter-writing guides or the manuals of the art of conversation” (Cardozo 1924, 133). This matches the experience of Justice Frankfurter, who drew much practical inspiration from what he called the “most important, single sentence in American Constitutional Law, Marshall’s ‘It is a Constitution we are expounding,’ not an insurance clause in small type, but a scheme of government . . . intended for the undefined and unlimited future” (1960, 166, quoting McCulloch v. Maryland, 17 U.S. 316, 407 (1819)). According to both Chief Justice Warren and Justice Black, the generality of constitutional language makes sense of most of the disagreements between justices during their tenures (Warren 1977, 332; Douglas 1980, 33, 43, 48). Nor is this indeterminacy and generality limited to constitutional provisions. As Justice Marshall asserts, “[m]uch of the work of any federal judge involves trying to decipher and to apply the sometimes conflicting messages contained in the cases we decide” (2001, 187). The same discretion is often allowed by legislative statutes, some of which are precise and targeted and others of which are imprecise or lacking in focus; this produces different levels of interpretive freedom, which can often be seen by outsiders as evidence of judicial restraint or judicial activism (Coffin 1994, 248). This kind of “creative-evolutionary” use of language, made possible by the basic indeterminacy of some legal texts, often frustrates the attempt to make an objectively correct decision. Even a judge with the conservative bona fides of Chief Justice Rehnquist admits that 128 It is not as if we [are] trying to find a formula for squaring the circle . . . [and] suddenly [a judge] solves the riddle and the others cry “Eureka! He has found it.” The law is at best an inexact science, and the cases our court takes to decide are frequently ones upon which able judges in lower courts have disagreed. There simply is no demonstrably “right” answer to the question involved in many of our difficult cases (2001, 255). In these kinds of cases, Cardozo maintains, judges experience a realm of creative, but not unconstrained, freedom: “In such circumstances, considerations of custom or utility will often be present to regulate the choice. A residuum will be left where the personality of the judge, his taste, his training or his bent of mind, may prove the controlling factor” (1921, 53). Thus, “even where [the law’s objective] claims are most assertive,” they do not confine “the law of the future to uninspired repetition of the law of the present and the past” (ibid.). Instead, Cardozo asserts, “[t]he decisions of the courts on economic and social questions depend upon their economic and social philosophy” (ibid., 171). This corresponds to Justice Cardozo’s experience of freedom as a state appellate judge. When he was in private practice, Cardozo remembers lamenting that courts did not seem to accept pertinent authority and, “if it fitted well and truly, . . . follow it to the limit of logic” (1924, 57). However, he recollects, “[t]he problem stood before me in a new light when I had to cope with it as a judge. I found that the creative element was greater than I had fancied; the forks in the road more frequent; the signposts less complete” (ibid., 57). In summary, “[t]o be a judge is to exercise judgment, and some measure of . . . ‘creative power’ is a legitimate and necessary part of the job” (Wilkinson 1989, 780). 129 Despite linguistic indeterminacy in some instances, judges insist that they are nevertheless constrained by authoritative principles found in legal texts in ways that are largely consistent with the “world-disclosing function” of language. In fact, many judges insist that, in most cases, and on most issues, legal language is entirely clear. According to Justice Cardozo, “[i]n countless litigations, the law is so clear that judges have no discretion. They have the right to legislate within gaps, but often there are no gaps” (1921, 129). Indeed, Cardozo asserts, “[o]f the cases that come before the court in which I sit, [18] a majority, I think, could not, with semblance of reason, be decided in any way but one. The law and its application alike are plain” (ibid., 164; see also Cardozo 1924, 60). Justice Rehnquist agrees, maintaining that it is even possible for judges to adhere to the “language of the Constitution, and the meaning that can fairly be ascribed to [that] language” (2001, 278). This is possible because “[l]anguage has meaning” (Kozinski 2004, 79). Other judges point to legal authorities that are more determinate and precise than constitutional provisions, such as procedural and evidentiary rules (e.g., Coffin 1994, 258-60). Even when the law is indeterminate or imprecise, however, most insist that their discretion is still guided by broad principles and frameworks. Even a judge with the liberal bona fides of Justice Marshall thus insists that judges consider controversies “in light of . . . broader legal schemes, Constitutional and otherwise, which guide the country. Decisions traditionally are justified by opinions 18 At this time, Cardozo was an Associate Judge on the New York Court of Appeals, that state’s highest court. 130 announcing reasoning derived from earlier cases and established principles . . .” (2001, 184). This doesn’t mean every word is as precisely defined as every other word, or that words always have a single, immutable meaning. What it does mean is that language used in statutes, regulations, contracts, and the Constitution place an objective constraint on our conduct. The precise line may be debatable at times, but at the very least the language used sets an outer boundary that those interpreting and applying the law must respect (ibid.). Justice Douglas agrees, asserting that justices are bound by the “values,” which are “written into our Constitution” in various places, including the First, Fifth, and Fourteenth Amendments (1980, 137). So, what exactly is it that judges feel bound by even when legal language is indeterminate? In other words, in what ways – to use Judge Kozinski’s language – does legal language provide the outer boundaries for judicial discretion? Justice Cardozo provides a vivid, if perhaps overly poetic, picture of these boundaries: The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to ‘the primordial necessity of order in the social life’ (1921, 141). More specifically, Cardozo maintains, “the choice to be made is not between stability and unrestrained motion, but between stability and motion moderated and tempered by the immemorial traditions of a professional technique. . . . [T]he worker in the law is impressed over and over again with the wealth of weapons in the legal armory. Repeatedly, when one is hard beset, there are principles and precedents and 131 analogies which may be pressed in to the service of justice if one has the perceiving eye to use them” (1921, 59). Judge Kozinski agrees, claiming that judges are bound to at least discuss the available authority and attempt to show how it does or does not apply; they may not simply ignore it (ibid.). Finally, according to Justice Grodin, judges often look to the existing precedents to establish a kind of analytic framework within which any change must occur (1989, 142). As usual, Justice Cardozo provides us with a vivid description of how the two functions of legal language – world-disclosure and creative-evolution – work together. Reacting to the common impression that the law is so “fluid and changeable” that “nothing is stable, Cardozo notes that, “[i]n this perpetual flux, the problem which confronts the judge is in reality a two-fold one: he must first extract from the precedents the underlying principle . . .; he must then determine the path or direction along which the principle is to move and develop, if it is not to wither and die” (1921, 28). Comparing accepted legal doctrines to the axioms of astronomy or physics, Cardozo illustrates the interplay between the old and new in judicial thought: A stock of juridical conceptions and formulas is developed, and we take them, so to speak, ready-made. Such fundamental conceptions as contract and possession and ownership and testament and many others are there, ready for use. How they came to be there, I do not need to inquire. . . . These fundamental conceptions once attained form the starting point from which are derived new consequences, which, at first, tentative and groping, gain by reiteration a new permanence and certainty. In the end, they become accepted themselves as fundamental and axiomatic. So it is with the growth from precedent to precedent (ibid., 48). 132 And, Cardozo concludes, “[s]o it is with the growth of the law. Every topic is coherent with reference to some incoherence that is past, and incoherent with reference to some coherence yet to be. I am struck by this, from day to day, in the course of my judicial work” (1928, 76). There is thus, according to Cardozo, and according to most judges, a dialectical interplay between the established language of precedent and the future direction of the principle underneath that precedent. “History, in illuminating the past, illuminates the present, and in illuminating the present, illuminates the future” (1921, 53). “‘There is combination and there is severance; there is the setting of bonds and there is the loosening of bonds; there is conservation and there is change; there is a “stereotyping principle” and there is an “innovating principle.”’ For every strophe an antistrophe. The metronome of the law prescribes the interval between them” (Cardozo 1928, 87-88, quoting Small 1905, 252). In sum, “[d]iscovery and creation react upon each other” (Cardozo 1924, 97; see also 143). To summarize, when judges reflect on their experiences in interpreting legal language, they point to four key elements: (1) their general immersion into language in all aspects of their job; (2) the creative freedom they experience based on the indeterminacy and generality of legal language; (3) their sense of feeling bound by legal language despite this freedom; and (4) their view that this combination of freedom and constraint is necessary for carrying out the judicial role. Like the community experiences discussed in the previous section, these language 133 experiences are essential matters to focus on if we are interested in understanding whether judges have internalized the values appropriate to a rule-of-law system. D. The Importance of Virtue 1. Theoretical Concepts What all this post-positivist philosophy regarding social practices adds up to so far is an abstract description of the social construction of meaningful action. This description runs as follows: the legal-judicial community, through its socializing and language practices, produces certain shared conventions, which in turn shape the understanding and interpretations of individual judges. This abstract description, however, must be applied to the more concrete question of whether judges are faithful to our reformulated rule-of-law values. My argument is that the rule of law is simply a specific instance of meaningful action socially constructed within the legal-judicial interpretive community. Judges are not existentially separated from the legal rules and principles they apply, as the truncated positivist version of the rule of law assumes. Instead, judges are bound up in the very same social network as the rules and principles. The goals, values, and purposes animating judicial thought and behavior are not part of a one- way transmission from society to the judges. These goals, values, and purposes are integrally related as parts of the same community understanding. This understanding works itself out into particular judicial actions and interpretations through the linguistic medium of legal doctrine. 134 But how can we move from these abstract characterizations of judging as a social practice to a more particular, concrete account of the actions of judges? Along with Larry Solum (2003) and Michael Moore (1985, 1989), I argue that such an account must include an understanding of the judicial virtues. That is to say, we must have some understanding of what good judicial decision making looks like in a rule-of-law system in order to be able to ascertain how prevalent such decisions are. A virtue-centered theory of judging must begin where the classic Aristotelian theory of the virtues begins: with a teleological conception of human action. As Alasdair MacIntyre has noted, such a teleological conception requires us go beyond merely describing human action as it is to describe human action as it could or should be if it realized its “essential nature” (1984, 52). Tamanaha uses the language of “norms” to discuss some of the common qualities that make up the “essential nature” of judging: “To function as a judge, the judge . . . must internalize . . . a great deal of the norms applicable to the practice of judging. Many of these norms are trivial . . ., though most are not (like norms related to fairness, the proper judicial temperament, following the law, the style of writing judicial decisions, judicial ethics, and so forth)” (1996, 190). In New Institutionalist terms, virtue forms an important part of appropriate action that orients individual actors toward the overall mission of the institution within modern society: The idea of intelligent choice is a central idea of modern ideology, and political institutions are dedicated to that vision of life. Consequently, 135 activities within political institutions, and particularly decision activities, are part of a set of rituals by which a society assures itself that human existence is built around choice. Such rituals confirm that human institutions are manifestations of the intelligent control of human destiny through intentional action. These sacred values are interpreted and reinforced through the processes of politics. Individuals establish their reputations for virtue . . . (March & Olsen 1989, 50). Political communities are thus based on “a shared history, a valued way of life, [and] a shared definition of the common good” (ibid., 161). The result is a “transformation of preferences” whereby appropriate standards of excellence, necessary to carry out the essential nature of the institution, are built, fostered, and extended (see ibid., 163). So, what constitutes the “essential nature” of judging in a rule-of-law system? In other words, what are the “cardinal” virtues that help judges achieve those standards of excellence appropriate to the judicial institution? Solem defines a “judicial virtue” in general as “a naturally possible disposition of mind or will that . . . reliably disposes its possessor to make just decisions” (2003, 198). This implies that the “essential nature” or “cardinal virtue” of judging is what Solum calls “judicial justice.” (ibid., 194). While this can be seen generally as a disposition toward fairness, it also includes several specific qualities that should be possessed by judges. The first quality associated with “judicial justice” is impartiality. That is, judges “should not identify more strongly with one side than with the other . . . but must be able to understand the interests and passions of all who appear before” them 136 (ibid., 196). Thus, judges should have “an appropriate, even-handed concern for the interests of others” (ibid., 197). Second, “judicial justice” requires integrity. This includes “a special concern for fidelity to law and for the coherence of law” (Solum 2003, 197.; see also Dworkin 1986). Such a concern is especially important to a rule-of-law system because it helps to ensure that judicial decisions are relatively certain and consistent. “Even when a judge believes that a particular legal rule might be improved, the just decision will, in the usual case, require fidelity to law. . .” (Solum 2003, 197). This not only provides certainty and consistency, but also prevents any unfairness (such as partiality) from distorting the decision-making process. The third and final key component of the cardinal virtue of “judicial justice” is situation sense or legal vision. Judges must be able to “size up a case and discern which aspects are legally important” (Solum 2003, 197.). This requires: (A) “an intellectual grasp of the content of the law”; (B) “an understanding of the underlying purposes the law serves”; and (C) “an ability to pick out the features of particular cases that are important for those rules and purposes” (ibid.). From the cardinal virtue of “judicial justice” flow all of the other ordinary virtues we often associate with the practice of judging. Tamanaha (1996) uses the language of institutional “norms” to describe these ordinary virtues: “The practice of judging . . . involves a mix, among other factors, of . . . satisfying the parties before 137 them, looking good among colleagues, acting judicially, moving the cases along, and not making any serious or obvious mistakes” (195). Solem (2003) describes these ordinary virtues in more detail. First, judges should be temperate. That is, they should be able to control their own appetites and desires so that they resist the temptation to decide cases according to those appetites and desires (189-90). Second, judges should possess courage. That is, they should act as justice requires in every case, regardless of any possible damage to reputation or career (ibid., 190-91). Third, judges should possess the proper temperament. That is, they should respond to cases before them with the emotion appropriate to the situation (ibid., 191). Fourth, judges should be intelligent. That is, they should be learned in the law and have the ability to engage in “sophisticated legal reasoning” (ibid., 191-92). Fifth, and finally, judges should be wise. That is, they should know which particular legal ends are worth pursuing and which legal means are best suited to achieve those ends (ibid., 192-93). This account of judicial virtue is totally inconsistent with the traditional objective account of the rule of law rejected in Chapter One. Good judicial decisions are not merely those which follow the existing legal rules in a mechanical way. Indeed, this is an impossible task in many cases, since the legal rules are vague or ambiguous. Virtue jurisprudence assumes that judges with “different experiences and beliefs” will interpret and apply such rules in different ways. In these cases, there may not be one uniquely correct legal solution, but rather a multiplicity of 138 correct solutions. We need not assume that, in cases where different judges decide the same case in different ways, one of them must be acting virtuously and the other viciously. It may simply be the case that two equally virtuous judges merely have a good-faith disagreement about the proper outcome or reasoning (Solum 2003, 202- 03). Another way that virtue jurisprudence differs from the traditional account of the rule of law is by showing how virtue might even require judges to sometimes ignore or change the existing legal rules. There will sometimes be cases where the legal rules themselves are unjust, partial, or unwise. If the cardinal virtue of “judicial justice” requires a disposition toward impartiality and practical wisdom, virtuous judges will depart from the law in order to do justice. This provides a persuasive account of the equitable function of judging, which involves not mechanical rule- following but the “entrust[ing of] decisions to virtuous judges who can craft a decision to fit the particular case” (ibid., 206). However appealing or persuasive this account of judicial virtue is on these counts, however, it fails to answer the crucial question posed by many rule-of-law skeptics: how do we know that judges are really being faithful to legal values instead of just using the language of “good faith,” “equity,” or even “virtue” to rationalize a non-virtuous decision? In other words, once we let go of the notion that objective rules constrain judges, are there any real guarantees that judges will really be virtuous? On its own, Solum’s virtue jurisprudence does not provide any explicit 139 answers to questions like these. For better answers, we must get behind the virtues themselves to the origins and conditions necessary for the virtues to flourish. Following Alasdair MacIntyre (1984), I argue that one of the key conditions for the fostering and cultivation of virtue, including judicial virtue, is found in the notion of social practice sketched in the previous sections. MacIntyre’s general definition of a “practice” is particularly useful in helping to more fully explain the relationship between the practice of judging and the promotion of judicial virtue. According to MacIntyre, a “practice” is any coherent and complex form of socially established cooperative human activity through which goods internal to that form of activity are realized in the course of trying to achieve those standards of excellence which are appropriate to, and partially definitive of, that form of activity, with the result that human powers to achieve excellence, and human conceptions of the ends and goods involved, are systematically extended (1984, 187). What are the “standards of excellence” appropriate to, and partially definitive of, the form of cooperative human activity known as judging? Surely the judicial virtues sketched above are close approximations. Further, as described above, they are essential to realizing the major good internal to the activity of judging: namely, that of doing justice. But, as MacIntyre astutely observes, trying to live up to these standards of excellence is not a matter merely of the individual heroically striving to do the right thing. Rather, it is a matter of partially submitting one’s own independent judgment to the authority of community habits, customs, and traditions: 140 To enter into the practice is to accept the authority of those standards and the inadequacy of my own performance as judged by them. It is to subject my own attitudes, choices, preferences, and tastes to the standards which currently and partially define the practice. . . . Every practice requires a certain kind of relationship between those who participate in it. Now the virtues are those goods by reference to which, whether we like it or not, we define our relationships to those other people with whom we share the kinds of purposes and standards which inform practices (ibid., 190). So, then, does this notion of judicial constraint merely replace one set of external rules – those contained in the law itself – with another set of external rules comprised of community norms? In fact, MacIntyre allows us to see the pursuit of judicial virtues less as a kind of external rule-following and more as a kind of internalized community value system. [A] practice . . . is never just a set of technical skills, even when directed towards some unified purpose . . . . What is distinctive in a practice is in part the way in which conceptions of the relevant goods and ends which the technical skills serve . . . are transformed and enriched by these extensions of human powers and by that regard for its own internal goods . . . . (ibid., 193). In other words, judges get better at the judicial virtues as they go along. The more they participate in the life of the judicial community, the more they internalize the qualities associated with the cardinal virtue of “judicial justice”; the more they internalize these qualities, the more excellence they are able to achieve in their future participation. This excellence is achieved throughout the whole arc of a judge’s life, including: legal training, education, and work experience, and relations with other judges on the same court. Another key condition identified by MacIntyre for the cultivation of virtue is a certain kind of linguistic practice called narrative unity. Trying to account for 141 virtuous judicial actions by simply identifying the appropriate legal rules or appropriate judicial role activities is “utterly doomed to failure” because it does not take into account the “intentions, beliefs, and settings” that give those rules and activities their meaning (MacIntyre 1984, 208). In order for a social activity such as judging to be intelligible as an instance of the social practice of judging, it must find its place within a social narrative or story told about that practice. “[M]an is in his actions and practice, as well as in his fictions, essentially a story-telling animal . . . I can only answer the question ‘What am I to do?’ if I can answer the prior question ‘Of what story or stories do I find myself a part?’” (ibid., 216). To illustrate this point, consider the following observations, designed to show how meaningless mere words can be without an overarching narrative: Suppose I am standing waiting for a bus and the young man standing next to me suddenly says: “The name of the common wild duck is Histrionicus histrionicus histrionicus.” There is no problem as to the meaning of the sentence he uttered: the problem is, how to answer the question, what was he doing in uttering it? Suppose he just uttered such sentences at random intervals; this would be one possible form of madness. We would render his action of utterance intelligible if one of the following turned out to be true. He has mistaken me for someone who yesterday had approached hi in the library and asked: “Do you by any chance know the Latin name of the common wild duck?” Or he has just come from a session with his psychotherapist who has urged him to break down his shyness by talking to strangers. . . . In each case the act of utterance becomes intelligible by finding its place in a narrative (ibid., 210). But this seems to beg the question – whose narrative makes the judge’s decision intelligible: the judicial community’s or the judge’s? The answer is: both. “What the actor is able to do and say intelligibly as an actor is deeply affected by the 142 fact that we are never more (and sometimes less) than co-authors of our own narratives” (ibid., 213). The result is “an enacted dramatic narrative in which the characters are also the authors. The characters of course never start literally ab initio [from the beginning]; they plunge in medias res [into the middle of things], the beginnings of their story already made for them by what and who has gone before” (ibid., 215). 19 MacIntyre’s concept of narrative unity thus has two aspects that might help us to explain the relationship between individual judges and the legal-judicial community. First, the individual judge is necessarily accountable to the community. “To be the subject of a narrative . . . is to be accountable for the actions and experiences which compose a narratable life. It is . . . to be open to being asked to give a certain kind of account of what one did or what happened to one . . . (1984, 217). Second, however, the judge is also able to hold the legal-judicial community accountable to its own standards and norms (ibid., 218). However, this is not because of any reversal of power whereby the judge can now dictate to the community how it should believe and act. Rather, both judge and community are part of an “interlocking set of narratives”: “I am part of their story, as they are part of mine . . . . Asking what you did and why, saying what I did and why, pondering the difference between your account of what I did and my account of what I did, and vie 19 Of course, one is immediately reminded of Ronald Dworkin’s (1982a) famous “chain novel” analogy (541-43). 143 versa, these are essential constituents of all but the simplest and barest of narratives” (ibid.) Another way to discuss this aspect of narrative unity is through the language of “tradition.” Remember that a key component of the subjective, values-oriented account of the rule of law sketched in the previous section is the “moral tradition” of fair and even-handed legal interpretation. MacIntyre allows us to further flesh out this idea by pointing out that no one is able to seek individual excellence in a social practice without at the same time becoming a bearer of community traditions about how to carry out that practice (ibid., 220-21). “All reasoning takes place within the context of some traditional mode of thought,” but “when a tradition is in good order, it is always partially constituted by an argument about the goods the pursuit of which gives to that tradition its particular point or purpose” (ibid., 222). Put another way, “[a] living tradition . . . is an historically extended, socially embodied argument . . . about the goods that constitute that tradition” (ibid.). Thus, it makes sense that good legal interpretation might include both faithful interpretations of existing legal texts and innovative creations of new authoritative legal texts. The narrative within which judges find their place needs them to be both good tellers of the old story of the law and good authors of the new story of law. This can often create conflict and change within a social practice. Indeed, as Brian Tamanaha (1996) has astutely observed, the social practice of judging in particular may be even less monolithic and more heterogenous than other social 144 practices (178-83). As he notes, “the practice of judging contains norms oriented toward the application of rules but also norms oriented toward doing justice, demands which sometimes clash” (179). Further, because judges are members of multiple interpretive communities and social practices, their values and attitudes may conflict. People do not enter practices tabula rasa. The influence of other practices and interpretive communities shapes the manner in which participants take up aspects of the practice at hand, leading them to adopt certain interpretations of norms over others . . . . That is why two people engaged in . . . the practice of judging . . . can sincerely understand the selfsame legal norm differently (ibid., 179). In addition to these factors, Tamanaha notes, the practice of judging also undergoes regular changes to its personnel, and occasional changes to its routines based on its interaction with other practices and institutions (ibid., 179-80). Given the heterogeneity and conflict inherent in the social practice of judging, how does the concept of narrative unity foster or cultivate the judicial virtues? The virtues are precisely those habits of action that sustain and strengthen the tradition of “judicial justice” that forms the internal good, essential nature, or telos, of judging as a social practice. Conversely, the vices (the opposites of the virtues) are precisely those habits of action that weaken and destroy the tradition of “judicial justice” (see MacIntyre 1984, 222-23; Solum 2003, 198). They are not simple extensions of a single community narrative, enabling us to tell whether judges are acting rightly or wrongly. Rather, each virtue is a socially embedded negotiation between the individual judge’s narrative and the larger institutional narrative. 145 We might disagree about whether judges are actually virtuous or vicious in their judicial behavior, just as we might disagree that Louis XIV was actually committed to the rule of law. But under the subjective theory of the rule of law sketched in the previous section, what matters most is not whether judges are following some external rule, but whether they have internalized the proper attitude toward the narratives and traditions that make any judicial decision intelligible. And one of the most important rule-of-law attitudes is precisely an “adequate sense of the narratives and traditions of which they are a part (see MacIntyre 1984, 223). Thus, just as with the medieval monarchs, the key question is not whether the government official is actually bound by the law in way that prevents any question or criticism. Rather, the key question is whether the government official habitually intends and acts in ways that sustain and strengthen the rule-of-law tradition. To repeat Tamanaha’s point: “the answer to the ancient puzzle of how law can limit itself is that it does not – attitudes about law provide the limits.” (2004, 58). Thus, “even when [an assertion of adherence to the law] is more rhetoric than reality, it is of fundamental significance . . . . Those in power [have] repeatedly espoused the virtue of being bound by law; in the course of time, this rhetoric became a prime cultural value . . . Rhetoric became reality.” (ibid., 137, 141). Just as Aristotle anticipated concerning the virtues of the individual citizen, the conscious and regular practice of virtue shapes and forms the judge’s character in a fundamental way. Thus, while the rule of law may seem like an exercise of false 146 consciousness, or even worse, a sham for the exercise of raw political power, it may actually turn out to be a kind of self-fulfilling prophecy. 2. Illustrations From Judicial Experience Judges often experience their role in society as one governed by virtue, or at least moral obligation. For example, Chief Justice Warren, consistently with many other judges, uses the language of “solemn duty” to describe the judge’s job of enforcing legislative statutes. Cardozo goes further in describing the relationship between moral norms and judicial decision making: “The state in commissioning its judges has commanded them to judge, but neither in constitution nor in statute has it formulated a code to define the manner of their judging. The pressure of society invests new forms of conduct in the minds of the multitude with the sanction of moral obligation, and the same pressure working upon the mind of the judge invests them finally through his action with the sanction of law” (1928, 18). Indeed, Cardozo traced the moral obligations of judges back at least as afar as Plato and Aritotle’s conception of “justice” as a kind of harmony or moderation (ibid., 38-39). More specifically, the personal reflections of less philosophically-inclined judge also contain certain passages that seem to resonate with specific elements of the cardinal virtue of “judicial justice.” First, “impartiality” is, by far, the overriding theme of many judges’ comments regarding their proper role. For example, despite the ideological distance between them on substantive issues, Justices Marshall and 147 Rehnquist both describe impartiality as the most essential quality that judges must possess: It is the responsibility of the judiciary to make sure that we remain a government of laws and that all persons are equal under those laws. This is the essence of justice. It is a weighty responsibility, but we are uniquely qualified for the task under our Constitutional scheme. . . . The judiciary operates under a premise of neutrality rather than partisanship. Federal judges are insulated, as much as possible, from political pressure . . . (Marshall 2001, 184). Every time an individual or a group asserts a claim of Constitutional right against a legislative act, the principle of majority rule and self government is placed on one side of the judicial scale, and the principle of the individual right is placed on the other side of the scale. The function of the Supreme Court is, indeed, to hold the balance true between these weights in the scale, and not to consciously elevate one at the expense of the other (Renquist 2001, 279). In addition to the scale metaphor used by Rehnquist, another popular analogy used by judges to describe the virtue of impartiality is that of the judge as umpire or referee. Long before Justice Roberts used this analogy in his Senate confirmation hearings, Justice Marshall asserted: “The reason for [the] strict requirement of impartiality is that the judiciary stands as the referee whenever the individual citizen and his government conflict” (2001, 185). Similarly, Justice Grodin uses the referee analogy, although he seems to anticipate a bit more freedom in interpreting the rules than Justice Roberts: Compare [the position of the judge to] the position of a football referee charged with responsibility for calling penalties under a rule that prohibits “unnecessary roughness,” but does not define it. . . . Answers to questions [about how to apply the rule] are not to be found on the face of the rule . . . but does that mean that a referee has discretion to apply any standard he considers appropriate? Obviously not, the referee is constrained by the kind 148 of game that is being played and by the customs and expectations that have developed surrounding the game (1989, 153). However the virtue of impartiality is described, judges seem to agree that a key action required is the subordination of their individual preferences and desires. For example, although Justice Marshall acknowledged that each judge “brings along to the judicial role certain preconceived biases, . . . we . . . must try to [ignore them] to the extent we possibly can” (Marshall 2001, 187). As we would expect, given his ideology, Chief Justice Rehnquist states the norm even more stridently: “Many of us necessarily feel strongly and deeply about the judgments of our own consciences, but these remain only personal, moral judgments until in some way they are given the sanction of supreme law (2001, 278). Cardozo agrees, asserting that “a judge is to give effect in general not to his own scale of values, but to the scale of values revealed to him in his readings of the social mind. In particular he may not substitute his own reason for one established by the legislature, acting within constitutional limitations . . .” (1929, 55; see also 1924, 95). He expresses this idea more vividly through the following (slightly outdated) example: Let us suppose, for illustration, a judge looked upon theatre-going as a sin. Would he be doing right if, in a filed where the rule of law was still unsettled, he permitted this conviction, though known to be in conflict with the dominant standard of right conduct, to govern his decision? My own notion is that he would be under a duty to conform to the accepted standards of the community (Cardozo 1921, 108). This subordination of personal desires is often experienced as a norm of separation between the “legal” and the “political.” For example, Justice Scalia 149 expresses his distaste for decisions made without “a solid textual anchor or an established social norm” because such pronouncements “appear[] uncomfortably like legislation” (1989, 1185). Lest one thinks this norm is exclusively held by conservatives, Justice Cardozo also expressed it in the following famous passage from The Nature of the Judicial Process: “The rule that fits the case may be supplied by the constitution or by statute. If that is so, the judge looks no farther. The correspondence ascertained, his duty is to obey. . . . In this sense, judge-made law is secondary and subordinate to the law that is made by legislators” (1921, 14). Indeed, although Cardozo sometimes relates the functions of judge and legislator (e.g., ibid., 120), he maintains that it is precisely the duty of impartiality that demarcates the boundary between the two: “While the legislator is not hampered by any limitations in the appreciation of a general situation . . . the judge . . . ought . . . in order to escape the dangers of arbitrary action, to disengage himself, so far as possible, of every influence that is personal. . .” (ibid., 120-21; see also 173). Chief Justice Warren uses this same theme of separation between judge and legislator as a defense of his courts active and impartial protection of constitutional rights: Through politics, which has been defined as the art of the possible, progress could be made and most often was made by compromising and taking half a loaf where a loaf could not be obtained. The opposite is true so far as the judicial process was concerned. Through it, and particularly in the Supreme Court, the basic ingredient of the decision is principle, and it should not be compromised and parceled out a little in one case, a little more in the other, until eventually someone receives the full benefit. If the principle is sound and constitutional, it is the birthright of every American, not to be accorded 150 begrudgingly or piecemeal or to special groups only, but to everyone in its entirety whenever it is brought into play (1977, 6; see also Douglas 1980, 137). Of course, Frankfurter’s thoughts on the subject of the proper division of power between courts and legislators are well-known. However, his conviction on this point appears to have been more than merely ideological; Rather, it often seems to take on the status of a moral imperative (see, e.g., 1960, 299-300). Perhaps surprisingly, given his history of disagreement with Frankfurter, Justice Douglas agrees that impartiality requires a fundamental distinction between legislative and judicial roles (see 1980, 151). Lower court judges are just as adamant about the virtue of impartiality: 1st Circuit Court of Appeals Judge Frank Coffin describes it in terms of the “pull of deference” (1994, 260-62); Judge Kozinski speaks of the struggle against “self- indulgence” (2004, 80); Justice Grodin discusses his decisions to apply the death penalty and other laws despite his own “lack of enthusiasm” for them (1989, 101, 115); and Justice Schaeffer insists that judges should not create major changes in the law based only on their “own subjective appraisal” of the wisdom of those changes (2004, 43). Second, “integrity” is also a common theme of judges’ reflections on their own activity. For instance, Justice Marshall described good judicial decisions that avoid the trap of partisan or ideological politics as “reflective”: Judges should 151 “consider[] the controversy before them in light of the broader legal schemes, Constitutional or otherwise, which guide the country . . . (2001, 184). We have already seen, above, the many instances where judges describe their experience of feeling bound by legal language, principles, and values, even where these are indeterminate or imprecise. Justice Grodin helpfully uses the language of “principled creativity” to describe these ways in which judges can and must move the law forward, but must do so in a way that is also faithful to existing legal rules and principles (1989, 188). Cardozo describes the same phenomenon as “the duty of adherence to the pervading spirit of the law” (1921, 114). However, this experience of feeling bound is not simply a byproduct of the job. Rather, it is experienced by judges as a normative imperative. For example, Cardozo traces the norm of stare decisis directly to the norm of public legitimacy, asserting that “[a]dherence to precedent must . . . be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts” (1921, 34). He also famously distinguishes between the “power” of a judge to ignore their best interpretation of the law, which is sometimes present, and the corresponding lack of a “right” to do so, which he puts in the language of moral duty (ibid., 129). Like Cardozo, Judge Coffin also describes integrity by using the language of public legitimacy, arguing that judges have an obligation to “seek . . . legitimacy, first, in the presence of guidelines of substance, attitudes and process . . . [but that] [w]here these are absent, I must be content with a full and open account of 152 the basis on which . . . the values I have relied on are justified (1994, 254). More explicitly, Judge Wilkinson describes the imperative for judges to “reason from the perceived postulates of the law, not outside of them” (1989, 792). More significantly, he connects this imperative up self-discipline necessary to enact the rule of law: It is not irreverent to ask why self-restraint is more likely to be successful for the judge than for the dieter. Left purely to oneself . . . the dieter’s natural appetite may prevail. For judges, no less than for dieters, it may be more exhilarating simply to let go. . . . When the judge jettisons self-discipline, however, the rule of law suffers, and the system of social restraints in which ‘We the People’ have placed our faith have been ill-used (ibid., 792). Justice Scalia claims that appellate judges exercise this kind of self-discipline whenever they issue a holding based on a general rule of law: “when, in writing for the majority of the Court, I adopt a general rule and say, “This is the basis of my decision,” I not only constrain lower courts, I constrain myself as well. If the next case should have such different facts that my political or policy preferences regarding the outcome are quite the opposite, I will be unable to indulge those preferences; I have committed myself to the governing principle” 1989, 1179). Third, and finally, judges describe many practical ways in which “situation sense” or “legal vision” works itself out in practice. Most importantly, judges must immerse themselves in the available legal materials, so that they know as much as they can about the issue under consideration. Even a judge like Cardozo, who put great stock in social welfare and custom as a guide to correct decision, asserted that 153 nothing can take the place of rigorous and profound study of the law as already developed by the wisdom of the past. This is the raw material which we are to mould. Without it, no philosophy will amount to much, any more than a theory of aesthetics will help the sculptor who would mould the statue without clay (1924, 60). Even more vividly, Cardozo described knowledge of the rules and principles contained in existing law as “the coin which we must have in our pocket if we are to pay our way with legal tender” (ibid., 98). But, having studied all the available legal materials, and having thought long and hard about their best interpretation, the judge still must achieve a level of comfort with the final decision. This comfort level requires a great deal of wisdom and practical experience. For example, Chief Justice Rehnquist describes what happens after he has consulted all the available legal materials: Some of my best insights came not during my enforced thinking periods in my chambers, but while I was shaving in the morning, driving to work, or just walking from one place to another . . . allowing some time for the case to ‘percolate’ in my mind. . . . [Good thoughts about a case] might come in a chance conversation with a colleague; they might come some night while I was lying awake in bed; they might come during oral argument. But once I had made myself sufficiently familiar with the case, come they inevitably did (2001, 241). Justice Schaeffer refers to Cardozo’s notion of “mental peace” to describe this same phenomenon: So far as I am aware, decision with me has nit turned upon the state of my digestion. And if I have reached my decision by means of a hunch, it has been a hunch with a long-delayed fuse, for I have often started confidently toward one conclusion, only to be checked and turned about by further study. . . .Cardozo has described an experience which I think is familiar to every judge: 154 I have gone through periods of uncertainty so great that I have sometimes said to myself, “I shall never be able to vote in this case one way or the other.” Then, suddenly the fog has lifted. I have reached a stage of mental peace . . . [T]he judgment reached with so much pain has become the only possible conclusion, the antecedent doubts merged, and finally extinguished, in the calmness of conviction (2001, 115, quoting Cardozo 1928, 80-81). Earlier, Justice Cardozo had described the same phenomena as “a semi- intuitive apprehension of the pervading spirit of our law,” which “must come to the rescue of the anxious judge, and tell him where to go” (1921, 43). He also referred to the judge’s inevitable “dependence upon intuition or flashes of insight transcending and transforming the contributions of mere experience” (1924, 89-90; see also ibid., 93 and 1921, 161-62). The result of all this, Cardozo concludes, is a creative sensibility similar to that of scientists or artists, who go through periods of “incubation and illumination” when [w]e gather together our principles and precedents and analogies, even at times our fictions, and summon them to yield the energy that will best attain the jural end. If our wand has the divining touch, it will seldom know in vain. So it is that the conclusion, however deliberate and labored, has often the aspect in the end of nothing but a lucky find (1929, 60). In the end, despite – or perhaps because of – the judge’s lifetime of education, training, and overall knowledge of the law, he is able “gather his wits, pluck up his courage, go forward one way or the other, and pray that he may be walking, not into ambush, morass, and darkness, but into safety, the open spaces, and the light” (1924, 59). 155 Together, these three aspects of the cardinal virtue of “judicial justice” enable to judge to enact many of the more ordinary virtues appropriate to their role. According to Cardozo, these virtues include “intelligence and patience and reasonable discernment” (ibid., 163). One commonly-cited ordinary virtue of judging is the virtue of “courage.” According to Scalia, Judges are sometimes called upon to be courageous, because they must sometimes stand up to what is generally supreme in a democracy: the popular will. . . The chances that frail men and women will stand up to their unpleasant duty are greatly increased if they can stand behind the solid shield of a firm clear principle enunciated in previous cases (1989, 1180) Chief Justice Warren agrees, but points to an opposite danger, posed not by the will of common people but by the will of powerful people: Conformity to the wishes of the powerful would be the easiest [course] by far. To habitually ride the crests of the waves . . ., always agreeing with the dominant interests, would be a serene way of life. . . . As tempting as that might be, I could not go that way. . . . So many times in life the only permanent satisfaction one can find comes from bucking an adverse tide or swimming upstream to reach a goal (1977, 332; see also 335). Another commonly-cited ordinary judicial virtue is “temperance” or “self- restraint.” According to Chief Justice Warren, it is understandable that the Supreme Court “is particularly subject to criticism.” This is so “because most of its decisions are, as they say in athletic events, “close calls” and “judgment calls.” This places the Justice in the unenviable position of being subject to a great deal of criticism, but with one difference from the ordinary citizen: he cannot answer back. Instead, “Justices must take it in silence, leaving it to the people to form their own opinions concerning the Court’s actions” (Warren 1977, 319). 156 Moreover, Warren asserts, judges have a duty to limit their social contacts in order to prevent themselves from even the appearance of expressing an opinion on a justiciable issue. Thus, he remembers cutting “off all connection with the members of the press who had been so friendly with me through the years, and refrain[ing] from all public discussions” (ibid., 343). For Warren, this even required the rejection of most invitations to parties and social events (ibid.). Judge Wilkinson agrees, claiming that impartiality requires many adjustments in the day-to-day civilian activities of judges: Because judges must maintain a proper judicial demeanor both on and off the bench, they attempt . . . to ensure that the daily dealings of their lives remain polite. . . . While judges may certainly hold opinions, their freedom to express them is limited by the requirements of the office. Freedom to associate with persons whose cases may come before the court is circumscribed, and membership in certain clubs is discouraged, if not forbidden. . . . Impartiality is imperative . . .; the blindfolded woman holding the scales of justice in her hand never so much as cast a ballot” (1989, 785- 86). Clearly, though, given the nature of the judicial process, there will always be room for judges to act in non-virtuous ways. Thus, as seen in the previous section, a social practice model must include some deep-rooted processes, such as “tradition” and “narrative unity,” to foster and cultivate virtuous action. There is some support for these things in the personal reflections judges. The notion of placing oneself at the disposal of tradition is a common theme. According to Justice Cardozo, “[e]ven within the gaps, restrictions not easy to define, but felt, however impalpable they may be, by every judge and lawyer, hedge and circumscribe his action. They are 157 established by the traditions of the centuries . . .” (1921, 114). Thus, the judge must “cling for the most part to the accumulated experience of the past” (1924, 141). But, as anticipated by MacIntyre, these traditions are not monolithic. Thus, equally virtuous judges may disagree about the proper decision. Chief Justice Warren reflects on this phenomenon: “As everyone knows, individual members of the Court did not always agree with the result achieved in many cases. But I want say here, without equivocation, that I do not ascribe to any Justice who sat and disagreed with me on any occasion a lesser dedication on his part to defend the Constitution than I claim for myself” (1977, 332). Thus, judges may disagree about the outcomes of cases, and yet still see themselves as part of the same overarching community narrative. Further, the overarching traditional narrative within which judges find themselves may often require them to hold the community accountable to its own moral norms. According to Cardozo, “the judge is under a duty . . . to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason and good conscience” (1921, 134). There always exists the danger that, in fulfilling this role, judges will fail to hold themselves accountable to the community. This, he says, would result in a kind of “despotism,” which – even if benevolent – would “put an end to the reign of law” (ibid., 136). Nevertheless, “[i]f they are to fulfill their function as judges,” they must exercise this duty (ibid., 135-36). 158 Overall, the post-positivist, social practice account of judicial decision making and the rule of law described and illustrated in this section is summarized in Figure Three: 159 Figure 3: A Social Practice Model Community Language Virtuous Decisions Legal Practice Intra-Court Communication Faithful Interpretation Innovative Interpretation Legal Education & Training 160 E. Only Words? Despite its philosophical grounding and popularity with most judges, the social practice model might be a bit too idealistic. One major criticism that could be leveled against this model is that not all judges are equally committed to the community, language, and virtue practices adumbrated here in this chapter. Some judges – like some social scientists and law professors – scoff at the words of judges who claim to be motivated largely by legal norms. They claim that these judicial words are merely rationalizations for the exercise of personal, political, or other preferences. If we are to engage in something other than wishful thinking about the rule of law, we must also account for these alternative experiences. More specifically, we will need to be able to distinguish between judicial words that fulfill our rule-of-law expectations and those which do not. Toward that end, in the interest of full disclosure, I will conclude this chapter by presenting the experiences of judges that seem to undermine or contradict the social practice model presented earlier. The most obvious instance of a judge whose personal reflections do not show much fidelity to the community, language, and virtue norms discussed in this chapter is Jerome Frank (1970, 1965). One of Judge Frank’s most ubiquitous and well- developed ideas is that the judicial insistence on objectivity, certainty, and fidelity to preexisting law is a form of childish myth-making (see, e.g., 1964, 167-70; 1970, 75- 82). But unlike the innocent myth-making engaged in by children, Frank asserts, 161 judicial myth-making is dangerous. When inevitably debunked, it leads to disrespect for judges and courts (1964, 168). “Why, then, do judges deceive the public? Because they are themselves deceived. . . . The self-deception, of course, varies in degree . . . yet most of the profession . . . more or less believes [the] myth” (ibid., 168). So, then, judges’ insistence on their own fidelity to preexisting law constitutes nothing more than a “rationalization” designed to make themselves appear more rational than they are (Frank 1970, 32). This enables judges not only to deny their true motivations, but also to “maintain, side by side . . . beliefs which are inherently incompatible” (ibid.). Frank concedes rationalization is a normal part of all human thinking. So, why then are judges, in particular, so prone to this tendency? Why are there apparently “more rationalizations discernible in reasoning about law than in reasoning about many other subjects . . . ? Because lawyers, more than most men, are compelled to reconcile incompatibles” (ibid., 33). More specifically, unlike most other people, lawyers are constantly confronted with the “probability,” novelty, and “tentativeness” of major life decisions. This causes a heightened level of conflict with the normal “unconscious longing for . . . certainty, rigidity, security, [and] uniformity” (ibid.). By rationalizing – that is, by making it appear that the desire for “certainty,” et. al., has triumphed over the reality of “probability,” et. al. – lawyers are able to hide the depth of the conflict and thus function more effectively (ibid., 33- 34). Thus, Frank concludes, one of the major things held up by the social practice 162 model as a means of socializing future judges into the right values – their legal practice experience – is actually the primary means by which judges learn the art of self-deception. Beginning with this general claim of judicial self-deception, we can now move through each of the three elements of the social practice model, showing how each might be subject to a different interpretation. Rather than focusing on the constitutive effect of the legal-judicial community on the judge’s values, Judge Frank counsels us to focus more broadly on the constitution of the judge’s whole psychological make-up (1970, 119-20). “The peculiar traits, disposition, biases and habits of the particular judge will . . . often determine what he decides to be the law. . . . [W]e must know thoroughly that complicated congeries we loosely call the judge’s personality” (ibid.). Above all, this seems to mean that judges are not acting out the community rule-of-law value of “feeling bound” by law. Instead, judges are acting out of “trained intuition”; their decisions are merely based on the “hunches of experienced men” (ibid., 121). Other noteworthy judges have agreed with this assessment of judicial community. For example, Judge Richard Posner (1999, 1993, 1991, 1990, 1985) responds to the commonly-cited need to access the right community conventions in order to find the “right answers” by asserting that the legal culture is too rich to support only one “right answer” in difficult cases. The best judges can do in such a 163 heterogenous society is to craft a “reasonable” rather than a “demonstrably right” result (1990, 23-26). Frank’s perceptions of the significance and function of judicial language are also different from that of the social practice model. Rather than being a practical tool that helps judges moderate between the demands of the past and future, Frank sees legal and judicial language as an instance of “word-magic” (1970, 92). He sees judicial language as a clever outgrowth of the urge toward rationalization, through which judges carry out their childish myth-making. “Words . . . become our masters because the very nature of language fosters a belief in the independent reality of what are merely verbal contrivances. . . . We therefore make up words like Virtue, Liberty, Democracy, Freedom, and then forget that they are merely handy abbreviations” (ibid., 91). This is a particular problem for lawyers and judges because “the subject-matter of law excites a hunger for certainty even in men generally wary of the snares of language” (ibid., 98). More, “we would seem to be justified in surmising that the subject-matter of law . . . evokes, almost irresistibly, regressive emotions” (ibid.). According to this extreme realist view of judicial language, it is the decision itself – the action of resolving the concrete controversy before the judge, rather than the judge’s language describing that decision – that constitutes the law. The judge “or some third person . . . may choose to generalize from these decisions, may claim to find common elements in the decisions . . . and describe these common elements 164 as ‘rules.’” (ibid., 136). But those common elements “are, at best, some aid to lawyers in guessing or bringing about future judicial conduct or some help to judges in settling other disputes” (ibid., 136-37). Regardless of how “world-constituting” or “creative-evolutionary,” the chief purpose of the language used by judges to describe these helpful aids is simply to provide a post hoc formal justification for the decision already made (ibid., 140). Judicial words are thus “devices for concealing rather than disclosing what the law is” (ibid.). Posner’s pragmatist theory of law and judging is consistent with this approach to judicial language. He relies on an “activity theory of the law,” which he traces back to Holmes’ “predictive theory of law” (1990, 26). Like Frank’s view of legal decisions, this theory says that law is simply a prediction of what judges will do when confronted with a specific set of facts (ibid., 20-21, 225; see also Holmes 1897, 461). Under this “activity theory,” the law is not a collection of words gathered together in a statute or a precedent. Rather, the law “is something that licensed persons, mainly judges, lawyers, and legislators, do . . .” (Posner 1990, 225). Certainly, the activity of law can sometimes be accomplished by applying general language or concepts. But it can just as well be accomplished – in some circumstances even better – by other means. What these “other means” are will depend on the circumstances and upon what consequences are desired (ibid., 225- 26). 165 With regard to the interpretation of legal language, such as precedents or legislative statutes, Posner claims that these things are practically useful, but in a much more limited sense than posited by the social practice model. More specifically, precedents consist of authoritative information that is sometimes helpful to a judge in making a decision (ibid. 78-100; Posner 1999, 242). It is not clear, he claims, that judges strive for a smooth “fit” with precedent or an overall story of the law. Instead, he contends that “stability and predictability are merely two of the considerations” that go into a judicial decision (Posner 1990, 259-60). The task of legal interpretation, then, is not a primarily logical process, but a process of imaginative understanding based on shared experiences (Posner 1990, 101-05). However, unlike the way shared experiences are seen in the social practice model, Posner does not see these experiences as essential to the job, but rather as items without which judging would sometimes be more difficult. Finally, judges in the Frank-Posner mold are equally skeptical of the rule-of-law virtues that the social practice model posits as the end-result of community and language practices. In general, rather than acting out of a sense of moral duty or obligation to faithfully interpret existing general laws in order to reach particular conclusion about particular facts, Judge Frank claims that judges act instead in a result-oriented way. In other words, like all other human decisions, “[j]udicial judgments . . . are worked out backward from conclusions [already] formulated” or from the “results [the judge] desired to accomplish” (1970, 109-10). 166 Judge Posner agrees, claiming that judges feel little duty or obligation to secure consistency with preexisting legal rules (1999, 241). This makes sense, Posner argues, because arguments about moral duty and virtue are indeterminate and interminable (1999:52-53, 96-97). Instead, the goal of their activity is to craft the best possible result for the future. This requires a forward-looking attitude that “likes experimentation, likes to kick sacred cows, and — within the bounds of prudence — prefers shaping the future to maintaining continuity with the past” (1990, 28-29; see also 1999, 241-42). According to this view, certain ordinary virtues, such as “honesty” and “wisdom” are required by the judicial role (see Frank 1970, 148). But these ordinary virtues are actually undermined by a more thoroughgoing pursuit of larger virtues such as impartiality. “The correct course is to recognize the necessary existence of [the] personal element and to act accordingly” (ibid.). Typically, when this “personal element” becomes the primary lodestar of judicial action, focus on the cardinal virtue of “judicial justice” becomes secondary or non-existent. One can see this most clearly in the case of “impartiality.” For example, while many of Chief Justice Warren’s reflections are otherwise consistent with the assumptions of the social practice model, his reflections on impartiality evidence some agreement with the Frank-Posner position. Of course, he claims, “all judges realize when they assume the robe that they are not supposed to make the law.” But critics are nevertheless wrong to “complain that judges bring predilections to the 167 bench” rather than trying to “divest their minds of . . . experience[s] extraneous to the case itself” (1977, 7). Indeed, Warren concedes, “I am certain that my lifetime experiences . . . have had an effect on the decisions I have rendered . . .” (ibid.). But these experiences are not limited to those anticipated by the social practice model, such as legal training and education and legal practice. They include “even some of the earliest ones” in a judge’s life, which have formed his larger personality (ibid.). Thus, Warren concludes, impartiality is not an unalloyed virtue for judges to pursue. Indeed, anyone reading Warren’s memoirs will be struck by the overall absence of any extended discussion of legal principles or norms as a determining factor in his key decisions. Instead, over and over again, one sees him discuss his own personal experiences, or on the wisdom of the results, as the key to explaining his decisions on civil rights (1977, 285-306), reapportionment (ibid, 306-12), antitrust (ibid., 313- 15), Establishment Clause (ibid., 315-16), criminal procedure (ibid., 316-17) and other cases. Justice Douglas is more explicit about the prevalence of the “personal element” and the unimportance of “impartiality” in the life of an appellate judge. He relates how, in his earliest days at the Court, Chief Justice Hughes said something about the judicial process, “which at the time was shattering but which over the years turned out to be true” (1980, 8). This shattering but true statement about the process, returned to several times in the remainder of Douglas’ memoirs, was the following: “At the constitutional level where we work, ninety percent of any decision is 168 emotional. The rational part of us supplies the reasons for supporting our predilections” (ibid.). This turned out to match Douglas’ own experience on the Court. He cites Frankfurter and Black as the most emotional and most self-deceptive of the other justices (ibid., 33-34). But he ultimately concludes that “[n]o judge at the level I speak of was neutral” (ibid., 8). Nor is “impartiality” the only virtue minimized by Justice Douglas. He claims that – despite popular claims to the contrary – members of the Supreme Court rarely exhibit any courage. He asserts the “the state of public opinion will often make the Court cautious when it should be bold” and “may lead it to find many reasons for not taking up a controversial issue . . .” (ibid., 38). As examples, he cites, among others, ex parte Milligan, Korematsu v. United States, and Rosenberg v. United States, (ibid., 38-39; see also 102, 162). So, if the cardinal virtue of “judicial justice” does not account for a judge’s day-to-day activities, what does? According to Frank, the task of a judge is much more practical, but no less complex: “He must balance conflicting human interests and determine which of several opposing individual claims the law should favor in order to promote social well-being” (1970, 130). This calls for “a clear head,” or a “clear consciousness of their purpose” (ibid.). This necessary clarity can only be confused and muddled by a feeling of obligation to a “non-existent” authority (ibid.). Posner agrees, claiming that most of what judges do can be summarized as “practical reasoning.” He uses this term to describe “not a single analytic method or 169 even a family of related methods,” but a “grab bag that includes anecdote, introspection, imagination, common sense, empathy, imputation of motives, speaker’s authority, metaphor, analogy, precedent, custom, memory, ‘experience,’ intuition, and induction . . .” (1990, 73). Once judges have used these methods to reach the result they think is most reasonable, he argues, they use things like logic and morality to justify the result (ibid.). The overall result might be a decision that has great conceptual, logical, or moral power, but what makes it “law” is that it serves the needs of society or the parties. The rules that result from this process are justified not on the basis of community tradition or moral obligation, but on the basis of social and political utility (1999, 273-80). These views of the experience of judging are quite different from the ones discussed earlier in this chapter. Rather than feeling bound by the law in a manner consistent with the community, language, and virtue practices, within which they are embedded, judges in this alternative world are beholden to their own personal, practical judgments. But this leaves us with a confusing picture of judging as it relates to the rule of law? Is Justice Douglas correct that “[m]en of conscience are not easily tethered when given the sovereignty of judicial power”? (Douglas 1980, 195). Do all the judges in this latter tradition routinely violate the rule of law, or only some? Given the apparent differences in the experiences of judges, how are we to know which experiences uphold the rule of law and which do not? 170 These are the thorny questions, which I will attempt to answer in the remainder of this dissertation. In summary, I will argue that we must look even closer at judges’ own perceptions of their own experiences. The reasoning behind this argument is adequately summarized by Judge Frank: [T]he ultimately important influences in the decisions of any judge are the most obscure, and are the least easily discoverable – by anyone but the judge himself. They are tied up with intimate experiences which no biographer . . . is likely to ferret out, and the emotional significance of which no one but the judge . . . could comprehend. What we may hope some day to get from our judges are . . . elaborate explanations of the background factors in his personal experience which swayed him in reaching his conclusions (1970, 123-24). This kind of “elaborate explanation” is exactly the goal of the research summarized in the remaining chapters of this dissertation, to which I now turn. 171 CHAPTER FOUR: SEARCHING FOR THE RULE OF LAW – AN EMPIRICAL OVERVIEW In place of Attitudinalism’s outmoded external, instrumental account of how law fails to affect judges, the social practice model offers a more complex, “inside” account of judging as a mode of thought and action deeply constituted by rule-of-law norms. In short, this model proceeds on the assumption that focusing on law’s external, rule-bound manifestation is largely insufficient to explain how judges actually make decisions, and that focusing on how judicial consciousness is socially constructed by judicial institutions offers distinct comparative advantages. More importantly, the social practice model helps us understand how the rule of law might be upheld by judges in a more subtle – but no less significant – way than anticipated by rule-of-law skeptics. But those skeptics would still be justified in making two arguments against the approach taken here. First, they would also be justified in arguing that, unless and until this model can point to some observable qualities of the internal judicial experience, it will remain a set of plausible, but unfalsifiable, musings. For all its limits and faults, the Attitudinal model generates a robust and parsimonious explanation of the final votes on the merits of Supreme Court justices in certain cases. If constitutive New Institutionalists hope to engage in a meaningful conversation with these particular rule-of-law skeptics, they need to at least attempt to do the same. Second, rule-of-law skeptics might still be justified in arguing that the words of judges are unreliable guides to the truth about judicial decision making. 172 Of course, as partially illustrated in the last chapter, the social practice model matches the words many appellate judges use to describe their experiences. But, as illustrated at the end of that chapter, at least some judges, along with many if not most social scientists, question whether these words are only words. More particularly, they question whether the words of judges are simply an instance of motivated reasoning or psychological rationalization (see Segal and Spaeth 2002, 433-34; Segal 2006). In an effort to better understand whether the rule-of-law skeptics are correct, or whether the words of most judges accurately describe rule of law experiences, this chapter will provide the methodological framework for the empirical research discussed in the remainder of the dissertation. First, I will propose a typology of judging designed to help distinguish more precisely between judicial experiences that confirm the rule of law and those which do not. Second, I will describe my research with 24 federal and state appellate judges, which will be discussed further in the chapters to follow. Third, and finally, I will defend my research methods against several prominent criticisms, showing that a judicial interview study such as this one can produce valid and reliable evidence of judicial consciousness. A. A Typology of Judging As a preliminary step toward further illustrating the social practice model outlined in the previous chapter, we must attempt to distinguish between different modes of judging which might or might not uphold the rule of law. Four ideal types 173 of judging, drawn from the social practice model and its critics, are summarized below in Table Two. Table 2: A Typology of Judging Type General Definition Observable Qualities Rule-of-Law Upheld? 1. Formalist Feels bound by clear legal rules. Mechanical or rigid community, language, and virtue attitudes. Yes 2. Good Faith Feels bound by legal principles and frameworks, whether clear or not. Respectful community, language, and virtue attitudes. Yes 3. Cynical Doubtful of the value of legal rules, principles, or frameworks. Disrespectful or skeptical community, language, and virtue attitudes. No 4. Rogue Doesn’t feel bound by legal rules, principles, or frameworks. Instrumental or result-oriented community, language, and virtue attitudes. No There are two significant overall features of this typology that are important to understand. First, the four modes of judging summarized here are ideal types. They are not attempts to completely and exhaustively describe all modes of judicial decision making. Rather, they are attempts to abstract from the lived experiences of judging certain themes that correspond to the rule-of-law values and practices discussed in the previous chapters. Second, these are not types of “judges,” but types 174 of “judging.” That is, no individual judge’s overall decision-making attitude will likely fit neatly into any of these categories. A judge’s attitude in some cases or on some issues may fit into one type, while her attitudes in other cases or on other issues will fit into a wholly different category. While the decision making attitude of some judges may predominately fit one type or other, most individual judges’ attitudes will be an amalgamation of various types. In order to determine whether the rule of law prevails in appellate judging, then, we must seek to determine whether the attitudes of most judges in most cases fit into the ideal types that are consistent with rule-of- law values. The most obvious distinction made by this typology is between the two extreme ideal types described at the top and bottom of the table: Formalist Judging, which is objectively bound by existing legal rules, and Rogue Judging, which is not bound at all. The Formalist attitude toward law is very deeply constituted by the legal-judicial community, including its traditions regarding the use of language and the practice of judicial virtues – So deeply constituted in fact, that judges engaging in this activity experience few if any conflicts or difficulties deciding cases. The judge finds the correct legal principles and rules and deduces the proper result in neat, almost syllogistic fashion. Of course, as anticipated in the previous chapters, we would expect such judging to be rare in hard cases or on difficult issues. But it may very well be routine in the “run-of-the-mill” type of case, where there exists no serious disagreement over how to interpret the existing law. Good examples of the 175 formalist attitude are provided by those judges who claim to follow clear and perspicuous rules in most cases. As even a realist like Justice Cardozo puts it, “a majority” of cases “could not, with semblance of reason, be decided in any way but one. The law and its application alike are plain” (1921, 164; see also 129; Cardozo 1924, 60; Rehnquist 2001, 278; Kozinski 2004, 79; Coffin 1994, 258-60). Perhaps better examples, though, are provided by Scalia and other conservative judges who claim that even judging in the minority of “hard cases” are governed by relatively clear rules (see Scalia 1989, 1182-83). Regardless of how prevalent such judging is, it clearly upholds the rule of law, whether seen in the traditional or post-positivist way. On the other hand, the attitude described by the Rogue judging type is almost entirely disconnected from legal rules and principles. In this mode, judges simply decide cases according to their own preferences – whether political, social, personal, or otherwise. Given the possible consequences of such behavior, we would also expect this kind of judging to be rare, although there have been some notable historical examples. Former Alabama Chief Justice Roy Moore’s famous flouting of the U.S. Supreme Court’s Establishment Clause jurisprudence by erecting a monument to the Ten Commandments in his courthouse might be the best such example (Green 2005). Another great historical example might be Bush v. Gore, where both conservatives and liberals engaged in interpretations of equal protection and federalism that seemed to contradict their previously-stated best understanding 176 of those principles. However rare this mode of judging is, objective observers might agree that Rogue judicial attitudes and actions are contrary to any version of the rule of law. This leaves the two ideal types in the middle of the table: Good-Faith Judging and Cynical Judging. Good-faith judging’s attitude toward law is deeply constituted by the legal-judicial community, including its traditions regarding the use of language and the practice of judicial virtues. However, the relationship between the judge and the available legal rules and principles is much more complicated than anticipated by formalism. The judge realizes that, even with the proper education, training, and socialization, the correct legal rule or principle is often difficult to find, interpret and apply. Nevertheless, judges with Good-Faith attitudes feel a strong obligation to be faithful to their best understanding of the available legal materials. Judges seek this legal understanding primarily by self-consciously orienting themselves toward social norms, practices, and values they see as authoritative. I would argue that good examples of this attitude are provided by some of the judges in the last chapter, including Cardozo, Frankfurter, Rehnquist, and Marshall, who claim to be deeply influenced by legal-judicial community norms, language practices, and virtues. While such judges often disagree – and disagree strongly – with one another about the proper way to interpret the law, they are united in their attitude of feeling obligated to put aside their personal preferences and apply the law as they understand it. 177 The Cynical attitude toward law, on the other hand, may be only moderately constituted by the legal-judicial community, including its traditions regarding the use of language and the practice of judicial virtues. Not only is the judge’s attitude toward legal rules and principles complicated, but so is their attitude toward traditional interpretive norms, theories of jurisprudence, and certain judicial virtues. They may frankly acknowledge that such things have very little bearing on their decision making. They may still act in fairly traditional ways – appearing to follow controlling precedents and statutory language, justifying their decisions with the available legal and factual materials, and restraining themselves from any overt insertion of their personal preferences. Nevertheless, judges with Cynical attitudes are skeptical of the value of such things. They may even actively disrespect these kinds of actions, seeing them as merely post hoc rationalizations designed to hide the exercise of a personal preference. I would argue that Judges Frank and Posner – whose outspoken distaste for traditional legal theory is famous, but who nevertheless continue to decide cases within the bounds of community acceptability – provide great illustrations of this type. Similarly, Justice Douglas’s remarks that most Supreme Court decisions are made primarily by emotion rather than logic might provide good examples of this attitude. While some might say that these attitudes fit into the rogue type, because of their avowal of results-oriented reasoning, these judges all take great pains to justify their decisions through existing precedents and other acceptable legal norms. 178 The empirical difference between good-faith and cynical judging may be exceedingly difficult to discern. Many judges whose words profess good faith and who make every appearance of being deeply constituted by community norms may simply be parroting the words and actions best designed to cynically promote their own advancement or professional comfort. Conversely, many judges who express their distaste for certain community norms may simply be expressing a healthy disagreement designed to strengthen, rather than undermine, overall community goals. Despite this empirical fuzziness, however, the main thing to notice about these middle two types is that they are the ones that can most help us test the reformulated post-positivist concept of the rule of law outlined in this dissertation. If judges sincerely accept and endeavor to apply legal norms, the rule of law is upheld because judges are motivated by the kinds of faithful attitudes proper to a rule-of-law system. However, rather than being radically separate from legal rules, as the traditional model of the rule of law assumes, Good-Faith judges are bound up in the very same social network as the legal rules. The goals, values, and purposes animating judicial thought and behavior are not part of a one-way transmission from society, or the rest of the courts, to these judges. These goals, values, and purposes are dialectically related as parts of the same social-institutional relationship. This relationship essentially consists of the performance of a well-defined and socially negotiated role. 179 On the other hand, if judges cynically reject the value of legal norms, they are not motivated by the proper rule-of-law attitudes even if they otherwise act as if the law is authoritative. While they continue to play the role, they are apparently outside the social-institutional relationship that socially constitutes that role. If we are satisfied with the traditional formalist account of the rule of law, this may not matter as long as the judge continues to maintain the appearance of formal rule-following. However, as outlined in the previous chapters, the rule of law is more about judicial motivation than action. That is to say, consistent with classical and neo-classical virtue theory, it requires judges to do the right thing for the right reason. Thus, if judges are primarily motivated by disrespect or skepticism toward the available legal rules, they undermine the rule of law, even if in a very minimal way. B. A Methodological Overview The question now becomes: how can we accurately test for the prevalence of these types of judges in our legal system. Attitudinalists and Crits are both responding to the traditional conception of the rule of law discussed in the first section of this paper. But, as I have demonstrated, even the most conservative upholders of this traditional theory contend that the values and inclinations of the decision makers are the key to understanding how the rule of law works. Thus, it is not sufficient simply to ask whether there is a statistical correlation between the political attitudes of judges and their final votes. Certainly, political attitudes are important, but other attitudes are even more important. Indeed, if the post-behavioral 180 scholars I discussed in the previous sections are correct, the rule of law does not require the judge to put aside their own personal attitudes in order to become a passive instrument in the dead hand of the law. Instead, this more robust vision of the rule of law requires the judge to engage in a critical dialogue between their own personal attitudes and those of the legal-interpretive community. Above all, this requires the presence in judges of a certain pervasive orientation to the law. While some such data can be gathered through behavioral methods, much of it can only be uncovered through the use of interpretive methods designed to get at evidence of individual consciousness and meaning-construction. There is only so much inter-subjective meaning one can glean from cold documents and historical records. Even the most sophisticated interpretive techniques cannot wring from documentary evidence an answer to the question of what judges mean by their words and actions. Ethnographic research, including some combination of in-depth interviews with judges, formal observation of judicial activity, and document review seems to hold more promise in uncovering the socially constructed performances anticipated by this paper. (See Emerson 2001, 27-53; Creswell 1998, 58-61). This type of research has a tremendous advantage over more indirect, external methods: it allows the researcher to enter into a dialogue with the subject of the research. (See Weiss 1994, 13, 51, 75-76; Dexter 1970, 82-84; Gorden 1969, 275-77). Moreover, there is evidence that at least some judges are already somewhat sensitive to 181 behavioralist empirical claims that seem to conflict with their own understandings of their jobs and roles (see, e.g., Edwards 1998, 1337-38; Wald 1999, 270). In order to uncover more direct internal evidence of judicial consciousness regarding law and judging, I have conducted an interview study of twenty-four state and federal appellate judges in three different states. As in many such studies, sampling was complicated by the difficulty of access. Although Perry’s (1991) and Grey’s (1967) research suggests that access to even Supreme Court Justices is less difficult than one might imagine, courts in general are still relatively closed institutions. In order to overcome access problems, I have thus relied on a three- pronged strategy. First, I used my own contacts at courts where I have clerked, 20 as well as contacts provided by friends who know judges at other courts, to set up the first wave of interviews. Second, I constructed a snowball sample (see Weiss 1994, 20-21, 25; Dexter 1970, 42) of other judges to whom I was referred by the initial judges. Third, I also contacted several judges cold, telling them I had interviewed other judges on their court and asking them if they would also like to participate. I made the initial contact with each judge via e-mail. In that e-mail, I first introduced myself and mentioned who, if anyone, had given me their name as a possible subject. I then mentioned that I was writing my dissertation on appellate judicial decision making and was interviewing several judges on the state and federal bench. I asked if they would be willing to participate in a one-hour interview, and described some of the issues I was interested in. I promised to keep their identity 20 After law school, I served as a judicial clerk with an intermediate state appellate court and a federal District Court. At each of these courts, I worked for several different judges and became acquainted with several more. 182 confidential and gave them the option of being taped or not. Finally, I suggested some possible dates for the interview and asked them to reply to the e-mail if they wished to participate. A sample of this e-mail is included in Appendix A: All in all, I contacted a total of 45 judges: 17 federal judges, and 28 state judges. I received positive e-mails back from 27 judges, which resulted in a response rate of 60%. I scheduled and conducted interviews with 24 of these 27. Of the other three judges who initially responded positively, two were unable to schedule an interview because of time considerations, and the other declined once he found out that the interview would cover many items about which he had previously written. The resulting sample is summarized in Appendix B. As summarized further below in Tables Three and Four, the sample includes 6 federal circuit judges (25% of the overall sample), sitting in three different states. It also includes 4 state Supreme Court justices (16% of the sample), and 14 state court of appeals judges (56%) from two states. There are 17 Democratic appointees (68% of the sample) and 7 Republican appointees (29%). Table 3: Court Breakdown Court N % Federal Intermediate 6 25 Supreme 4 16 State Intermediate 14 56 183 Table 4: Party Breakdown Court Democrat Republican Federal Intermediate 4 2 Supreme 3 1 State Intermediate 10 4 N 17 7 Totals % 68 29 During the interviews, I asked the judges questions about their backgrounds, their attitudes concerning the law’s effect on her decisions, their perception of their roles, and their decision making philosophies and styles. All of the interviews took place in the judge’s chambers. They lasted between one hour and one and a half hours. 22 of the judges permitted me to audio tape the interviews, which allowed me to later generate formal written transcripts. For the remaining 3, I took detailed notes during the interviews, which I later turned into informal written transcripts. Substantively, the interviews consisted of informal, open-ended questions designed to engage the judges in a dialogue about their role and responsibilities, followed up by minor probing questions designed to clarify the judges’ attitudes (see, e.g., Weiss 1994, 13, 51, 75-76; Dexter 1970, 82-84; Gorden 1969:275-77). While every interview was different, the subject of the conversation generally followed the pattern set forth in an interview guide, included in Appendix C. After transcribing the interviews, I coded them using categories derived from the social practice model (see Codebook included in Appendix D). This coding involved three distinct analytic steps. First, I sorted the judges’ comments into one of three general categories anticipated by the social practice model: “Community,” 184 “Language,” or “Virtue.” For example, if the comment had something to do with legal education or practice, or with the interactions between judges, I would classify it under the heading of “Community.” If the comment had something to do with the interpretation of a precedent, statute, or constitutional provision, or with the specifics of inter-judge communication over opinion drafting, I would classify it under the heading of “Language.” Finally, if the comment had to do with something like impartiality, legal coherence, or instinct, I would classify it under the heading of “Virtue.” Second, I further sorted the comments within each general category according to the “observable implications” listed in Table Two. Thus, if the comment seemed to indicate that the judge was treating the community, language, or virtue practice in question in a mechanical, matter-of-fact way, as if it affected them in a straight-forward manner without much complication, I labeled the comment “Formalist.” If the comment seemed to indicate that the judge’s attitude was deeply sympathetic to the community, language, or virtue practice under discussion, and that they seemed disposed to follow that practice, I labeled the comment “Good Faith.” If the comment seemed to indicate that the judge was unsympathetic with the practice at issue – or even that they actively disagreed with it – but they indicated their willingness to continue following that practice anyway, I labeled the comment “Cynical.” Finally, if the comment seemed to indicate that the judge was both unsympathetic to the community, language, or virtue practice in question and indicated that the judge was unwilling to follow that practice, I labeled it “Rogue.” Of course, these 24 interviews only go so far in illustrating the usefulness of the social practice model, and of the rule-of-law typology derived from that model. 185 Not only do we need more “internal” research probing the subjective attitudes of more judges, but we also need more “external” research regarding judicial behavior that we might specifically compare and contrast with the words of judges. If nothing else, this “external” research will help us further distinguish between “Good Faith” and “Cynical” judges by clarifying the difference between what judges “feel” about their role in relation to the law and how they “act” in a manner consistent or inconsistent with those feelings. This might also help to judge the reliability of the words used by judges to describe their motivations. If judges consistently act in ways that are wildly at odds with their own account of their motivations, perhaps the rule-of-law skeptics are correct that judicial words are unreliable guides to reality. In the chapters that follow, I will review the data and further discuss how they relate to the larger question of the rule of law. Before doing that, however, in the remainder of this chapter I will deal with some common criticisms of interview research. C. Answering the Critics There are several methodological arguments that could be made against interview research, ranging from the extremely practical, such as how to gain access to judges, to the extremely theoretical, such as whether such evidence is valid and reliable. The practical issues need not detain us here, especially since they differ only slightly from the imminently solve-able difficulties inherent in any research 186 involving elite human subjects (see, e.g., Dexter 1970; Gorden 1969; Weiss 1994). 21 Thus, I will deal here only with the latter issues, which seem to pose the most consternation with more behaviorally-minded researchers (see, e.g., Conley 1993; Ulmer 1992). One argument made against in-depth interviews, including specifically those used on judges, is that such methods have less scientific validity than behavioral methods. 22 A popular validity complaint raised against interview research is that such research is necessarily less accurate because it is based on “insider information” rather than disinterested sources (see, e.g., Kobylka 1993, 533). Such complaints are perhaps understandable, but unfounded. First of all, there is no reason to assume that evidence obtained from human subjects is any less accurate than information obtained through other methods. Even in quantitative research, it is difficult to tell whether one is seeing something that is not really there (so-called Type I error) or not seeing something that is actually there (so-called Type II error) (Kritzer 1994, 722). More specifically, this complaint seems to assume that the researcher is asking the judge about factual events or occurrences that could be verified through some other more objective source of information. However, as is 21 Suffice it to say that these practical issues have been worked out in detail by other researchers who have attempted to use ethnographic research to study courts (see, e.g., Perry 1991, 10, 18-20; Howard 1981, xx, 304-05; Glick 1971, 17; Ryan, et. al. 1980, 251-52, 268-69, 273; Mather 1979, 7-8). 22 In general, the concept of validity refers to whether or not a researcher has actually seen what the researcher claims to have seen (Kritzer 1994, 721; see also Newman and Benz 1998). In slightly more technical terms, the basic question of validity is: “Do the observations meaningfully capture the ideas contained in the concepts?” (Adcock and Collier 2001, 529). 187 clear from Chapter One, the evidence necessary to confirm or deny the existence of the rule of law concerns the subjective meanings that judges ascribe to their tasks and roles. For this type of information, as argued above, speaking directly to judges is essential, and any other more indirect method seems invalid by comparison (see Levinson 1993, 723, n. 33). Finally, to the extent one is concerned about the accuracy of the more factual information provided by judges, one can use additional measures of the same phenomenon without abandoning the actor’s self- understanding. For example, in the conclusion of this dissertation, I will discuss other research tools, such as document analysis, which may be helpful in gathering data supplemental to the judges’ interview responses. In sum, the validity complaints about interview research seem to be based on a variety of unwarranted assumptions about such research considered in the abstract. When analyzed more concretely, there is no reason to assume that a study of law and judging based on in-depth interviews would be any less scientifically valid than behavioral research into the same phenomena. Another objection raised against this type of research concerns its reliability. In short, some argue that it is impossible to replicate interview research and that, therefore, the scientific nature of its conclusions cannot be relied upon (see, e.g., Coenen 1993, 181; Harvard Law Review 1992, 1797). Again, this complaint is based on faulty a priori assumptions about the nature of such research. If done in a systematic manner, an interview study such as the one contemplated in this project, 188 leaves many tracks for other researchers to follow, including: interview transcripts that can be re-analyzed, an interview guide that can be used to interview another sample of judges, and a code-book that can be used by other scholars to re-code the same data (see also Kritzer 1994, 722). The process of replicating this research may be more cumbersome than the process of replicating quantitative research. But even if it is a great deal more cumbersome, the fact that the research can be replicated means that it is not inherently unreliable, as the critics claim. A final, miscellaneous objection raised against the use of interview studies is that such research simply serves a different function than more quantitative or behavioral research. This criticism is usually offered in a complimentary way, with the author praising the research despite its clearly unscientific nature (see, e.g., Kobylka 1993; Ulmer 1992). For example, Sidney Ulmer claims that Perry’s interviews with Supreme Court justices are valuable in stimulating us “to think in new ways about familiar topics” even though such research cannot confirm or deny the findings of more quantitative researchers (1992, 811). This type of argument ignores the specific and obvious ways in which interviews have helped confirm or deny other empirical work. Examples include Perry’s (1991) partial confirmation and partial denial of bargaining and coalition theory, as well as cue theory and signaling theory, and Glick’s (1972) contributions to theories of judicial role orientation. Scholars may disagree over the specific findings that are drawn and how 189 they are applied, but it seems disingenuous to suggest that interview studies, by their very nature, cannot test hypotheses and confirm or deny empirical theories. Once the specific validity and reliability problems have been addressed, there seems to be only one reason to disparage the scientific nature of in-depth interviews: a deep-seated prejudice against qualitative research as such and a preference for more quantitative methods. Once the most weighty of these criticisms have been disposed of, the continuing methodological criticisms of interview work can be used as a motivator for New Institutionalists to be critical about the assumptions behind their research, more precise about the specific claims they seek to prove or disprove, and more cautious about the possibilities and limits of their findings. In the long run, addressing these criticisms in a forthright and even-handed way can only bring advantages to the kind of research described in this dissertation, to which I now turn. 190 CHAPTER FIVE: FORMALIST AND GOOD-FAITH DECISION MAKING “[A] lot of things become so settled . . . in the law that they are completely mechanical, completely cut and dried, and you don’t even think about them. They just seem like . . . ‘gimmes.’” --State Intermediate Judge “I think part of it is [whether] you see yourself as . . . the keeper of a particular flame or whether you are there to follow law that is independent of what judges say it is. . . . [I]f you come believing that the law is something external and larger than [you] are and . . . acknowledge that there are principles outside of yourself, then . . . you will have . . . a healthy skepticism of your own thinking.” --Federal Circuit Judge As outlined in Chapter Four, both Formalist and Good-Faith judging could be consistent with the reformulated rule-of-law values discussed in this dissertation. If judges act in a mechanical way – feeling and acting as if they are bound by clear and determinate rules – this would seem to be consistent with the traditional positivist notion of the rule of law as an observable pattern of objective rule following. For that matter, it would also be consistent with the post-positivist notion of the rule of law as an observable pattern of subjective fidelity to legal rules and principles. On the other hand, if judges act in a non-mechanical yet respectful way toward the available legal rules and principles – even if those rules and principles lack objective clarity – this will often be inconsistent with the traditional positivist notion of the rule of law. However, it might still be consistent with the reformulated post- 191 positivist version of the rule of law to the extent that it involves a subjective attitude of fidelity toward law. In this chapter, I will discuss the interview data that seem to support each of these two modes of judicial decision making. I will summarize the pattern of formalistic self-identification by judges, showing that approximately 25% of the judges I interviewed consciously identified “formalism” as an accurate description of their decision making. I will then examine the data showing a strong tendency toward formalism in “easy” issues or cases – those which do not involve major political or social disagreement. This tendency is fostered and reinforced by strong personal and institutional factors, such as pre-judicial work experiences that predispose judges toward rule-following, high levels of judicial agreement about the meaning of legal language in most cases, and rigid attitudes of deference to other members of the judicial and political community. It is also reinforced by several institutional language practices, including the widespread perception that the law is clear and determinate in most cases, the use of legalistic and technical jargon between judges, the procedural posture of many of the cases decided by appellate courts, the prevalence of statutory construction cases, which involve the interpretation of words in specific legislative contexts, and the experience of applying clear legal language regardless of an undesired outcome. Moreover, for many judges, formalism takes on a normative, moralistic quality that helps reinforce it as the virtuous pattern appropriate to all appellate judges. This is illustrated by a 192 strong reliance on the judicial oath of office, and strong mechanical attitudes relating to the traditional judicial virtues of “justice,” “impartiality,” and “wisdom.” However, in this chapter, I will also show how much more prevalent among the judges interviewed are the good-faith aspects of judging. Most of these judges frankly acknowledge that formalistic approaches to judicial community, language, and virtue are insufficient to accurately account for the totality of their own experiences. Legal rules and principles are often ambiguous and indeterminate – especially in “hard” cases involving “hot-button” political issues. This often leaves room for judges to disagree and also to make decisions that might correlate broadly with their personal political preferences. However, most of the judges insist that their decisions in these cases are motivated primarily by their good-faith interpretation of the available legal materials. This motivation is fostered and reinforced by various community factors, such as training received in law school and legal practice, intra-court community norms and practices, including the educative function of informal and formal discussions among judges, as well as extra-court norms and practices, such as an attitude of deference toward other political actors. As will be seen, the depth and breadth of this data concerning good-faith attitudes provides a credible and persuasive picture of judicial motivations consistent with the rule of law. 193 A. Formalist Judging Perhaps surprisingly for post-positivist scholars, many of the judges identified strongly with the formalist view of judging, at least for some types of issues or cases. Six of the twenty-four judges (25%) explicitly identified formalism as the theory that best described their decisions in most cases and on most issues (J- 6, 44-45; J-7, 25; J-8, 24-25; J-12, 21; J-15, 17; J-20, 23-24). 23 Even more judges identified with aspects of formalism in a more indirect way. After hearing my brief description of formalism or positivism as the theory that “judging is really constrained by external rules and that those rules really do dictate” outcomes, one state intermediate judge acknowledged, “I'm in that camp . . . [f]or the most part of most cases” (J-6, 44-45). Another state intermediate court judge blurted out, “I think that’s correct” immediately after I described formalist/positivist theory (J-7, 25). Perhaps anticipating that this might be counter- intuitive, another state appellate judge explained, “for the most of the stuff that we come up with, it’s the positivism . . . and it’s sort of like . . . the other stuff gets the focus . . . because it sticks out” (J-12, 21). Nor is this identification with formalism/positivism limited to state appeals courts. One federal circuit court judge described his romance with formalism in particularly evocative terms: I would like to be able to say that I’m a formalist – I believe in . . . old-school formalism, like the English common law judges who applied the rule of law . . . . [For the] facts that come before us in the courtroom calendar every day [we] still look for the proper rule to apply to those facts. When I slip up is where I fall off of the straight and narrow and maybe follow a wavy line. 23 All references are to interview or field-note transcripts. 194 And I think all judges who try to follow the formal rule[s] are guilty occasionally of slipping off, like the loyal husband who’s indiscreet once . . . It’s not anything to brag about, but it happens. (J-15, 17). 1. Community Influences For those identifying strongly with the formalist or positivist account of judging, it is a personality trait that begins early in a judge’s life, is strongly influenced by legal education and practice, and is decisively reinforced by judicial institutions. The philandering federal circuit judge quoted above pointed to his military experience as a strong influence on his rule-following behavior: “The preparation for [formalist decision making] was that I spent four years in the army on active duty. And that was actually good preparation . . . because I learned to follow orders and follow the law, follow the rules” (J-15, 1). This predisposition toward rule-following is reinforced by the practice of law: “I think the better lawyer you are the easier it is to be disciplined about it. Because law is a disciplined study. It’s a study of principles and rules.” (J-15, 6-7). According to one state appellate judge, this personal and professional disposition toward disciplined rule-following was perfect training for the mechanical aspects of the judging process: J-3: . . . I vaguely recall coming into this job thinking that it was pretty straight-forward, that it was a question of — at least for the most part — reading the cases, reading the statutes, figuring out what the answer is, writing the opinion, moving along, and that there were very few opportunities for disagreement. Except, of course, in those cases where the statute or the Constitution kind of sets up the court for value judgments . . . But . . . that matter aside, I had envisioned the 195 job in fairly mechanistic, Nineteenth Century terms: look up the law, apply it to the facts, write an opinion, move along. JW: Certainly, thinking of Hart’s old notion of law as a system of rules . . . that actually constrain . . . Almost having an external force. You feel these obligations. J-3: Right . . . almost ten years later I still think that, by and large, that’s what we do. . . . Either you missed the filing deadline or you didn’t; either you have standing or you don’t; either you satisfied whatever the requirement of the statute is or you didn’t. And there’s no debating it one way or the other. JW: So that still seems like almost a mechanical kind of process. J-3: It is. (J-3, 6-8). Even for a state supreme court judge, this mechanical process is strongly reinforced by the prevailing formalist logic of decision making on her court, which must be adapted to in order to survive: [T]he intellectual model of decision making is a very Aristotelian, male, inductive, logic system. Is that necessarily how women make decisions on all matters? No. Is it how you make a decision if you wish to succeed in this environment? Yes. . . . We’ll turn you into a Positivist in a big hurry if you wish to be successful. (J-4, 13, 17). Perhaps as a result of this strong socialization into Formalist/Positivist habits, many of the judges report very high levels of intra-court agreement on most cases and most issues. Some judges describe their levels of disagreement as “[v]ery, very infrequent[]” (J-6, 41-43), occurring in only “about a handful” of cases (J-22, 7-8). More specifically, other judges place the number of cases at very low levels. For example, one identified “five or less cases” where judges significantly disagreed in twelve years on the bench (J-8, 17-19). Another put the figure at “a dozen maximum” in four and a half years (J-10, 9-10). In terms of percentages, responses 196 include five percent or less (J-6, 23-24; J-15, 12), five to ten percent (J-20, 22; J-22, 6-7), 10% (J-12, 15-16; J-17, 13-14), 15% (J-9, 32-33), 20% or less (J-8, 7; J-12, 12; J-13, 21-22; J-14, 14), 25% (J-10, 11-12), and between 25 and 30% (J-3, 6-7). Only one judge placed the significant disagreement rate above 30% – a state appellate judge who placed the rate at 50% (J-5, 7-8). There does not appear to be any difference between federal and state courts with regard to perceptions of disagreement – the above list includes a smattering of both state and federal intermediate judges. However, most of the judges listed are intermediate judges. The only high court judge included in the above list – J-13 (a state supreme court justice) placed the rate at about twenty percent, but none of the other three high court judges produced relevant data on this question. Thus, there may be a difference between the perceptions of intermediate judges and high court judges. Indeed, many of the intermediate judges point to their court level as a possible reason for the prevalence of formalist decisions. One factor associated with intermediate courts is the judges’ perception of being hemmed in or constrained by a variety of statutory and precedential rules. For example, according to one judge, “[p]art of [the explanation for high levels of agreement] is because we are an intermediate court, and there’s so much in the way of statutes and precedent that bind us. We have very little opportunity to ‘fudge,’ if you will” (J-3, 6). When I asked the same judge whether the different institutional missions of an intermediate court and a supreme court translate into a 197 more constrained role for the former and a more free-wheeling role for the latter, he wholeheartedly agrees: Absolutely. We are constrained . . . . [W]e are governed, even in the interpretive approach that we bring to the task, by precedent. And that’s very different from the Supreme Court’s job in deciding in the first instance what interpretive approach to bring to the task — they have that freedom. . . . [T]he Supreme Court has the freedom to try to make sense out of its own cases. We can’t do that. We don’t have the same leeway in trying to make sense of the Supreme Court’s cases. (J-3, 10-11). Thus, according to another judge, formalism comes with the territory of being an intermediate judge: “[we] are required to deal with a level of formalism because . . . [p]art of our job is to decide ‘what’s the law as it applies to this? Was it applied correctly?’ We have our standards of review and if you follow our process, it’s formalistic. . . . That’s a functioning presumption” (J-19, 21-22). This perception of the role differences between judges on different courts translates into a widespread attitude of near-mechanical deference to other institutions. Of course, this rigid deference is owed to higher courts. According to one federal circuit judge, “[w]riting an opinion at the Supreme Court is entirely different from writing an opinion at the circuit court level because we’re writing constrained by what the Supreme Court tells us is the law . . . . (J-14, 2). But this kind of strict deference is also in order when an intermediate court reviews a lower court decision because of the standard of review, which is “about the most important thing guiding appellate judges. . . . You have to go by those rules. Or . . . we're just 198 second-guessing and . . . [it’s] not supposed to be like that” (J-6, 34-35; see also J-7, 22-24). This kind of deference also extends to the political branches. For many judges, such deference also takes on a kind of mechanical quality: If at all possible I will defer to the other branch and what they’ve done if it’s within the realm of what they’re allowed to do. . . . [W]e’re required to do that. . . . In other words, at all times I’ll try and avoid the direct conflict with the other branch. J-8, 10-11. More specifically, judges often refer to the actions of the legislature as particular deserving of formalistic deference: “I think there are cases where formalism is hugely at work. You know, we’ve got cases that are pretty cut and dry . . . . I mean, the rules are settled [and] [w]e’re not about to change them.” For example, if “[t]he legislature hasn’t changed anything . . . for years[,] . . . nobody’s gonna argue . . . under what circumstances breaking and entering is a burglary . . . right? . . . .” (j-25, 35-38). What makes these examples of deference particularly interesting is the conspicuously mechanical attitude judges often take toward rules laid down by or regarding other branches. Notice the rigid, mechanical language used in the following quotes: [A] lot of things become so settled and similar in the law that they are completely mechanical, completely cut and dried, and you don’t even think about them. They just seem like such ‘gimmes’ (J-25, 35-38). Well, I just look at what the case law says about, you know, when you're supposed to defer to the legislature or the administrative body. And what . . . 199 you defer on and what you don't. And I try to follow the rules, really (J-6, 34-35). So there’s something that is second nature. You know, . . . the legislature makes the laws . . . and the people make the choices they make and that’s a policy choice that we don’t make unless there’s some Constitutional limitation (J-11, 16). This sort of language about certain rules about deference being “completely mechanical,” “cut and dried,” “gimmes,” or “second nature” provide colorful evidence of a deep-seated community preference for formalistic decision making in some cases. 2. Language Practices These community practices are apparently reinforced by the formalist way judges sometimes talk and reason together about the process of legal interpretation. One is immediately struck by the level of clarity many judges claim to see in the available legal materials. For many cases, even at the state supreme court level, “there’s a pretty clear answer” based on clear statutes or precedents (J-11, 19). Indeed, because of this clarity, “[o]nly an infinitesimally small number of cases involve an issue on which the decision turns on how you look at things” (J-18, 2). “most of this stuff is pretty straight-forward” (J-3, 8). Perhaps the reason for these perceptions of clarity is that, according to another state supreme court judge, “ninety percent or more of what we do is statutory interpretation or constitutional interpretation, for which we have well-established methodologies . . . so it’s not just a fishing expedition” (J-4, 8). Other judges place the percentage of cases guided by 200 clear and unambiguous law at similarly low levels, such as 97-98% (J-25, 31), or 90- 95% (J-3, 8; J-4, 8; J-15, 12-13). Only one judge who agreed to provide an estimated percentage placed the percentage of cases controlled by clear language below the 90% range – a state intermediate judge who vaguely referred to “well over half” of his court’s cases (J-19, 7-8). Whatever the percentage of cases controlled by clear and unambiguous rules, the formalistic result of legal clarity was aptly stated by one state supreme court justice: “If the Constitution is clear, or the statute’s clear, you follow it. It’s that easy” (J-11, 25-26). This formalistic, mechanistic attitude toward clear rules is clearly reinforced by the kind of language used by and between judges. When describing the communication between judges on their court, many of the judges point out the ubiquity of legalistic language. According to one state supreme court justice, “[w]e don’t talk about fundamental things. We talk about: ‘has Plaintiff stated a claim for Inverse Condemnation by alleging negligence rather than intentional, purposive act?’” (J-4, 16-17). According to another state supreme court justice, it is also the norm for other justices to refer primarily to legal authorities in their discussions of cases under review: How do you know . . . what drives the decisions here? Even when you’ve read the briefs and heard the oral argument, you may say, ‘Boy, I just don’t know enough. I have not read enough of the precedents. I haven’t looked carefully enough at the way the statute is structured and I’m a question mark.’ (J-13, 20). 201 In interpreting these statutes and precedents, some judges report a legalistic, mechanistic reliance on basic sentence structure: “I always look first at grammar and syntax. . . . What is the subject of this verb? What is the antecedent of this pronoun? And you’d be surprised at how many times it has resolved ambiguity . . . .” (J-10, 2- 3). This is useful because of a basic assumption that “[w]ords have meaning” and that this meaning is clear in most cases and for most issues (J-10, 2-3). These high levels of language formalism, however, do not apply across the board. Indeed, the judges distinguish, in a very sophisticated way, between different levels of clarity in different types of cases (e.g., J-4, 5-6; J-10, 15). Most obviously, most cases are disposed of summarily without much discussion. What makes these cases so easy to decide, one state Supreme Court justice agrees, is that the facts and law are “pretty clear” (J-4, 5-6). Some judges explained this surfeit of easy cases, with clear, unambiguous law, on the “traffic-light” phenomenon – the fact that many appellants are just exhausting their remedies in order to fulfill the requirements for review by a higher court (J-4, 4-5; J-12, 15-16). The most common cases that fit into this category are criminal appeals involving either sentencing or post-conviction relief (ibid.). But, even among the cases that are fully heard and decided, the judges report a good deal of language clarity. Sometimes an opinion is written in order to send some kind of new message to the bench and bar, or to emphasize something old that has been ignored for a while. But these may still be “pretty straight-forward” 202 decisions that “inexorably follow from statutory language about which there is no reasonable dispute, or are controlled by case law that – whether you agree with it or not – is controlling, [and] that’s all there is to it” (J-3, 6-8). Among the many examples given to illustrate these clear, straight-forward situations are cases involving: filing deadlines or statutes of limitations, standing, preservation of error, defects in criminal charging documents, and application of sentencing guidelines (J- 3, 6-8; J-4, 4-5; J-15, 3-4; J-25, 30). By far the most commonly-mentioned issue that seems to fall into a language-formalist category is that of statutory interpretation. For many courts, there are specific methodologies and levels of analysis that need to be followed in order to ascertain the meaning of statutory language. These levels typically begin an examination of the text of the statute itself, and then move on to an examination of legislative history, or other measures of legislative intent. One state Supreme Court justice, while acknowledging the ambiguity inherent in making the decision to move from that first level to the others, nevertheless recounts her formalist attitude toward dealing with that first level: [I]f I had a situation where the statute says unambiguously the sky is green, but the legislative history makes clear, “we meant: the sky is blue,” . . . . [I]f [t]he first level says “the sky is green,” legislature, we’re going to hold you . . . to what you said . . .” (J-4, 15). In the pithy words of another state intermediate judge, “the statute says what it says, means what says, and you do what it says” (J-7, 11-12). Even one federal circuit court judge who exhibited a great deal of contempt for the theory of judicial restraint 203 in other parts of the interview seemed to become a formalist when discussing statutory interpretation cases, acknowledging that he had an “obligation” to the text produced through the legislative process (J-10, 8-9). One of the most striking things about this data is the way judges recount their obligations to follow the clear language of the law no matter what the consequences. For example, one judge recounted her decision-making method in a very politically sensitive, newsworthy case that made national headlines: all she had to do was “read the record, examine the controlling authorities, [and] follow the standard of review” (J-23, 3). This kind of formalist attitude appears to include a quite rigid role- conception that requires the judge to ignore their personal preferences in deference to the words of the law. As one state intermediate judge relates, she often faces textual interpretation issues that cause her to say, “I wouldn’t have done it that way, but that’s not my role” (J-23, 2). This does not mean that the judge is uninterested in the issue; but that they make a great effort to build a kind of firewall between their own preferences and those of the authors of controlling legal texts: I can give you countless examples in this court . . . of situations where the . . . statute says something [where] they couldn’t possibly admit that they thought about this situation, but by, God, that’s what they said. . . . And we do follow [it]. We do. And I don’t want my background to have a damn thing to do with that (J-9, 20). As an example, one state Supreme Court judge recounts his own personal discomfort with the harsh minimum sentences required by some criminal statutes, including death penalty statutes: 204 I mean we affirm . . . convictions for sentences that are unbelievably harsh, that . . . I as a member of the legislature – if I had any guts – or as a philosopher king would say, “This makes no sense at all.” . . . I mean the death penalty makes no sense, or very little sense in most cases . . . and yet, I’ve written two, [and] I’ve joined in ten . . . cases affirming death penalty convictions. It’s – as far as [state] law is concerned and federal law, if they jump through the hoops, you know, it’s open and shut (J-13, 3). Another judge recounts a different kind of example where she had to follow statutory language requiring a breach of confidentiality in juvenile delinquent counseling sessions. The judge felt that revealing these details would produce disastrous consequences for future cases. Nevertheless, the judge recounts, “that’s the way the statute read” and “given my judicial role, I have to do it this way” (J-25, 28-30). 3. Formalist Virtues When questioned further about their judicial role, and how they conceive their professional obligations, the most striking responses have to do with their strict – almost moralistic – attitudes toward the oath of office (e.g., J-4, 17-18; J-7, 5-6). For example, when I tell one state Supreme Court justice about the Attitudinalist account of judicial decision making, she replies: “I don’t think anybody can take an oath of judicial office and take the Attitudinal approach. If they can, they’re liars and they don’t belong here” (J-4, 17-18). A state intermediate judge picked up on the same theme, focusing on the oath’s requirement of impartiality: “[A]s a judge, it’s your responsibility to push [bias] aside as best you can. And there’s gonna be cases where you do it well and there’s gonna be cases where it sort of lingers on. 205 But your job is to overcome it. That’s your responsibility. Your oath demands it . . .” (J-7, 5-6). More specifically, many of the judges appear to have a similarly rigid attitude toward the notion of “justice” or “fairness.” One federal circuit judge astutely reviewed the history of western judicial roles in order to illustrate his formalistic insistence that judges should strictly adhere to external rules rather than following more general notions of justice: Justice is a subjective thing. You know, the English Common Law . . . [with] the chancellor sitting on the wool-sack and being equitable, . . . didn’t necessarily follow the law as Parliament had laid it down. Equity could do things that the King’s Bench couldn’t do. But that has kind of been replaced – that economy of law and equity has been replaced by positive law going down the line without regard to the old boundaries between law and equity. You have positive law across the board. So there’s not much room for judges to do justice (J-15, 13-14). A state intermediate judge had the same negative attitude toward contemporary expectations that judges should follow broad principles of justice or fairness. Notice, to the contrary, how closely her language matches the expectations of formalist rule-following: I was talking to a group of lawyers once, and they were saying, "But what about doing justice? Isn't that your job, too?" And I said, "You know, it really isn't." I mean, if that were the case, then it would be total chaos. There would be no system of law. Every . . . judge could say, "Well, this is what I think justice requires regardless." . . . I am a rule follower. I think that that's what the whole legal system is about. . . . I just don't think that we're free agents out there, calling them like we see them (J-6, 12-14). 206 With regard to the virtue of impartiality, the judicial responses that fall into the category of “formalist” are clearly distinguished by the strictness with which the judge appears to view this obligation. For example, one state intermediate judge used some striking martial imagery, drawing inspiration from one of Douglas MacArthur’s famous speeches: We have political organs out there to deal with these political issues, but we’re to be impartial. . . . Douglas MacArthur in his speech at West Point, . . . that’s the Duty, Honor, Country speech – at one point he’s talking about the role of the army officer and he says the great issues of our time are matters for others. And I’m paraphrasing but pretty closely: “And through this . . . change and development, your mission remains fixed, determined, infallible. It is to win our wars. Everything else in your professional career is but corollary to this vital dedication. All other public purpose, all other public projects, all other public needs, great or small, will find others for their accomplishment. But you are the ones who are trained to fight. Yours is the profession of arms, the will to win, the sure knowledge that in war there is no substitute for victory, that if you lose the nation will be destroyed. The very obsession of your public service must be duty, honor, and country.” I would argue, and I’ve argued this in public speeches I’ve given, the obsession of our public service must be impartiality. That must be a passion. . . . All the concerns, the political disputes of our society, the cultural disputes of our society, these are for others to deal. . . . (J-7, 3-5). When I followed up with the same judge, asking how difficult it is to live up to this ideal, he replied with the same insistence: “[W]hatever the law says is what you do . . . . And your reaction . . . simply has to be put aside. You put it aside. . . . [A]re there gonna be cases where it may . . . rattle your cage . . . ? Sure. But it’s your job to put it aside” (J-7, 18-19). Picking up on this same imagery “putting aside” personal preferences, another judge used some more graphic formalistic language: 207 I’ve never denied that I have personal opinions about underlying political issues, about right and wrong in some moral sense in the context of a case. I’m a human being; all judges are human beings, and all judges, all human beings, have feelings about cases. But I think one of the occupational qualifications is to recognize that and to make a conscious choice not to have that affect the way you make your decisions. I just think it would entail an enormous amount of self-deception to say, “No, I don’t have personal feelings about these cases.” Of course I do. But the good judge — one of the characteristics of a good judge, in my opinion, is somebody who will recognize those, put them in a box, and put them on the shelf. You can do that. That’s a skill that characterizes a good judge. And most of the judges that I’ve worked with do that (J-3, 20-21). Many of the other judges express this same idea with different examples and different imagery: “You just don’t think about it – it’s none of your business . . . You think about “what’s the law?” (J-15, 7); “I may have been chosen because I have a strong moral compass for me, but if so, that was because I was of my integrity as a person, not because of the moral view that I will implement as a judge. . . . We’re not philosopher kings” (J-13, 27-29); “I think we’re very aware of . . . our role . . . to . . . do the best we can to decide this case based on the legal issues that are presented. And I think we do. It’s not our job to say, “Gosh let’s look at [the statute] for any hole in it that we can use to torpedo this thing.” That’s the plaintiff’s job.” (J-13, 8-9). The connecting thread in these and other answers, though, is the rigid and mechanical language these judges use to describe their impartial role (see also J-10, 10-11; J-15, 13-14). Indeed, some of the judges are so rigid about the impartiality role that they believe a judge should recuse herself if she has strong personal opinions about an issue in a case (J-7, 19-22; J-15, 13-14). Overwhelmingly, the judges speak about their obligation of impartiality in a way that carefully separates the judicial from the legislative role. Both state and 208 federal, intermediate and high court, judges frequently refer to the stark difference between what they would have done as legislators versus what they must do as judges. According to one federal circuit judge, “a lot of times . . . as a judge, I’ve enforced . . . laws that I’d have voted against if I was in Congress . . . [T]he fact that I would have voted against that particular law if I’d have been in the Congress doesn’t affect the way I look at if it comes before me for enforcement” (J-15, 7). This same judge took a decidedly moralistic tone when describing the opposite role- orientation: I think most judges are made of strong enough stuff so that they don’t feel [like overriding the legislature]. And if they do, they should resign and run for Congress. Because if you’re really interested in policy-making, you should be in the legislature, not on the bench. If you have a political agenda, you should never ever apply for a judge-ship. . . . Some people are miscast if they go on the bench with a political agenda . . . . [T]hat’s judicial activism in its least excusable form (J-15, 8) A state Supreme Court justice echoed this same moralistic attitude toward judges acting legislatively: They are the policy-makers. If I wanted to be making public policy, I’d run for the legislature. . . . I think we are duty-bound to tell them how we are going to look at their work, so that their policy can be expressed, rather than us becoming a second little legislature (J-4, 8). Even one federal circuit judge who exhibited a good deal of cynicism toward traditional views of judging elsewhere in the interview, expressed a very traditional role-orientation with regard to the legislature: I have views of the Constitution that differ from what the Supreme Court says but I’m not free to apply those once they’ve settled the question . . . . But once they’ve settled the issues, you’re bound by that . . . . [I]f you’re a 209 legislator, you can try to change that. You can vote . . . to change laws. On the court, you can’t. If you don’t like the law, you can’t change it. You have to apply it (J-16, 6). This kind of duty-bound attitude of strict separation between the judicial and legislative roles is very common among the judges I interviewed (see, e.g., J-20, 23- 24 (“We don’t have the discretion to make law”); J-15, 13-14 (“it’s very rare in the judicial function for that justice idea to take over. It’s something that ought to be addressed by the legislature”); J-7, 10-11 (“These other issues of whether the legislature acts irresponsibly, . . . those are matters for others to deal with”)). This appears to further bolster the formalist understanding of the judicial role as one of strict and rigid impartiality. Beyond the first two virtues of “justice” and “impartiality,” there is also much support for a formalist approach to the third virtue: judicial integrity. The imagery often used to discuss the feeling of obligation to know and follow existing legal frameworks is that of being externally controlled or constrained. For example, one state intermediate judge says “I don't feel . . . that I have free rein to reach whatever result I think is right” (J-6, 45-46). After all, says one of her colleagues in another appellate district, “[t]hey call it controlling authority for a reason” (J-7, 26- 27). Indeed, this latter judge was particularly adamant about his obligation to follow controlling authority in a formalistic way, as is evident in the following exchange: JW: And you do experience that . . . it has a kind of external force on you in a way. 210 J-7: You mean on the decisions of the [state] Supreme Court, language chosen by the legislature, language appearing in the Constitution? Yeah, okay. JW: Okay. Fair enough. J-7: Yeah. Yeah. JW: I’m just gonna put a big “Yeah.” J-7: Yeah. You can put in there “One jurist said, ‘Yeah!’” with an exclamation point (J-7, 26-27). More specifically, many judges use this kind of “controlling” or “constraining” language to discuss their obligation to follow precedent in a kind of mechanical way. Again, martial imagery seems to be popular to describe this phenomenon, likening the judge’s role to that of a soldier: [T]here was a case that went to full court in which I wrote the majority opinion. It was squarely controlled by a 1936 case of the [State] Supreme Court. . . . I thought, at the time, that . . . the ‘36 case was not a very good case, but it had never been overruled . . . . I’m . . . inclined to say: “This is the precedent. It has not been overruled. I have to follow it until the Supreme Court says otherwise.” And I may get frisky enough to actually say in a footnote, “gee, this doesn’t make any sense, but it’s still controlling so, being a good soldier, I’ll stick with it” (J-3, 11-12). Another judge is careful to underscore the rigidity of his approach to precedent: “I think it’s a matter of responsibility on the part of an appellate court judge to obey the decisions of the . . . Supreme Court . . . . We do what they say. I’m very rigid about that. . . . [I]f you don’t want to do that, then go get another job (J-7, 14). The rigidness of the formalist attitude of obedience to the law is illustrated further by the judges’ feeling of obligation to follow the rules regardless of the outcome. One state Supreme Court justice describes his own internal dialogue with the legislature regarding their policy choices: “Yeah, fine. I’ll be as dumb as you 211 want me to be. You know? Not a policy I would have voted for, but yeah, you can do it” (J-11, 3-4). Another justice on the same court gave some examples of outcomes he opposes but regularly enforces: [I]n the criminal law, . . . [there are] things that I think are ridiculously punitive. . . . [and] certainly some of these ballot measures, when are they sort of at cross purposes . . . . [Y]ou don’t get to appeal from this decision of the Workers’ Comp. Board. Well, gosh, that doesn’t seem quite fair. And yet, you know, it’s absolutely cut and dried . . . . (J-13, 24-25). Further examples of undesirable outcomes are provided by a state intermediate judge: [D]o I think . . . the rules on sentencing in this state are good rules, logical, cost effective . . . social policy? No. . . . [D]o I file dissents in those cases now? No. Because that issue’s been decided by the state Supreme Court . . . . Have I . . . allowed . . . somebody who’s actually guilty to have a retrial? I suppose there’ve been some cases . . . not . . . murder cases, but on others where there’s a speedy trial problem or they throw out some evidence in a questionable [manner]. . . . You know, that’s what the law requires. Do I think that’s, you know, the best social policy? No . . . [As] one of the judges . . . says, “if you can’t stand the heat, don’t go in the kitchen” (J-12, 10-11). A federal circuit judge gave another particularly gut-wrenching example of a type of case where the rule compels an outcome with which the judge whole-heartedly disagrees: [W]e have a lot of asylum cases and a lot of immigration cases and we send people out of the country who have families here, young children, and you look for a way not to do that if you have a heart, and not all judges do by any means. But there are cases where you can’t. The rule is there. It’s a bad rule and you just don’t have any choice (J-16, 9). 212 Thus, according to these judges, the law is often perceived as an externally imposed obstacle to personal notions of fairness: “there are cases where you can’t be fair, you know? Where you just don’t have the freedom to do anything. I mean, the law is clear (J-16, 9). So sure are these judges of the moral virtue of their own traditional formalist attitudes, some of them are quick to pass judgment on the different attitudes of other judges. Indeed, their judgments can be quite severe. For example, one state intermediate judge referred harshly to judges who try to get around plain statutory language: “I don’t doubt that there are judges who [say], “Well, we got some legislative intent here. We can circumvent [plain meaning]. I don’t doubt that there are judges who do that and they’re bad judges” (J-7, 12). This same judge went further in describing, in particularly grand terms, the moral shortcomings of a non- formalist approach: And today when we as judges . . . don’t achieve those high goals, we fail. We fail. Our roles are important roles. When you’re talking about enforcing the Constitution, that’s vital. That is a vital act of a judge. And Oliver North has got this great line. You know, he was . . . taking the Fifth Amendment. . . . Well, all of his Republican friends said, “Why are you taking the Fifth Amendment? . . . [I]t’s like you’re like a common criminal.” And he said, “Marines died face down in the mud all over the world for the Fifth Amendment” (J-7, 26-27). This comparison of judicial rule-following to military heroism underscores the deep moral value judges often place on the virtues that flow from formalist decision making. For these judges, on these issues, formalism is not just one choice among many; it is the only conceivable way of being a judge at all. 213 The formalist attitudes exhibited by the judges are summarized in Figure Four: 214 Figure 4: Formalist Social Practice Community Language Virtue Training for rule- following High levels of agreement Rigid role differences between courts Mechanical deference Legalistic terminology Clarity and determinacy Formalist interpretive techniques Mechanical 215 B. Good-Faith Judging A much bigger percentage of the judges I interviewed consciously identified themselves with the “Good Faith” style of judging identified in Chapter Four. When I summarized this approach for the judges, including a brief discussion of the work of Ronald Dworkin, 10 of the 24 (approximately 42%) identified this as the most accurate description of their decision making (J-3, 22-23; J-5, 13-14; J-6, 46-47; J-8, 25-26; J-9, 39-42; J-11, 27-28; J-12, 20-21; J-14, 24-26; J-22, 21-23; J-26, 16-17). One state intermediate judge describes this decision-making style in a way that helpfully distinguishes between formalism and good faith: I would say that to the extent the law [is clear] . . . , to that extent we should all be formalists. To the extent that the law [is unclear,] we have to pay a lot of attention to experience, . . . policy considerations, the kinds of . . . reasonable considerations that go under the exercise of . . . discretion or the selection among plausible choices (J-9, 39-42). More specifically, another federal circuit judge approvingly summarizes Dworkin’s good-faith theory in relation to formalism and realism: “Dworkin, of course, is taken [as] a little bit of a hybrid and said “well, we’re [following] the law up to right here and then we’ve got this . . . wiggle room, and that’s . . . discretion . . . . Yeah, that’s a perfectly good explanation [of what judges do]” (J-22, 21-23). 1. Community Influences But how do judges come to this good-faith understanding of their role? Specifically, what aspects of their background before becoming a judge, and what aspects of their life as judges, predispose them to, or help them to reinforce, this 216 view? According to one state intermediate judge, this view is produced by the sum total of all the judge’s life experiences, which impel them to “work hard, be a ‘straight shooter,’ [and] be reasonable” (J-23, 1). More specifically, when asked about aspects of their backgrounds that were especially formative, many of the judges report experiences that helped them learn how to be reasonably impartial. The way they describe these experiences helps us to further distinguish between formalism and good-faith judging. For example, many of the responses acknowledge the impossibility of rigidly separating themselves from their own backgrounds and preferences as formalism would require. Yet, they continue to place great value on making a reasonable attempt. Consider, for example, the way the following federal circuit judge describes his relationship to his background: “[M]y background, my philosophy . . . , my training . . . , I think may have influenced my instincts. But I hope that I’m capable of overcoming my instincts and not being governed by [them]” (J-22, 9-10). In relating their experiences in learning how to do this, many of the judges focus on their childhood, family, and other early experiences. In answer to my question about any prior experiences that had helped form his character as a judge, one federal circuit judge recalled his parents’ training him to act virtuously: “My parents were very moral, upright people, very given to being honest and doing the right things for the right reasons. And not only doing the right things, but doing [them] for . . . the right motivation” (J-22, 1). 217 More specifically, one state intermediate judge reminisces about his family’s experiences dealing with people of different races in his home town. Indeed, his father was so intent on treating all members of the community fairly, that he and his family were eventually run out of town. From this experience, the judge draws this lesson: “I hope my parents raised me to have . . . personal integrity . . . and I certainly had that hammered home. When I was growing up, there was always an emphasis on fairness. Very, very important thing for my family” (J-7, 6-7). Other judges also remembered lessons they learned from their fathers about fairness and integrity. One federal circuit judge drew the following life-lesson about impartiality from his father: “[Y]ou have to work at it. . . . [A] lot of people kid themselves about their biases, and I think you have to say, ‘No, no, no, come on now, be honest . . . . You react this way’” (J-20, 12). Another judge on the same court had a father who was also a scholar. He explicitly compared his father’s “dogged” commitment to scholarly objectivity with his own judicial task: Now that was a scholar’s commitment to what he believed was right and I’d like to think that when I’m pursuing my opinion writing . . . . I’m trying to do it in my dad’s sense: . . . having researched it, come to the correct conclusion and do[ing] it thoughtfully (J-14-7-8). Later non-professional experiences are also seen as formative for impartiality. One federal circuit judge, for example, points to his experience working as a management trainee for the phone company (J-14, 6-7). Another focuses on the role of his undergraduate education in training him to be reasonably impartial: “[Y]ou had these professors who hammered . . . home to you that the 218 responsibility of the courts are to be impartial” (J-7, 3). One federal judge focuses on another kind of early experience that seems to reinforce Chief Justice Roberts’s view of impartial judging: “Well it sounds almost whimsical, but one of the most important experiences was being a little league coach and doing some umpiring of baseball and calling balls and strikes” (J-15, 1). By far the most common types of experiences cited by the judges as formative for their ability to assume the role of a neutral are those revolving around law school and the practice of law. When I query one state intermediate judge about experiences shaping his view of impartiality, he responds: “Part of it comes from law school — . . . there’s this indoctrination that begins with your first-year legal research and writing class that stare decisis is central and essential for the functioning of the court system” (J-3, 11). One state Supreme Court justice agrees about the indoctrination effect of law school: [I]t’s a sort of socialization of law students . . . where they start to say, “Look. Here’s a judge. This is the judge’s role. And the judge’s role is not to . . . decide whether this is a good law or a bad law, but to decide whether this statute is constitutional or not . . . .” [W]e quickly learn, starting day one, . . . what are the appropriate things for a judge to take into consideration. . . . I think if you buy into that, I think that there’s a . . . heavy-duty socialization that starts day one of law school (J-13, 9-11). At least one judge remembers the brief interregnum between law school and legal practice – his clerkship experience – as particularly influential (J-18, 2). Most judges, however, jump straight to the practice of law as their next significant formative experience. Perhaps surprisingly, many judges rely on these experiences 219 not as training for no-holds-barred advocacy, but rather as early preparation for the neutral judicial role they would eventually assume. Even those judges who had primarily been sole practitioners or small-firm attorneys reported certain dynamics in such legal practice that helped them become objectively evaluators of facts and law. For example, a Chief Judge of a state intermediate court, recalled what he learned from his early days of being a small- town lawyer: …I quickly realized it didn’t pay for me to take clients who were unrealistic and who I thought didn’t have the right view of justice, who just wanted blood on the table rather than the legally correct answer. . . . That didn’t mean I wouldn’t represent people that had problem cases, but what I tried to do is help them find a way to settle the case to get the most realistic outcome they possibly could without having spent a ton of money to get there. . . . (J- 9, 7-10). Many of the judges had worked for the federal or state Department of Justice, and they overwhelmingly reported a similar kind of practical pressure toward objective evaluation of their cases. As one federal judge recalled: As an appellate attorney for the Department of Justice, [w]e were defending a judgment or attacking a judgment. But I had to sort of come to the department’s position fresh. And I’d say, “Did we get it right? Is there anything we missed? Am I convinced that this record will report this?” Now the Department of Justice took a great deal of pride in recognizing . . . the interest of the United States had been served when justice was done. And so we felt like . . . we were in a position of some luxury to be able to go to the client and say, “No. We are not going to defend your actions here, because quite frankly, they’re indefensible. We don’t believe it as a matter of fact, and on the law, we’re not willing to push it.” . . . It didn’t mean that we weren’t advocates. . . . But it did mean that we could take a little bit of a step back. That was a very formative experience . . . . (J-22, 3-4). 220 To a person, these judges reported a kind of social pressure in the DOJ to defend “the correct answer” – playing a kind of “traffic cop” role – rather than pressing for whatever answer best served the government’s advocacy interest (e.g., J-10, 6; J-20, 4-7; J-25, 14-18). Perhaps even more ironically, many of the judges who had been Deputy District Attorneys or some other kind of prosecutor reported the same phenomenon. One state judge said that she felt like a “white knight” working in a DA’s office because the “mentality was not ‘win at all costs’” (J-23, 1). For example, she remembers a case involving members of a gang, who appeared to have been “framed” by the police, where the office decided not to prosecute and dropped the charges (ibid.). Another state judge who had worked as a Chief Deputy DA had been responsible for making key decisions about what cases to take to trial. He recalled the enormous social pressure to “get it right”: . . . [E]xercising power in that form, particularly over people’s lives, requires you to do the best of your ability. . . . [I]t’s essential that you believe the defendant is guilty, but that’s not the basis on which we act. Because the question is, “Do we have adequate admissible, reliable evidence?” . . . If we don’t, then we’re not going to participate . . . . [T]he decision to charge someone with a crime is an enormous decision and we’re not going to do it if we didn’t believe that we could prove . . . it. . . . So that has sort of stayed with me, I guess, through the process and I sometimes may be a little harder on prosecutors than some of the colleagues because I still have that view. . . . [T]hat’s how our system is supposed to function . . . . (J-19, 1-2). One Federal Circuit judge with prosecutorial experience agreed that this community pressure for the “right answer” trained her to approach criminal cases more objectively as a judge: 221 . . . I was a prosecutor for almost ten years. Many criminal defense lawyers, particularly young ones, think, “Oh my gosh, he was a prosecutor for almost ten years [so] there’s no hope.” But one thing that I learned as a prosecutor is how to weigh a case before a trial, or before I stood up and asked the jury to convict. And I have the ability, I think, to quickly assess whether this is a legitimate case, or [whether] there’s something wrong with this case, because I had to make those decisions (J-20, 3-4). Overall, one judge reports, the community pressure in government practice is so strong that neutrality becomes almost second nature: “Thinking about both sides of an issue came really naturally to me” (J-25, 26-27). The final pre-judicial experience discussed by judges that appears to bolster the values of objectivity and neutrality is experience in academia. Six of the judges I interviewed recalled some experience teaching law students or undergraduates as full-time or adjunct professors. To a person, these judges reported significant professional pressure toward objectivity. According to one state Supreme Court justice who had been a career political science and law professor – and had never practiced law – her academic experience prepared her well for the neutral judicial role: “I could sit down and evaluate arguments, look at them very neutrally without my heart beating in favor of . . . the plaintiff or the defendant” (J-4, 3). This was because “you’re just so trained to make good arguments” (ibid.; see also J-10, 1-2, 6; J-26, 8-9). According to a federal judge who had also been an adjunct law professor, there is a similar community pressure that comes from the students: “[T]hey make me think, ‘Hmm, I think I better go back and . . . think about that,’ and so I think that 222 has helped me [as a judge] in saying, ‘Well, wait a minute now. Let me take another look at this from a different perspective. Why is that the law?’” (J-20, 3). Another federal judge who had been a full-time law professor also recalled his interactions with students as formative of his judicial values: I sometimes would make them, in interesting cases I would say, “All right, I want you to tell me what the world . . . looks like from the government’s perspective. Now let’s see what the world looks like reflected from the client’s perspective.” . . . And once you could explain that, then I think you understood the argument a whole lot better. . . . I think it probably helps to explain it to a judge. (J-22, 4-5). But, beyond the values of impartiality and objectivity, what other specific things did judges learn from their prior experience? There are at least four significant answers given by the judges. First, many of the judges derive from their practical legal experience a certain habit of reasoning – being guided by authoritative principles and standards. According to one state intermediate judge, the most influential aspect of practicing law “was the attention to rules: searching for the legal principles that guide our decision making. That was the thing that I was interested in, and it seemed suited to talents that I saw developing as a lawyer over the course of my career” (J-3, 5). Another state judge on a different court recalled his experience as a trial judge as a great influence on his use of legal principles: “[T]hat’s a challenge, trying to articulate you reasons and come up with your basic principles for deciding cases” (J-5, 2-3). 223 Second, the judges report that their prior community experiences trained them to provide high-quality, in-depth written explanations of their decisions. One state judge who grew up in a family of teachers recalled that the style of informative explanation typically provided by teachers helped her do the same thing as a judge: “[L]aw . . . is the same sort of learning/teaching [relationship]. It strikes me that it’s this ebb and flow process . . . . You spend an awful lot of time learning about the case and then you turn around to . . . teach about the case” (J-25, 1-2). Other judges agree, stressing the mental “habit” of “careful writing” that is essential to the judicial role (J-23, 2). Third, from their prior community experiences, judges derive a sense of the limited role that judges play in the overall political process. When I ask one state judge why he considered his appellate practice experience to be so formative, he responds by noting that [A]ppellate courts are courts of limited powers. All courts have limited power. The Constitution limits power. But appellate courts have particularly limited powers. . . . It takes you a long time to be comfortable with that limited role, and if you spent ten years, four months, 29 days like I did as a lawyer . . . (but who’s counting?) involved in that process then it’s easier for you to understand” (J-7, 1). Part of this limited role, judges learn, involves a healthy respect for the normal political process. One state Supreme Court justice describes several community experiences ranging from family upbringing to legal practice as a sort of “socialization,” which led him to “not [be] automatically suspicious” of the normal 224 governmental process. After all, “these people were elected . . . by the people and so I think I have a healthy . . . respect for what comes out of it – the legislative process” (J-7, 1-2). A federal circuit judge agreed, recalling his experiences relating to the legislature when he worked in the Governor’s office: “It gave me an understanding of the legislative process . . . . I think [it] opened my eyes when I became a judge later. . . . I think I can understand a little better the issues that come up involving . . . involving legislation . . . .” (J-20, 2). In addition to respect for the people’s representatives, another aspect of community training for the limited judicial role is a healthy sense of respect for the people themselves. One state intermediate judge draws upon his small-firm practice experience as an influence on his perceptions of the non-legal community during the opinion process: And so writing opinions so that our consumers understand . . . matters as much to me as almost anything else, and it comes from that background of [knowing] people who were smart, [and] didn’t want to be talked down to, but didn’t have all the privileges that other people had had along the way. . . . And so it’s that sense of wanting to relate to ordinary people that drives a lot of my thinking . . . . (J-9, 5-6). Another judge on the federal bench also recalled her experiences dealing with ordinary people as a law professor and legal reform advocate (J-17, 4-7). At bottom, says one federal circuit judge, he learned from all his experiences to “realize that . . . these are real people’s lives that they’re playing with and, particularly at the level of the Supreme Court, you really do have an impact and clearly affect [people]” (J-14, 225 26). This results, says another federal judge in the ability to “explain . . . very publicly, not just to lawyers, but . . . to the public as well, [what] the law is and why” (J-22, 5). The fourth significant skill that the judges drew from their community experiences was how to think about the law in an intellectually rigorous way. One state intermediate judge refers to this, in part, as having “an organized personality – the ability to sit down and get to the bottom line” (J-23, 2). A federal judge referred to the community-reinforced skill of “demanding exactness” or “precision” in one’s thoughts, and in the thoughts of others (J-22, 1-3). But, more specifically, how does a judge acquire these intellectual skills? One state intermediate judge with a lot of appellate practice experience recalled learning how to write a rigorously-argued appellate brief by copying the logic and structure of the opinions of the state appellate courts (J-25, 12-14). Another judge recalled his experiences as a federal public defender and private civil lawyer conducting “legal research, . . . looking at books, [and] drafting documents and contracts,” which taught him the importance of “careful” thinking and writing (J-18, 1). Overall, these community experiences provide a kind of model for future judges to follow as they move into their new judicial role. Many judges are quite explicit about how they viewed judges during their days before being on the bench. Most remember specific trial or appellate judges who were of a “pretty high caliber” (J-6, 3-4). More specifically, the judges found a lot of good-faith values to emulate. 226 According to one state intermediate judge, “you have those Judges over the years that you admire out of sort of personal and professional and, and the Judges that as a lawyer you look forward to taking your case to” (J-25, 18-19). These values to emulate include a sense of fairness – a feeling “that things are [not] stacked against you” (J-6, 5-6; see also J-8, 3-4). The values to emulate also include a careful, deliberative style. One state judge describes his ideal judge as one who, first of all, . . . took the time to understand what the issues really were and [would] give you reasoned, thoughtful answer to the issues that the judge had to decide. It was . . . important having the sense that the issues had been understood and somebody had made some informed determination. You could live with it even if you were on the wrong side (J-5, 1-2). Similarly, others expressed “respect for judges who were prepared to engage in a discussion of the issues from the bench” (J-7, 1-2), “g[a]ve the effort necessary to understand the . . . issues” (J-8, 3-4), and “fairly characterized the arguments,” without ignore[ing] a very important part or mischaracterize[ing] your argument” (J- 25, 19-20). In sum, through all their community experiences before coming to the bench, many judges learn to respect other “judges that honor the process” and thus provide models of good-faith decision making. Once judges are appointed or elected to the bench, there are even more significant community experiences that teach them how to think and act in a good- faith way. In general, many of the judges report at least a minimal kind of 227 socialization effect brought about by the other judges and court personnel. Most explicitly, one state Supreme Court justice recalled an early conversation with the Chief Justice, soon after he was elevated to the court: “[T]he chief justice sits down with me and says, ‘This is the way we do it here. . . .’” (J-13, 11-12). Other judges report a more informal kind of socialization process, brought about by conversations with other judges: . . . [M]y first entry as a judge, it was just total immersion – I was just thrown into it without any preliminary orientation . . . . But . . . I had good senior judges in the courthouse who were willing to share with me their book of instructions, and little shortcuts and things -- they knew how to move things along . . . . So I just learned by doing, and having good mentors (J-15, 1; see also J-6, 19-21). One judge sums up the socialization experience by referring to the impact of the courthouse “legal culture” on new judges (J-10, 14-15). Flowing out of these initial socialization experiences is a more specific sense of collegiality among judges on the same court, which reinforces good-faith values and practices. This collegiality continues the socialization effect both in and out of the courthouse. Inside the courthouse – whether a state court of appeals, a state Supreme Court, or a federal circuit court – one cannot help but be overwhelmed by the amount of good-natured conversation between judges related to the cases being decided. The judges clearly enjoy and benefit from this. As one state intermediate judge exclaims, “One of the things that I really love about this job is [that] this court is really institutionally committed to . . . talking about the cases. . . . It’s really wonderful to actually get to talk to people about these cases and wrestle with them” 228 (J-3, 13-14; see also J-12, 12; J-19, 7-8). Moreover, the same judge notes, the conversations are always good-natured in the sense that they are never affected by personal rancor or recrimination: “There was never anything personal about the discussion . . . [a]nd there’s a fair amount of good humor . . . and encouraging people to take whatever position they want, and on the next case and the case after that” (ibid., 18-19; see also J-5, 6-7; J-8, 7, 19-20). One judge aptly summarized the feelings of many other judges about the level of collegiality: I think it takes all [different] approaches to make a successful appellate court, but more than anything else it just takes respect. . . . To really be successful in the collegial court you got to . . . respect honest differences in opinion . . . and the way that other peoples’ minds work . . . . (J-9, 26-27). More specifically, what are the conversations about? Almost always, they revolve around a concern for understanding the law, the facts, and the substantive content of the decision being made. As one state Supreme Court justice recalls, “if I read a case that just strikes me as ‘whoa, I’m just completely flummoxed by this analysis,’ I’ll go down and talk to the author . . . and say, ‘what am I missing?’” (J-4, 12; see also J-8, 7-9; J-10, 6). For example, the same justice describes her interaction with another justice on one of her opinion drafts. The justice wrote on the draft: “I think this is a tough read, but so far I’m on board” (J-4, 12). “He was right” the justice admits, “it was a hard read” and so it made sense that “[a]ll he wanted to talk about at conferences [was], ‘do you think there are ways to make this not give me a headache?’” (ibid.). The same sense of concern for clear but good- 229 natured explanation appears to prevail in federal court. As one federal circuit judge recounts: We go around the room, and I say, “Well, I would reverse in this case because,” and the next judge says, “Well, I would affirm because,” and the third judge breaks the tie, and then we go out to lunch together . . . .” (J-20, 18-20). This general collegiality between judges extends outside of the court as well, which appears to further reinforce the “legal culture.” According to a state intermediate judge, “in this court, there's a group of anywhere from . . . two to maybe seven of us who'll go to lunch almost every day” (J-6, 21-23). Another judge from a different division describes the same thing: [W]e’ll have anywhere from three to 10 justices down [in the lunchroom] from this division . . . [and other divisions] just dropping in and everything’s off the record in there. And we’ll talk about politics, we’ll talk about other justices, we’ll talk about attorneys that come to courts, you name it and we’ll talk about legal issues (J-8, 7-9). The same thing frequently happens in federal court, according to one judge who claims to have originated the practice soon after she joined the court several years ago (J-17, 8-9). A more significant measure of good-faith socialization is provided by the numbers of judges who acknowledge having had their minds changed by the reasonable, persuasive arguments of other judges. One state intermediate judge eloquently describes the value of such substantive debate in both hard and easy cases: 230 [W]hat we’re looking at here is in most cases there is a right answer. Not just a single right answer in every case, but in most cases there’s a right answer, and if we talk about it enough, we can generally come to agreement on that. . . But there are some cases where there just is no single right answer, there are just plausible choices, and in those cases . . . the quicker we identify those the quicker we can move towards getting it close by having the right kind of . . . majority. So we’ve got to be able to recognize those differences (J-9, 28-29). More specifically, many judges report having had their minds changed in hard cases by comments made in conference: “[W]e try to do serious, thorough, intellectual work before we put an opinion in, but people have changed their minds, absolutely. . . . [b]ased on critiques from . . . conference, absolutely . . . .” (J-4, 11- 12). This state Supreme Court justice remembers: “We have had . . . debates go on for hours. . . . [until someone says,] ‘I need to rewrite this to address this concern you’ve raised’” (ibid.). Many more judges report minds changing during the drafting process. A state intermediate judge neatly summarized the kinds of discussions that happen on his court at this stage: [T]here are levels of discussion. The first level is usually: “I don’t understand how you did that. Help me understand that. Persuade me that you’re right.” . . . [M]ost of the time . . . I go into it with the notion that I just need to talk to the authoring judge and he or she will explain it to me. And that may result in some re-wording of the opinion to address my confusion; to make sure that other readers coming at the opinion won’t similarly be confused. . . . Sometimes in the course of that discussion, I will discover that I simply look at this thing differently. . . . But, most of the time, the judges on this court are making carefully considered decisions, and if they’ve reached a conclusion it’s after some thought and they’ve already anticipated or dealt with my concerns and they’ve just decided to come at it a different way. Then the idea is to persuade the people who have not yet made up their minds. And there is a fair amount of that (J-3, 15-16). 231 Another state judge on a different court described how these persuasive discussions center on the authoritative legal rules and the proper legal analysis that should govern the case: Well it can be anything from someone point[ing] out a case I missed or a statute [I] cited . . . Usually it has to do with . . . someone point[ing] out a logical flaw [in an] argument I made, or show[ing] me an argument that is in some sense more persuasive (J-10, 7-8). These experiences of judges having their minds changed through substantive conversations about opinion drafts are quite prevalent in the data, regardless of the court: [I]n most of the situations where that’s arisen, we’ve basically talked it through and . . . modified something — I mean, in one case, I circulated something . . . and two colleagues convinced me to withdraw it. I changed my mind. They convinced me they were right, so I changed (J-5, 6-7). So we communicate [in] writing . . . even to the dissenters. So my draft dissent goes to everybody on the en banc panel and my draft majority opinion goes to everybody on the en banc panel and they’re all circulated and recirculated . . . . And I’ve been revising [an] opinion . . . and taking a second look at it because of a dissent or a qualifying concurrence. . . . [B]ack and forth. . . . one way or the other . . . whether I think the case law actually supports it or whether whatever fact[s] support it (J-14, 16-17). [T]he other . . . judges . . . will say, “That’s really interesting what you’d like to do, but we can’t do that, and if you do that, we’re gonna dissent . . . ” So . . . I’m going to think very carefully before I go off on my own (J-20, 24-25). I’ve seen people, not so much change their mind as sort of acquiesce. And that’s . . . one of the reasons you have a multi-person court. . . . [W]e have members who will say, “Gosh, if I can’t convince anybody else that I’m right, I’m probably not right” (J-13, 19-20). 232 Consistent with the good-faith account of judicial decision making, the subject of many of these persuasive discussions is the interpretation of whatever legal principles are relevant to the decision. According to the judges, their conversations about hard cases are about “right interpretation of law,” rather than policy concerns (J-18, 2). One state intermediate judge insists on this point – that the conversation is never about policy: “Well what’s never part of the conversation is ‘This is unfair’ or ‘This is bad policy’” (J-10, 6-7). A state Supreme Court justice describes the typical conversation about legal principle as follows: “‘I know that the case law has gone in this direction’ or . . . ‘the legislature has changed the statute.’ We’ll just do that all the time” (J-4, 11). For example, in arguing over the proper methodology to interpret constitutional provisions versus initiatives, one state intermediate judge recounts: “I’m consistently asking: ‘Why? What is the principled reason why we look at this one and approach it differently than we look at this one?’” (J-4, 8-9). Another state judge on the same court recounts a similar discussion about principled disagreement over interpreting text: One of our arguments . . . was about how ambiguous does the text have to be before you [examine legislative intent]? If the ambiguity is [great] and the legislative history is not absolutely definitive but it certainly leads very strongly in one direction then how do you put those differences behind you? So I would say that the conversation . . . on . . . the floor from the outside world – you would think that they’re extremely technical . . . . (J-10, 6-7). Other judges recount discussions that are more centered on the interpretation of controlling precedent: 233 [W]e . . . start . . . by saying, “Well, the marrow’s of the case is drugs,” and the other will say, “Oh no, [this case] has an exception.” “Oh [it] does?” “Yes [it] does.” That’s what we do. We have to try at least point out that there is precedent. . . . A judge that’s on the case . . . he might say, “Well, this is awfully close to [another case]. . . . Now I have found a case that says [the opposite] -- its exactly those facts. . . . So my colleague would then try to find a case that another circuit judge said, “Well, that’s not true . . . .” [A]nd so . . . the two of us would have to choose which circuit we’d follow (J-20, 18-20). Another state judge on a different court describes the principled discussion regarding the logical implications of various interpretations: [W]e will just sit there and come up with hypotheticals and change the hypotheticals. ‘See, okay now let’s throw this fact in and we’ll work things through’ and . . . that’s a hell of a way to open one’s mind up . . . . [W]e’ll meet at lunch after argument everyday and we’ll just sit there and shoot the crap. And well, here’s a case that troubles and I come up with a hypo and we do the same thing . . . . [T]hat’s a hell of a way to . . . work through a case and open someone else’s eyes to something that they may or may not have seen (J-8, 22-23). Regardless of the substance of the conversation, many of the judges report that their law clerks and staff attorneys play a crucial role in this process of principled discussion and disagreement. Sometimes, clerks are just used as preliminary sounding-board for the judge’s ideas (J-12, 13). Mostly, though, clerks are relied upon to inform the judges about the state of the relevant law, debate the merits and demerits of various interpretations, and draft opinions in favor of – or even opposed to – the decision the judge wants to make (J-5, 10; J-8, 7-9; J-12, 14- 15; J-14, 5-6; J-17, 9; J-26, 9). In any case, the clerks and staff attorneys form another vital part of the community that serve to uphold and reinforce the values of good-faith decision making. 234 So, what effect do all of these various aspects of the judicial community have on the attitudes of the judges? More specifically, is there any evidence that all these elements come together – at least in the mind of the judge – in order to shape their thinking in a good-faith direction? The overwhelming answer provided by the interviews is “yes.” In particular, the socialization of judges into the practices and values of the court, and the discussions among judges and between judges and other court personnel appear to have a kind of educative effect that trains the judicial mind to make the most principled decision possible in spite of reasonable disagreement. One of the primary determinants of this educative effect is the variety of backgrounds and perspectives represented on the court. For example, one state Supreme Court justice discusses the practical and interpretive help provided by one justice to another on his court: [O]ne of the good things about this court is people bring different perspectives to it. Like [one justice] . . . did quite a lot of criminal cases and . . . spent a long time in the court of appeals. And he knows how the criminal justice system works. . . . And he is able to say, “Look. This is the way it really works.” And so this statute, which appears to be ambiguous, is actually written in a way that . . . it sort of implements what the cops and the defense lawyers worked out. You know, . . . so there’s sort of an insight aspect to it. Or I can say, . . . if it’s some sort of civil pleading issue or a deposition, “look, . . . when you take this deposition, you always tell the guy, ‘Yeah, maybe I’ll produce these documents, but send me a letter,’ and so . . . we’re not gonna sanction this person for not producing.” . . . And so people have different insights and . . . there is partly an educative function . . . that goes on (J-13, 17). 235 Other kinds of practical diversity that appear to have an educative function for the judges include experience as a trial judge, legal scholar or professor, as well as various ethnic, cultural, gender, class, and occupational backgrounds (J-14, 10-12; J- 26, 5; J-15, 4-5). “You just want a mix. You don’t want everybody to be the same” (J-26, 5). Having these different practical backgrounds, the judges report, greatly increases the diversity – and therefore the quality – of the court’s decision making: “[O]ne of the great advantages of the appellate court system is you the have input from three people who see it differently, who have three different experiences” (J-12, 5-6). As one federal circuit judge vividly recalls: “I sit with my mouth open sometimes in our conferences after arguing, because of the things that they . . . tell me that I wasn’t aware of” (J-20, 2-3; see also J-26, 10-11). An even more important aspect of this good-faith educative effect is the checking function served by the interactions between various members of the court. When I ask another justice on the same state Supreme Court whether she thought the “institutional dynamics” on the court were conducive to the value of judicial neutrality, she replies: “Yes . . . . Big-time. Big-time.” As she further elaborates, particularly when you’re on a collegial court, . . . [your] potential for self- deception is caught by your colleagues. So, we’ve all counseled each other in various instances when we’ve been in a really troubled case — “you’re too deep; you need to stand back; you need to look at this; we need to think about this differently.” I think that’s the real advantage of a collegial court. . . . There’s a built-in Madisonian model of the decision making process — there are checks and balances. . . . There’s just real advantage to talking . . . through one another’s work — editing, second-guessing, questioning. It is 236 painful; it is tiresome; it is frustrating; it’s very, very time-consuming; and to me that’s the core of what makes the institution healthy, and what makes our work good. (J-4, 3-4, 9-10). Many other judges agree about this “big-time” institutional checking function served by intra-court discussion (e.g., J-5, 9-10; J-8, 13-14; J-10, 13-14). In some instances, this seems to act as a kind of sounding-board for various ideas. “One of the comforts and values of an appellate court sitting in a panel of three is you do have somebody to bounce your ideas off of. [It] tests [to] make sure that your thinking is correct” (J-14, 10-12). Other times, it seems to be a kind of training to transcend one’s own limited perspectives through a habit of “[b]eing open and having respect for the integrity . . . of your colleagues” (J-17, 18-20). At bottom, though, the institutional check is provided – consistently with the Madisonian assumptions made by the justice quoted above – by the need to balance one’s own opinions with those of others in order to reach a collective, rather than an individual, decision. One state intermediate judge described the process of panel- formation in exactly this way: [E]ach of us comes with a process and an amount of baggage, philosophy, whatever it is . . . . And so we make an intentional effort to blur, to the greatest extent possible, our implied biases because it’s group decision- making. You have to have two votes and if you have three strong willed people that come at this with different perspectives, then ultimately, they have to reach consensus somewhere in order to resolve the issues (J-19, 6). In sum, as one state intermediate court agrees, “We’re supposed to back-stop each other” (J-23, 2). 237 The overall result of this educative function is a court committed to “get it right most of the time” (J-8, 4; J-14, 14-15; J-13, 22). The various experiences and backgrounds possessed by the judges on the same court or the same panel are important not merely for the sake of diversity, but only to the extent that they help the court to reach the right result: You all approach the fact-finding questions with some life experiences, which may vary considerably from different regions of the country and different rac[es] . . . and religious backgrounds and so on. But everyone realizes that your job is to evaluate the evidence according to the legal principles and the rules of evidence and not according to how you think this will affect this or that, some group in society. . . . So, you do bring with you your life experiences, but you don’t want to let those life experiences dictate the way you’re going to look at the legal application of the law and the facts (J-15, 5-6). This good-faith attitude of trying to “get it right” is evident not just in judicial attitudes about other judges within the immediate judicial community, but also in the attitudes of judges toward the wider judicial and political community. In other words, judges exhibit good-faith attitudes not just toward other judges on the same court but also toward judges on lower and higher courts as well as members of the legislative and executive branches. In general, the judges are very conscious of their particular place in the hierarchy of courts and in the larger political landscape. This is especially true for intermediate judges, who are usually preoccupied with their status as a “peanut butter court,” sandwiched between trial courts and the Supreme Court, with very little discretion (J-25, 32-33; J-18, 2). This peculiar in-between status is perceived by the 238 judges as having a significant constraining effect on their decisions (J-25, 32-33; J- 18, 2). On the one hand, the judges exhibit a significant degree of non-rigid but reasonable respect for and deference to the decisions made by trial judges. For one chief justice of a state intermediate court – who was once himself a trial judge – this means “encouraging” his judges to “trade benches” with trial judges so that they will have a better sense of the pressures and demands the latter face (J-9, 30-31). Other judges do this on their own initiative, in a good-faith attempt to understand the process, workload, and pressures that might influence decisions being reviewed by the appellate court (J-19, 4-5). Unlike the formalist judges surveyed earlier, these judges realize that not all trial court decisions are worthy of rigid or mechanical respect. Through experience, according to one state intermediate judge, “you learn there [are] certain judges that you can trust” and those you cannot trust (J-10, 8). While this distinction is “probably not in any of the rulebooks,” it can nevertheless be learned through patient experience and observation. The result is neither rigid, mechanical deference nor dismissive disregard for the work of trial courts, but rather a healthy sense of community respect. In the words of one state Supreme Court justice, “honestly, I don’t think anybody could be more sympathetic than I [am toward trial judges]. Because I [know] they’re on the front lines. They have to make these [hard] decisions” (J-26, 5). 239 Even more obvious good-faith attitudes can be detected in the views of these judges toward higher courts. Again, however, the attitude is rarely one of rigid, mechanical deference. Rather, it is aptly described by one state intermediate judge as a kind of “schizophrenic” attitude. This includes a great deal of careful deference to and anticipation of the higher court’s view of the case, but also a significant independent streak that simply strives to make the right decision regardless of what any higher court might do. In terms of deference and anticipation, some judges go out of their way to announce, in a public way, their obligation to follow precedent, even though it may lead to a strange result in any given case: If I can cite [state] Supreme Court authority [in a difficult opinion], I’ll cite authority and there are a couple of reasons. One is I’m obligated by [state] law to obey the . . . Supreme Court. I’m obligated by the federal laws to obey the decisions of the United States Supreme Court. . . . I want it clear to . . . those courts that I’ve applied their rules to the decision. . . . The second thing is . . . I want them to know that if they do not believe that this is how their rule is to be applied, they must change it and grant review (J-7, 13-14; see also J-8, 17-18). The emphasis here is on the judge’s public sense of obligation to respect the decisions of higher courts – even in the manner of how the higher court’s decisions are discussed within the context of an opinion: “[M]y main goal is not to let any disagreements . . . look . . . personal. . . . as opposed to a conversation about the law. And so . . . how we talk to each other really matters. There needs to be mutual respect . . . .” (J-9, 30). 240 But this attitude of respectful deference and anticipation is frequently subjugated, according to the judges, to the desire to get the decision right. According to one state intermediate judge: You can’t be in this job without, in the back of your mind at least, knowing there’s always that possibility [of reversal]. And, particularly given the fact that you’re supposed to follow the precedent — I mean, all of us are committed to that — there’s always an awareness of the possibility that the Supreme Court will read the precedent differently than you, or change the precedent. At the same time, it is equally true that worrying about whether you get reversed has next to nothing to do with how the cases get decided. At least for me. . . . I don’t try to crystal-ball the court. I don’t trust my prognosticative abilities that well. And I think that’s kind of a scary basis to write opinions on. I’d rather just take the precedent and apply it and if I got it wrong they’ll tell me about it. And I’m pretty comfortable with that (J-3, 19). Many other state and federal judges agree, stressing their professional obligation to get the decision “right” on the facts and the prevailing law: “I'm trying to do what I think is right. I'm not a Supreme Court. . . . [If] I feel very strongly that this is right . . . I'm going to write it that way. And so, you know, [some judges] gloat[] when [their] position is upheld by the Supreme Court. But I really – it's not that I don't care. I mean, you care a little. I care a little. I don't care very much. Because I don't think that's the point” (J-6, 9- 10). “it’s not my job to decide a case on how I think the Supreme Court would handle it, it’s my job to decide the case based on the law and the facts are before me” (J-8, 16-17). “I write for my own . . . sense of integrity and I do not look . . . over my shoulder at the court. . . . you have to write . . . what you think is right and not worry about [the consequences]” (J-14, 18-20). “I don’t think it’s your job to try to figure out what they’re going to do. I think you figure out what you think law is and if you think they’re gonna disagree with you, well, they are free to do it” (J-16, 13-14). 241 Finally, the judges exhibit good-faith attitudes of reasonable, but not mechanical deference to and respect for the larger political system that is based on the expectations and demands of the public at large. At the most basic level, the state court judges are clearly receptive to the attitudes of the voters expressed in judicial elections. As one state intermediate judge remarked: “The public expects us to be impartial and if they don’t think you’re impartial, they will remove you from office . . . .” (J-7, 12-13). This sometimes creates a feeling of fear or anxiety when one has to decide a controversial case around election-time (see, e.g., J-8, 14-15). But the key point stressed by the judges is that the fear and anxiety is over the negative consequences that might be imposed by voters, not that the judge might make a decision contrary to the law in order to avoid these consequences (see J-8, 14-15). Beyond these more direct concerns about running afoul of the voters’ expectations, many of the judges seem attentive to the more general social norms and expectations about how judges should operate. One state intermediate judge recalled being asked by another judge very early on in his career, “is it better to make the right decision or is it better to be perceived to have made the right decision?” (J-8, 4- 5). After reflecting on the difficult nature of that question, the judge answered it by insisting that “[o]bviously you want to make the right decision at all times” (ibid.). However, she also acknowledged that public perceptions about the nature of the judicial process need to be respected. She then went on to list the factors that 242 contribute to meeting the public’s expectations about how judges should act, including – first and foremost – the obligation to explain the court’s interpretation of the law in a public manner: [E]verything you do has to be in writing. We have to explain what we’re doing . . . because that way we can’t hide; we have to set forth for the public, what the law is, what the facts are, and what the issues are. . . . [I]t means that we try and explain ourselves as clearly and as cordially as possible” (J-8, 4- 5). This attitude of feeling constrained by the need to publicly explain one’s decisions is echoed by another judge in a way that stresses the humility inherent in this type of response: “[We need to be] writing . . . in a way that’s understandable, with an effort to create a sense of public accountability – that what we’re here to do is not to act like we’re smarter than the people we serve” (J-9, 4-5). Thus, according to a state Supreme Court justice, “the expectations of the public . . . guide your behavior” (J- 26, 14). 2. Language Practices These community influences – from childhood through the normal educational system, through law school and legal practice, and, most significantly, the influences of intra-court and extra-court relationships – are furthered and reinforced by various good-faith attitudes toward legal language. In short, while the judges largely acknowledge that legal language in hard cases is often ambiguous, contradictory or indeterminate, they are still motivated by feelings of obligation and fidelity toward their best understanding of the underlying legal principles. 243 The first thing one notices when examining judicial attitudes, tasks, and role- conceptions over time is their fixation with written text – especially the texts of their own opinions interpreting the relevant legal authorities. Notice the number of times one state intermediate judge alludes to reading or writing when describing a typical day: “[T]hat will entail reading the briefs, reading my law clerk’s memoranda and draft opinion, checking out key cases, and then actually sitting down and writing” (J- 3, 14). Obviously, the opinion writing process is especially language-laden. But what stands out about this process is the central constraining role played by the attempt to engage in a principled interpretation of the relevant legal language. No matter how a judge may want to interpret the relevant law, some opinions just “won’t write”: [O]ur justification for what we do is a written justification. The minute you’re there, you’re talking logic, basic assumptions, etcetera. So, even if you [have] certain instincts or intuitions . . . You can’t put them in an opinion. “My gut tells me that what you really need for Inverse Condemnation is —” . . . it doesn’t write. So then you’ve got to change . . . . So, yeah, I think we all come at it with a rather intuitive, instinctive sense of what we want. But if we can’t rationalize it, we don’t stay with it (J-4, 19- 20). One state intermediate judge with a significant amount of trial court experience describes the higher level of constraint felt by an appellate judge because of the need to explain one’s decisions in writing: “I think the mandate that we put our reasons in writing . . . certainly makes it much more difficult to fudge, which you can get away with from time to time in a trial court” (J-5, 4-5). Part of the reason for this, 244 according to another state intermediate judge, is that appellate judges are acutely “conscious of the fact that . . . published [decisions] . . . affect[] a lot more people than the parties in the case” (J-6, 7-9). Not only does the writing process make appellate judges feel accountable to the public, but it also makes them feel accountable to themselves and other judges: “Writing it out . . . typing it out, allows you to look at it and to follow your reasoning . . . . It holds me accountable to myself. Also, I can look at what my colleagues say, and I think they’re held accountable” (J- 7, 7-9). The opinion writing process is thus bound up with judicial attitudes toward the social, political, and legal communities discussed in the prior section. This is because the language they use in published opinions flows out of their unique professional obligation to provide public reasons to explain their decisions. The result is a particular good-faith view of the writing process in hard cases as an attempt to “take principles and “moosh” them together in a way that’s honorable and accurate” (J-7, 9-10). The “mooshing” terminology notwithstanding, this process could be described in a fairly formalistic manner. However, what separates these descriptions from the ones offered by formalist judges is their non-mechanical nature. In other words, the good-faith nature of these language practices is distinguished by the degree to which the judges acknowledge the difficulty of objectively ascertaining legal meaning. For example, one judge describes the task of precedential and 245 statutory interpretation as the search for the most plausible interpretation rather than an objectively accurate one: [E]ven applying [a landmark state precedent] is more art than science . . . . What a plausible interpretation of a statue is often depends on point of view . . . and perspective about what a plausible meaning for something is depends on how you view words. And we view words to some extent . . . contextually and based on our own experience. . . . So we shouldn’t even pretend . . . that interpretation of law or statues . . . is that scientific, but there’s more of a template (J-9, 20-22). As a state Supreme Court justice aptly summarized the interpretation of legal language in general, “[y]ou know, there’s always some squishiness there. It’s not a mathematical science” (J-11, 17-18). Perhaps surprisingly, this search for “plausible” interpretations of “squishy” language seems to be common even in statutory cases. Even if statutory language may seem clear on the surface, further investigation often muddies the waters. For example, one state intermediate judge told a story about a recent family law decision where this happened: What happened is, it’s a family law case and the statute is a question of whether or not this court . . . continues to have exclusive jurisdiction over . . . the child custody and support matter when the wife and the two children moved to [another state]. And the statute if you read it, black letter . . . well, I interpreted it a specific way and I said “you know, that’s what the trial court did, . . . [and] she was obviously right.” . . . I gave my notes to my [clerk] and she was going to write it up and she came to me and sa[id] “it might have appeared to be that . . . way at first, but here’s a Supreme Court case from 20 years ago that construed similar language in the predecessor statute to go this way.” And I got down and I read that case and . . . she brought to me the background of the drafting of that act. And what the drafters intended and it made it clear to me that the drafters intended the court to have done just the 246 opposite of what it did and that the clear language of the statute . . . wasn’t really as clear as it appeared (J-8, 9-10). Ironically, part of the reason statutory cases can be so difficult, many judges say, is the established methodological devices courts use to ascertain textual meaning (see J-11, 17-18; J-12, 9; J-17, 20-21; J-23, 2). However, most of the data regarding attitudes toward unclear, ambiguous, or indeterminate legal language relates to the interpretation of precedents. Sometimes, the problem is that there are two or more lines of precedent that might apply to a given legal or factual issue (e.g., J-8, 19). More often, however, it is clear what precedent or line of precedent applies, but unclear how to understand or apply it. For example, one state court of appeals judge referred to a landmark First Amendment case recently decided by his court, which involved the interpretation of a key precedent. As he recalls, there were reasonably different ways of interpreting that precedent so that, even given “the importance of following binding precedent,” different judges came to different conclusions (J-9, 12-14). One federal judge recalled a case where judges on his panel disagreed about whether police had legally stopped a suspected drunk driver. While “[m]uch of the search and seizure law is . . . quite developed, . . . there are novel situations” where judges may reasonably disagree about its application (J-20, 12-14). In this case, some judges “were troubled . . . by the use of the siren, and the horn, and the lights” and pointed to precedential language indicating that this constituted a “detention” of the suspect, requiring deference to the suspect’s right to privacy and Miranda protections. Others pointed 247 to other language in the same precedent indicating that a short detention was not enough for these rights to kick in. The judge I interviewed agreed that this was a typical “reasonable disagreement . . . between judges about the meaning of the law” (J-20, 20; see also J-7, 24-25). Even some state Supreme Court justices acknowledge that their own precedents are often unclear or confusing, which requires lower court judges to try to “read the tea leaves” by finding the most plausible interpretation of the existing language (e.g., J-11, 13-14). But this lack of clarity in statutes or precedents need not entail a subjective reliance on political or ideological preference. With regard to statutes, many of the judges exhibit attitudes of fidelity to their best interpretation of the language of statutes even if they are unclear or ambiguous. For example, one state intermediate judge discusses the way in which unclear statutory language can still provide the judge with a set of plausible choices. [N]ow are they scientific? No. But they at least give you a reasonable range. . . . I’m sure one could just blindly approach it from an ideological point of view, but usually, you end up having . . . standards that you follow for interpretation. You’ve got the language itself, the legislative history, or this thing has been placed within the scheme of statutes. And . . . I would have a hard time saying, “Look, because I’m “conservative” or I’m a liberal or whatever, therefore, I’m going to read up to mean down” (J-19, 14-21). The same is true for precedents. According to one state intermediate judge, there is a kind of step-by-step process, beginning with clear language and moving on to less clear: “[M]y first place as an appellate judge is to search to see if I [can] 248 figure out if this has been resolved. If it hasn’t been resolved, did the Supreme Court give us any standards from which to work?” (J-19, 23-24). Whatever the process individual judges use to interpret precedents, the judges do not experience the lack of clarity in precedents as an invitation to invoke personal or political preferences. In the words of one state intermediate judge, “[n]ot everything the Supreme Court says is crystal clear, but that doesn’t mean the decision will be ideological” (J-18, 2). More specifically, another state judge recalled his personal conviction about the sincere good faith of his own interpretation in a major free speech case: “I felt that I could not distinguish [a particular case] adequately in an intellectually . . . honest way to satisfy myself . . . . [T]here was a clear line for me, and I think the Supreme Court had recognized it in its case law” (J- 9, 12-14). When I follow up with the same judge about whether precedential language is “actually helpful in . . . eliminating . . . biases,” he replies that “it doesn’t perfectly eliminate them . . . but it does channel them, . . . moderates them . . . [and] [m]itigates them” (J-9, 20-22). Other judges pick up on this theme of feeling “channeled” by the boundaries set by the authoritative precedents, even if they do not clearly compel one result or another. “So you're guided as to what you're supposed to do. And I try my best to just do what they say you're supposed to do under those circumstances” (J-6, 35-37). “You’re dealing with what’s presented to you. You typically have a boundary of . . . case law you have to function within” (J-19, 22-23). 249 Thus, in summary, the obligation to be faithful to one’s best good-faith interpretation of uncertain or ambiguous precedential language is often so powerful that it tends to crowd out the judges’ own preferred interpretation, even when they disagree with a precedent: [I]f I was writing a clean slate, I would take a different approach. You know, I may . . . say that I think this line of cases . . . just interprets these words wrong, or I might say that I agree with the dissent . . . . [But] I’m not gonna try and convince the other judges to . . . overrule some fairly recent cases or . . . to overrule . . . Supreme Court Cases. I mean, “Excuse me? . . . This is what the rule is” (J-12, 17-18; see also J-7, 15-16). So, what is it that the judges experience as constraining about the language of various statutes and precedents, even when those authorities are unclear or ambiguous? The overwhelming answer is: the more general principles, standards, and guidelines underlying the language itself. For example, one state Supreme Court justice describes the discussion on his court as being particularly focused on underlying principles and values rather than external language: [S]ometimes we really have very good, meaty discussions about, . . . “what is Article One, Section Nine supposed to mean anyhow?” “What does it mean to say that . . . we have . . . privacy?” I’m not coming up with good examples. But we really talk [about] “what are these provisions supposed to mean?” . . . Sometimes, the discussion is “What is the limiting principle?” . . . . And so it is one thing to say, “yes, plaintiff wins here.” Well, in what other cases will plaintiff win? How do we articulate the end point of the rule of law that we’ve set out there? (J-13-18-19; see also J-19, 23-24). Moreover, according to one state intermediate judge, a judge’s own “interpretive principles” are crucial to interpreting ambiguous legal language, such as the “Cruel and Unusual Punishment” clause: 250 I look at it in functional terms — what’s my role as a judge and what is it we’re doing here? And so I say, “I’m interpreting a Constitution.” I’m not deciding in some abstract sense what is “cruel,” what is “unusual”? I’m trying to figure out what the “Cruel and Unusual Clause” in a written document means. . . . [S]o, it depends on what interpretive principles you bring to the table (J-3, 9-10). The judges acknowledge that this search for principles is partly subjective because they are “reflections of . . . cultural norms, [like] equal privileges, [or] due process [where] there are no right and wrong answers” (J-25, 33-34). In these cases, the judge’s “worldview” is very influential in picking and applying the right principles: [W]hen you get to [the] cases that . . . involve these kinds of principles, that’s the only way we really can resolve it, because human beings are gonna bring to that our best perception of what that principle should be, and it may get dictated by our sort of, “Is the constitution going to be kind of expansive and broadened?” You could broaden protections to individuals over their government, or it may get influenced by sort of that general [attitude] . . . that . . . community . . . is more important than individual . . . . [It’s] more about somebody’s worldview . . . . It’s kind of a legal-social world view, and I really haven’t thought about it this way, but maybe that’s it. For some questions, maybe as human beings working with these broad principles, those are the only ways we can answer them . . . . (J-25, 33-34; see also J-10, 9). In the words of one federal circuit judge, “[t]here’s a lot of play in the joints” and thus, “[t]here’s no doubt . . . that we bring a whole host of attitudes. . . to the decision-making process” (J-14, 9-10). In other words, “[y]ou project yourself as best you can into . . . draw[ing] different conclusions or ascrib[ing] different standards of judgment based on their own experiences” (ibid.). And, in exercising this judgment, “there’s no law that says that I’m right and that somebody else that comes at the whole endeavor differently is wrong. That’s a philosophical, 251 jurisprudential choice” (J-3, 9-10). But this is a normal part of the judicial process: “[T]hat’s why you have human beings making the judgments. You don’t just enter in the data and come out with a computer-generated answer” (ibid.; see also J-16, 16; J-19, 19-22). Many of the judges – especially state Supreme Court justices and federal circuit judges – acknowledge that this kind of human creativity is not only inevitable but necessary for legal principles to develop and evolve over time. This is “because the premise of our system of law is that we move incrementally from what went before” to what comes next (J-26, 13-14). “[I]t is a gradual movement, where the law changes and develops” over time (J-18, 3). But the judges are adamant that these creative developments are brought about in a “responsible” way (e.g., J-26, 13- 14). This means that there is a relationship between the old and the new. The judicial process requires judges to “look back to rules that have served well in the past” in order to “serve the future” (J-23, 3). In other words, judges “[use] the old rules as analogies in order to develop new rules for the future [because] [t]here has to be some kind of security or comfort level” (ibid.). Thus, the relevance of judicial worldview does not mean that judges are allowing their partisan or ideological preferences to dictate the outcome. Rather, their overall worldview exists in some kind of relationship to the overall “fabric of the law” itself (ibid.). This relationship between the judge’s worldview and the overall “fabric of the law” is sometimes described by judges in a manner consistent 252 with the “world-disclosing” nature of legal language. In other words, even though the judge’s preexisting worldview significantly affects their interpretation of legal principles, the relationship works both ways. Their worldview does not stop developing once they put on the judicial robes. Rather, the judicial worldview is itself deeply constructed by the judge’s good-faith understanding of legal principles and values, as well as the professional values of the judicial institution itself. One simple way in which this happens, according to one state intermediate judge, is that the “common language” of the law “will give you a common ground for discussion” (J-25, 23-26). But this is only possible, the same judge insists, because “[w]ords change thoughts, and thoughts change words” (ibid.). That is to say, there is a mutual relationship between the legal words affecting the judge’s mind and the judge’s mind affecting the meaning of the words themselves. The same judge uses “preservation” and “standard of review” as examples of this “world- disclosing” phenomenon: “[P]reservation” became a language for something that had . . . to do with the proper role of an appellate court vis-à-vis a trial court and . . . whether the process was being well served. . . . And it’s almost as though the approach eventually leads its language, and so, you know, who knows when somebody came up with the words “standards of review.” . . . Things that were [already] . . . there, but . . . if you have a language . . . you will change your focus . . . . You may see it more and see it in more detail. Then it becomes a piece of the fabric (J-25, 23-26). The overall result is non-formalistic, but still faithful and respectful, view of the search for “right answers” in the law. For example, according to one state 253 Supreme Court justice, the fact that there is no uniquely correct interpretation of many issues does not exclude the possibility that one judge’s interpretation, arrived at in all sincerity and good faith, could still be trusted in a probabilistic way: I don’t agree with [other judges] there’s a right answer and if I’m smart enough, and [that if] I spend as much time on it as I have to, I will come up with the right answer. . . . On a lot of them though, there is . . . pretty clearly a right answer. . . . I think that we are looking for the better decision, the better interpretation . . . . (J-13, 13-14). Another justice on the same court described the search for “right answers” in much the same way: JW: So, for you, in your experience on this court, the goal really is to get it right . . . ? J-4: As right as it can be . . . . Get it as correct as can be and as principled and neutral and impartial as can be under the circumstances. I do not believe for a moment that there’s anything called “getting it right” in the law. It’s just too squishy an area; that kind of certainty has to be saved for more ultimate things (J-4, 10-11). 3. Good-Faith Virtues Just as with the formalist type of judging, the cumulative effect of these good-faith community influences and language practices is a particular conception of what the judicial role should be. Unlike the mechanical and rigid formalist conceptions of judicial virtue, the virtue attitudes summarized here acknowledge that room exists for personal and political maneuvering. But they nevertheless see the law as something having an objective claim on their loyalty and fidelity. This contrast between formalist and good-faith virtues can perhaps best be seen in the different ways of approaching the judicial oath of office. Where the 254 formalist view of the oath is of something that requires a mechanical, almost unconscious, following of legal rules, the good-faith view is much more sophisticated. It focuses, instead, on the duty to arrive at one’s decisions in a sincere and even-handed way. For example, one state intermediate judge was particular introspective about his view of what the oath requires: [O]ne of the things that struck me early on was how often I’d [come] back to my oath of office . . . . [A]t least weekly, on a somewhat of a serious basis, I think about the oath of office in a sense that I have to . . . figure out, “am I coming to the position I’m coming to because I think that’s good social policy . . . versus what the law requires, as best I understand it (J-12, 4-5; see also ibid., 6, 16-17). This obligation to follow one’s “best understanding” of the law is the spring from which flow various streams of good-faith virtue corresponding to all of the cardinal and ordinary virtues identified in Chapter Three. First, there is significant support for the cardinal virtue of “judicial justice” – making a reasonable effort to act in a uniquely judicial manner as opposed to a “political” manner. Above all, this means resisting the urge to think of how an issue should be resolved in the abstract, and to instead limit oneself to the demands of deciding a particular case. For example, one state intermediate judge is particularly adamant about the need to distinguish between philosophical justice and judicial justice: . . . I think that the . . . main problem . . . the whole legal [system] has is that the average person walking around the street . . . understands the concept of justice differently . . . . There, the concept of justice is just that, it’s a philosophical concept. Our job is to decide cases, and . . . it has nothing to do with . . . justice in the philosophical sense. It has to do with applying the 255 facts as found by the jury or by the judge . . . to the law and making the decision based upon what the facts and the law require. The average person on the street doesn’t really understand that I don’t think. . . . [T]he mother who’s son was arrested by a police officer and maybe had been roughed up on the way, . . . she wants justice. Well I don’t know what justice is. You know, people can’t come to us and ask for justice in that regard. If the officer was wrong in what he did and he was sued and he was found liable, that may be justice . . . but we’re not sitting up here on . . . high . . . spouting philosophical concepts of justice. We’re just trying to decide cases (J-8, 5-6). A state Supreme Court justice picks up on this same theme, distinguishing between general notions of morality and the role of the judge: I think people will say, “Look, [your] job as a judge is to do good, to do the right thing.” . . . I say . . . “Yeah, . . . personal integrity? That’s important. But we don’t pick judges for them to decide . . . right and wrong. [As another judge always says]: “I didn’t go to fairness school. I didn’t go to justice school. I went to law school.” . . . . (J-13, 13). Second, and more specifically, “judicial justice” requires a certain attitude of reasonable impartiality – an even-handed concern for the interests of others and a subordination of one’s own interests. For example, while it may be impossible to completely ignore one’s own political views, many of the judges interviewed for this project maintain that they feel obligated to try and put them aside. For example, one state intermediate judge recalls a case that required him to face in a fairly dramatic way his conflicting legal and political loyalties. It was a case involving the governor who had appointed him, as well as the governor’s political party, to which the judge still felt a great deal of personal loyalty. The judge agonized over the decision, 256 considering his political loyalty, but ultimately concluded that the judicial system “just does not work like this”: Now here’s a case [where] the guy who appointed me, who I happen to think the world of and I think what may have been [the state’s] best governor in the latter half of [the] . . . 20 th Century . . . was the real party. . . . And . . . I was having to tell him “You’re gonna lose, pal.” And I think that’s what you have to do (J-7, 20). As illustrated in this story, the good-faith attitude toward impartiality does not entail a mechanical or unthinking response to the political nature of the law itself or the political nature of interpretation. After all, according to one federal circuit judge, “[i]t’s not surprising that . . . people over the course of a lifetime . . . have developed a particular philosophy . . . . (J-22, 17). But even while frankly acknowledging the political nature of the legal and judicial system, many of the judges insist that they follow their deeply-felt obligation to be impartial: We operate in a highly political environment. And the statutes that we’re interpreting and the constitutional provisions we’re interpreting are . . . fashioned in a political environment. . . . And so . . . I certainly agree . . . that . . . there’s a very large political component to some of what we do. But I think that [judges] are pretty aware, especially at a court like this, . . . of the role that they are supposed to play. And I think they try and play that role (J- 13, 23). A justice on another state Supreme Court is even more explicit about the political nature of parts of the job, but just as insistent that judges can and do fulfill their neutral role anyway: J-26: There’s no question that who you are and whether you define [yourself as] a democrat or a republican, or a liberal or conservative, or whether it’s your judicial philosophy we’re talking about, or 257 whatever . . . has got to affect how you see the world. It affects everything else in your life, so why wouldn’t it affect your judging? JW: Right. But it’s possible in your experience, to still be restrained as a judge, and put those things [aside]? J-26: For me it absolutely is, yeah (J-26, 17; see also J-18, 1, 3; J-23, 2). Part of playing the impartial judicial role, then, involves the subordination of the judge’s preexisting biases and prejudices, whether these are political, social or personal. Unlike the formalist attitude of rigidly and mechanically ignoring these biases and prejudices, the good-faith judicial attitude involves acknowledging and attempting to minimize them. For example, when I ask one state intermediate judge whether it is possible to “completely purge” oneself of bias and prejudice, he responds: “No way you can purge them. You just have to . . . keep them in check” (J-8, 25). “[T]o some extent,” says another state intermediate judge, bias and prejudice “is just endemic to the fact that it’s a human enterprise. The reason we have human beings behind that desk instead of computers . . .” is that there there are “personal elements” that can’t be removed. “And we’re foolish to pretend otherwise. We’re disingenuous to pretend otherwise” (J-9, 17). Nevertheless, this judge maintains, you need to . . . try to be scientific about it; you’re testing to eliminate bias as much as possible. . . . [W]hat we’re trying to do is to eliminate the affect of bias by having transparent reasoning and showing . . . your math, so to speak – why that reasoning makes sense. . . . I need to be able to show you that it’s not my childhood that’s deciding this case. . . . [and] . . . show everybody that it’s not [my personal] baggage that’s driving the result . . . [I]t’s inevitable [that] it’s gonna play a role, but I think . . . honesty in a situation is minimizing the affect that it has . . . . (J-9, 19). 258 Examples abound in the data of judges remaining conscious of, but choosing to minimize, their biases and prejudices in this way. They include cases involving: same-sex marriage (J-11, 22-24); separation of church and state (J-20, 23); and Native American fishing rights (ibid.), among others. Judges discuss several practical techniques they use to minimize the effect of their biases and prejudices in these kinds of cases. For example, one state intermediate judge recounted his attempt to combine “inductive” and “deductive” reasoning processes in coming to a decision, as a way of confirming that his decisions are legitimate interpretations of the relevant legal principles rather than his own “baggage” (ibid.). More simply, one federal circuit judge uses what he calls the “red-face test”: [M]y approach is to try and make sure that . . . [i]f I’m writing a decision and I’m nervous about it, [because] . . . I’m forcing myself to . . . push the envelope on reading the cases or the facts . . . . I know when I’m doing that because that’s what you do as a litigator . . . . [W]hen I find myself moving in that direction, I take a real hard look at whether I’m letting my personal feelings drive the result as opposed to letting it go where it really ought to go . . . . (J-14, 12-13). In other words, judges try to avoid professional embarrassment by attempting to transcend their own personal preferences. Another technique is simply to be up-front and honest with the other judges or the parties to the case about one’s own biases (e.g., J-20, 7-8). Sometimes, this honestly requires that the judge recuse themselves from the case entirely. For example, one federal circuit judge gives several examples of cases where he has, or would, recuse himself. These include cases where the 259 judge had personal experiences with a similar violent crime, cases involving property disputes that are similar to his childhood experience, cases involving abortion, and even a case that involved his favorite football team! (J-20, 7-12). For most judges with good-faith impartiality attitudes, however, changing their minds is more common than having to recuse themselves. One federal circuit judge acknowledged that he and his fellow judges have strong “legal-philosophical” views that have “been formed over a long period of time” (J-22, 8-9). But, he insists, we are perfectly capable of adopting a new philosophy. [Also,] I think we’re capable of understanding . . . when the law does not favor the political philosophy that we once established . . . . So I think we are perfectly capable of . . . voting against our . . . philosophical interests. I think we’re perfectly capable of doing that. I think we’re perfectly capable of reversing our own views on things. (ibid.; see also, ibid., 16). A final aspect of the good-faith impartial role-conception insisted upon by the judges is the difference between the judicial and legislative roles. For example, one state intermediate judge, this different flows directly from the more abstract distinction between “judicial justice” and more general philosophical notions: If you want to get into the philosophical concept of what justice is, that’s why you have the legislature to pass laws, which, which may have more societal implication than impact. For example, should we have . . . worker’s compensation, should we have social security? Those are all social issues . . . where one could say “well this society is more just in the way it treats its people as others.” We are, we are confined to dealing with the laws if the legislature pass, whether wise or not and our concept of justice is applying the law to the facts and coming up with a result (J-8, 5-6). Another state judge discussed the difference in terms of their relationship to the underlying issues being decided: “[L]egislators . . . have positions on issues [based 260 on which] . . . they want their constituents to vote for them, and there’s an expectation that they’re gonna carry through. I don’t think that’s appropriate for judges. . . . And so, [we] have . . . different responsibilities” (J-12, 18). A third aspect of “judicial justice” strongly supported by the data is the virtue of “integrity” – the judge’s concern for the coherence and integrity of the law itself. This shows up in the most obvious way in the judges’ explicit ethical commitment to “getting it right” even in cases where there may be more than one reasonable view. One federal circuit judge aptly summarized this good-faith ethical commitment: “[B]ecause I do have a strong personal ethic and commitment to getting it right, I want to be accurate in what I say in my written materials. . . . I want to be applying the law rigorously. . . (J-14, 6; see also J-6, 11-12; J-23, 2). More specifically, the obligation to “get it right” means that the judge is ethically committed to following authoritative principles, even if they are subject to varying interpretations. Notice, for example, the strong ethical tone in the way one state Supreme Court justice describes how the search for the right legal principle is deeply constitutive of the judicial role, even when those principles are ambiguous or unclear: J-4: I guess my view is: you have to believe . . . that you’re doing something more than just playing word games; that you are . . . in search of principles — rules that make sense in terms of the governance of society. The day you stop believing that, you can leave. And, if you don’t believe when you come that it’s anything more than a word game, that it’s all just amorphous . . . you probably shouldn’t [be a judge]. . . . I think you have to have . . . faith that what you’re doing makes a difference and that it is principled. 261 JW: Okay. So, it wouldn’t make sense to you to be a judge outside of that obligation . . . ? J-4: It would not. It would not make sense to me (J-4, 16). A state intermediate judge picks up on the same theme, emphasizing the constraining effect of even reasonably debatable principles: JW: [When] you feel like somehow the law is not right — [like] there’s something about the law in this situation that’s not right or just about the law itself that is wrong. What’s your reaction to that? J-5: My reaction is that [it] happens more frequently than people realize, and you do what you think the law requires you to do. I think that is reality, which I think lay-people don’t understand. . . . I mean, as a trial judge I felt . . . many times [that] I hated to do this, but here’s the case and I’ve got to follow it. I see that as true here [at the appellate court]. I mean, you have a little more freedom . . . [b]ut in the final analysis, if this is what the statute requires, [or] the Supreme Court decisions require, you live with them. . . . There are times when you view the law differently, but I don’t know any [judge who] thinks that they’re free to do whatever they’d like to do. You do feel constrained by the legal principles (J-5, 12-13). This ethical attitude of feeling “constrained” or at least strongly guided by one’s best interpretation of the existing principles despite interpretive freedom is quite common among the judges I interviewed, whether state or federal, intermediate or high court: “So it's always sort of channeled by the standard and by the precedents . . . I think that's the way it's supposed to be. . . . The system is based on judges working that way . . .” (J-6, 37-39). “[J]udges clearly have . . . some flex in what they do, but it’s guided by – or should be guided by – statutes, [the] Constitution, cases interpreting [the] Constitution . . . . It’s not kind of a free-for-all” (J- 11, 10). 262 “I don't care what most people would do. . . . It's a matter of principle” (J-17, 24-25). “I really try to go where the law takes me. . . . I do decide cases where the research is not what I would want. . . . I think your intuitive take on the case or what seems right, . . . is influenced by who you are. How could it be otherwise? . . . . But you never start out with saying “I want this result. . . .” (J-25, 6-7). Even more specifically, the judges often report a good-faith sense of obligation toward precedents. That is to say, they feel a kind of “moral duty” to follow the analytic frameworks or general principle laid down in an authoritative precedent, even if they think it is confusing or mistaken (see J-26, 13-14). For example, one state intermediate judge described his principled decision-making process in a free-speech case as an illustration of his commitment to good-faith values: I wrote a majority opinion that said, “under the controlling precedent, we have to figure out whether there is a historical exception that permits state regulation of this activity.” And I did an exhaustive historical analysis that went back to the Seventeenth Century, and concluded on the basis of that history that it clearly was something the framers [of the state constitution] would have understood was perfectly within the Constitutional prerogative of legislatures. As a matter of policy, do I like that? That’s a different question. But I defined my role . . . in the context of the precedent that binds me, as looking for the history and trying to diligently understand what the framers would have done (J-3, 10). Similarly, another judge – this one a federal circuit judge – rattled off a series of cases where he and his colleagues felt bound by precedent they didn’t like, including cases involving search and seizure, desegregation, immigration law, separation of church and state, the death penalty, homosexual rights, and abortion (J-14, 20-23). 263 Another state intermediate judge discusses the principles of preservation of error and standard of review as ethical obligations to followed regardless of substantive injustice or unfairness (J-25, 22-23). Regardless of the specifics of the case, these judges appear to be treating their obligation to follow their best understanding of precedent regardless of the outcome as a virtue expected of all judges, not just as their own personal, idiosyncratic view. When I asked one federal circuit judge about his reaction to cases where he may disagree with an authoritative legal principle, he graphically summarizes the good- faith virtue of judicial integrity in a way that passes moral judgment on others who may disagree: “Well, I’d hold my nose, and I’d follow my oath . . . . I think that some of my colleagues don’t hold their nose, and I think its bad” (J-20, 17-18). Unlike the formalist view of rigid and mechanical following of precedent, however, the good-faith view of the virtue of judicial integrity does not ignore the need to engage in creative interpretation or be concerned with the practical results of the decision (e.g., J-26, 11-12). One state intermediate judge even quotes Justice Holmes’ famous anti-formalist slogan – “the life of the law has not been logic; it has been experience” – in order to discuss the virtue of using “common sense” in addition to legal principles (J-9, 23-26). One state Supreme Court justice agrees with the relevance of common sense and practical considerations, but is more explicit about how these things work together with the legal principles in a good-faith way: I don’t think that I would say, “Gosh, . . . I can bring in all this stuff and come up with a . . . result that’s gonna have the right impact . . . [M]ost 264 judges I don’t think [would] . . . say, “I don’t have a judicial philosophy . . . I’m sort of . . . trying . . . to do what’s gonna work.” [But] if there’s an interpretation of the [principle] . . . that makes it work and there’s one that doesn’t, let’s choose the one that makes it work (J-13, 29). However, regardless of the varying ways in which the relationship between legal principles and the outcome of a case are discussed, most of the judges are adamant that they are ethically required not to decide cases in a result-oriented manner. One state intermediate judge expressed her moral judgment against the result-oriented approach in particularly stark terms: [T]o me, it feels really wrong . . . . It's dishonest. I mean, you're supposed to be dispassionately applying the law to a given set of facts . . . regardless of what the outcome is . . . . [A]nd sometimes, you know, the law does result in something that you think is unfair or wrong. But as I said, I've done that a lot of times. I've said, "I feel constrained to reach this result, given Supreme Court precedent. However, writing on a blank slate, I would do otherwise. But I'm not" (J-6, 27-28) This moralistic attitude toward result-orientation is quite a common sentiment among judges (e.g., J-11, 8-10; J-26, 7-8; J-18, 2; J-18, 3). In fact, even the elected state judges appear to feel this obligation even though – and perhaps especially because – the voters may want them to be result-oriented (see J-10, 4; J-13, 7-8). The fourth aspect of “judicial justice” supported by the data is the more practical virtue of “situation sense” or “legal vision” – the judge’s ability to size up a case and discern which elements are most important. The judges in this project describe this “legal vision” as a kind of “intuition” or “comfort level” that organically develops out of their community and language practices. One state 265 intermediate judge provides some very concrete examples of when this intuition is necessary: [T]here [are] some cases where it’s clearly tough because [there’s] a clear legal issue the answer to which is obscure for one reason or another, whether it’s interpreting a statute that everybody can look at and say, “this is ambiguous; what the hell does it mean?”; and sometimes it’s a statute that is part of a larger statutory scheme which is something that you’ve got to get your arms around; and sometimes it’s a question where, clearly, different courts have come out differently on the same issue. So, you’ve got a nice cold question of law, and it’s relatively difficult. Other cases, [like] reviewing summary judgment . . . . “is this a rational inference . . . that somebody should be entitled to draw?” . . . [In JNOV cases] . . . . “is there enough to support the inference.” . . . [Y]ou wrestle with it (J-5, 8-9). He goes on the describe the intuitive process of “wrestling” with such cases: [I]t’s intuitive, I suppose — you couldn’t subject that analysis to formal logic. . . . It’s not a question that can be handled mechanically . . . . [But] it’s often true that the more time you spend on these things, the more that intuitive feeling will evaporate — you get in and you see the record and you put together from the bits and pieces of the evidence something where it becomes pretty clear, either you can or you can’t, for one reason or another. And so many of those, ultimately become clear because you take the time to do it carefully and get on top of the whole record (J-5, 8-9). When I press other judges about this kind of intuitive approach to difficult cases, I get more details about the strong feelings that accompany it. For example, one state intermediate judge insists that the intuition is based on the law, even as she struggles to find the proper words to describe it: “[I]t's hard to articulate what that means, except that I get a very strong feeling. I do. You know, . . . 98% of the time, I have a very strong feeling of how [to decide] a case . . . legally. Not because of . . . equity or sympathy. . . . [I]t's really what the law should be or is” (J-6, 12). 266 A federal circuit judge describes the same thing as based on a combination of “collective wisdom” and “intellectual honesty” (J-14, 12). This intuitive sense of rightness, the judges maintain, is backed up by what might be called the virtue of “judicial wisdom” – the obligation to know and understand as much as possible about the relevant law. One state intermediate judge reports feeling uncomfortable with her own instincts early on in her judicial career precisely because she didn’t know enough about the law: “[The other judges] seemed to know things . . . and . . . have a good idea what the answer was and, at first, I was sort of nodding my head, ‘yeah, that sounds right,’ . . . because I didn’t feel comfortable saying, ‘I don’t know.’ [Yet] as time has gone on, I think I’ve felt more comfortable . . .” (J-12, 4). Another state intermediate judge with a great deal of experience confirms this connection between legal knowledge and legal instinct: “Every month I read all these [opinion drafts] and I look at it and I say, ‘well this appears to be the right outcome.’ And . . . after 12 years . . . I know most of the laws and so I sit down and I say ‘yeah, that looks like the right decision’” (J-8, 25-26). More specifically, another state judge makes a connection between the legal knowledge gained through his years of judicial experience and the intensity of his feelings about the rightness or wrongness of certain decisions: . . . [W]e had a dispute on a search and seizure issue . . . . Well, on this particular point, I’ve dealt with it for 35 years. I’ve read probably every significant supreme court case on this issue and I’ve fought this particular subject for 35 years. I probably have strong views in this area. I would like to think they were informed by research . . . . So, do I have strong views in some areas? I probably do. . . . I’ve been over a particular subject matter on 267 a continuing basis for three and a half decades, does that impact my . . . approach to the case? Absolutely (J-19, 4). Underlying this virtue of “legal wisdom” is a concern for the overall coherence of the law itself – whether it makes sense in a logically ordered way. Some judges can even wax poetic about how the law fits together, like one federal circuit judge who marveled at “how one thing really just weaves into another [as] a logical extension. . . . [T]here’s really a beauty in that” (J-26, 14). Beyond the aesthetic value of weaving various rules and principles together in this logical manner, however, one federal circuit judge sees legal coherence as a kind of ethical obligation to make sure the law is consistent, regardless of who the judges are: [W]e need to have consistent standards across all of our decisions so that our decisions ought not to turn on the identity of the judges that we get. . . . [W]e have to have some kind of a common understanding . . . . there has to be something coherent . . . about it (J-22, 14-16). Several judges feel so motivated by their sense of legal order and coherence that, even while following the authoritative rules and principles that are not coherent, they feel obligated to insert dicta in their opinions calling attention to that lack of coherence. I had the following exchange with a state intermediate judge regarding this obligation: J-6: [S]ometimes the Supreme Court [will] . . . say something in a 25- year-old case and then keep repeating it. And . . . it's like that game “Telephone” where it changes and gets distorted and becomes something it wasn't ever supposed to be. And you know, somebody needs to say, "Wait a minute. Wait a minute. Wait a minute." . . . [S]ometimes . . . it is wrong. Like with the U.S. Supreme Court where they overturned . . . Ohio vs. Roberts and 25 years of . . . 268 “indicia of reliability.” And, "Wait a minute! That's not what Confrontation is about." . . . So . . . I wouldn't have minded . . . saying, "I'm constrained by Roberts but –" JW: And that – does that feel like that's more part of what you're supposed to do . . . as a good appellate judge? J-6: Yeah. Yeah. JW: Is point out – J-6: Yeah. "How about this?" You know? . . . But still follow it if it's binding precedent (J-6, 39-41; see also J-12, 19). In the words of a state Supreme Court justice, this kind of thing is “just part of your role” as an appellate judge (J-13, 27). Another state intermediate judge feels obligated to go even further – filing a concurring opinion pointing out some legal incoherence while still following the law: [In one] domestic relations case . . . I felt very, very strongly the Supreme Court had gone down the wrong path, and I concurred because I felt that the result the majority had reached was utterly consistent with what the Supreme Court had said, [but] that the Supreme Court had failed to correctly interpret the statute and had also failed to follow . . . a longstanding precedent . . . . And so I . . . wrote a nine-page concurrence explaining how I felt about that. I thought about it long and hard because what you don’t want to do is get into a game you can’t win. . . . You know, it’s sort of like spitting on a giant. But, on the other hand, . . . I felt very strongly that I had a point to be made. . . . I thought, “well, this is worth doing and it advances the understanding of the law. I think they missed the boat here . . . .” . . . So I talked to my colleagues and we decided it was a worth while thing to do (J-9, 36-38; see also J-10, 12-13; but see J-14, 23-24). In addition to the cardinal virtue of “judicial justice,” which involves the three aspects of impartiality, integrity, and wisdom, there is also support for attitudes consistent with more ordinary judicial virtues. The main ones include maintaining the appearance of impropriety (see J-4, 18-19; J-8, 12; J-20, 7-8; J-18, 3; J-24, 1), maintaining a good work ethic (J-7, 2-3), and exercising analytic skill (J-8, 1-2). Just 269 like the cardinal virtue attitudes, what distinguishes these attitudes about the more ordinary aspects of the judge’s job as good-faith ones is their lack of rigidity – that is, the extent to which the judges acknowledge that there are different approaches that might be equally virtuous. In the final analysis, however, what really marks all of these virtue attitudes as good-faith ones is the judges’ reliance on “narrative unity” and “tradition.” In short, these are not individual attempts by judges to strive heroically to meet external standards. Rather, they are evidence that the judges are consciously submitting their own independent judgment to the authority of communal ways of thinking and acting. In other words, the judges see themselves as part of a larger story about law and courts that makes sense of their individual actions. Again, however, judges frankly acknowledge that there is a great deal of freedom in choosing a good-faith attitude toward the larger story of the law. Indeed, much of the difference between various decision-making styles can be explained by the stories judges tell themselves about their place in the process. In the words of one state intermediate judge, this is a function of “personality differences” with regard to how to view the judicial role (J-25, 38-39; see also J-17, 9-10). One state intermediate judge goes further, connecting the individual judge’s overall view of their role to the way they interpret certain words in statutes in precedents: Just the other day, I was talking to a judge about just that thing. It was a sentence in a Supreme Court case that we all agree is controlling, but it can mean different things depending on which group of words you want to emphasize. And which group of words you want to emphasize turns out to 270 depend on some fairly fundamental philosophical, jurisprudential approaches to law. In that case, it has to do with the extent to which officers can frisk a person for officer safety reasons. . . . [I]t depends on the extent to which you are predisposed to want rules, or to permit individuals to make decisions to exercise their discretion within a vaguely defined rule of reason. . . . [T]here’s no law that tells you that one or the other of those is right . . . . I’m more inclined — it’s no secret — to want rules. I want to constrain discretion. . . . Others will tell you that every case is different, and you need to have flexibility in the law to accommodate each of those differences. . . . [In these cases,] you find that the fault line is . . . defined in terms of . . . general ideas about how law works and what the role of the judge is (J-3, 12-13; see also J- 14, 12-13; J-16, 9; J-14, 8). Other examples of situations where these different role perceptions might play a significant role abound in the data: Deciding whether a trial judge abused their discretion (J-8, 6-7; J-9, 19-20; J-19, 13-14); Reviewing a trial verdict for “substantial evidence” (J-19, 15-16); Deciding how quickly to issue an order upholding a deportation order (J-22, 12-14); Reviewing the imposition of the death penalty (J-16, 9); Interpreting “preservation of error” doctrine (J-25, 21-22); Reviewing arbitration decisions (J-8, 23-24). Even given this variation, however, there is still a strong common bond uniting these disparate good-faith attitudes. No matter how differently judges interpret the law in all these specific areas, they are united in their general attitude of obligation to their sincere, good-faith understanding of the law. Another way to say 271 the same thing is to assert that perhaps all these judges are attempting to subordinate their individual views to their best understanding of the law, even if their best understanding of the law may differ. As one state intermediate judge put it: “there is not always a single right answer . . . in every circumstance. . . . But it’s still a good discipline” to assume that there is (J-9, 38-39; see also J-14, 13-14). Picking up on this same theme, one federal circuit judge referred to the law as a kind of navigational lode-star, which provides some objective guidance and discipline, but can still be subject to error and lead judges to different destinations: [I]t takes a disciplined temperament where you follow the rule of law, and if you use the rule of law as a kind of a navigational star, you kind of insulate your personal preferences and just keep a little – kind of a little firewall between your personal preferences and what the law requires. It’s the idea, I guess, of being impersonal and dispassionate, and keeping your eye on the target, on the goal, which is the rule of law. Now, you may be wrong, actually, about what the law requires, but if you’re honest about trying to follow the rule of law, you’re less likely to do mischief than you are if you let your personal intuitive or cultural preferences enter into it (J-15, 4). Good-faith virtue attitudes are thus rather “traditional” in that they view the law and the legal process as external to the judge (see J-10, 17). But they view the externalism of the law less as a rigid, mechanical constraint, and more as an ethical perspective that can discipline and channel judicial thought and action. When judges see the story of the law as something bigger than their own individual story, and consciously subordinate their own preferences to it, they may still exercise a great amount of discretion and interpretive freedom. But they feel more confident that their decisions are trustworthy. The best summary of the difference this attitude 272 makes was provided by the following federal circuit judge: I think part of it is [whether] you see yourself as the keeper of a particular flame or whether you are there to follow law that is independent of what judges say it is. [If] you come to this position thinking that law is what the judges say it is, then that’s a self-fulfilling prophecy. Whatever I say it is, is law. . . . [But] if you come believing that the law is something external and larger than [you] are and . . . acknowledge that there are principles outside of yourself, then I think you will have a . . . healthy skepticism of your own thinking. But if you think that the law is whatever the judges say it is, then it’s just another form of politics . . .” (J-22, 10-11). The good-faith picture of judging described in this section is summarized in Figure Five: 273 Figure 5: Good-Faith Social Practice Community Language Virtue Socialization into attitude of obligation Reasonable deference Educative effect of court discussions Creative freedom Obligation to legal frameworks Fidelity 274 C. Conclusion: The Rule-of-Law Implications of Formalist and Good-Faith Judging These two kinds of attitudes account for a significant portion of the judicial attitudes represented in my sample. Given the nature of informal interview data, it is difficult to assign precise percentages to each kind of attitude. However, the judges’ responses to a question asked at the end of each interview about their reactions to various accounts of judicial decision making provide a rough measure. I briefly reviewed three different accounts with each judge – (1) formalism; (2) realism; and (3) Dworkin’s good-faith theory – and I asked each judge which account best described their attitudes. Formalist and Good-Faith responses accounted for 2/3 (67%) of the responses. A more precise measure of the prevalence of Formalist and Good-Faith attitudes is provided by adding up the numbers of pages of coded data devoted to each type of judging. These page numbers are summarized below in Table Five: Table 5: Summary of Coded Data Pages (Formalist & Good-Faith) Formalist (Code 1) Good Faith (Code 2) Community (Code “C”) 28 139 Language (Code “L”) 19 49 Virtue (Code “V”) 29 101 Totals: 76 289 Percentages: (of 481 total pgs.) 16% 60% Overall, then, as summarized in Figure Six, Formalist and Good Faith judging together account for over ¾ (76%) of the coded data: 275 Figure 6: Formalist and Good-Faith Attitudes These statistics provide a good illustration of the post-formalist version of the rule of law sketched in Chapter One. Specifically, it is clear that there are a significant number of judges surveyed in this project who have strong attitudes of fidelity toward law. It is true that the judges with formalist attitudes seem to agree with the formalist account of the rule of law – the proposition that legal rules have an external, constraining effect on their actions. But, according to the post-formalist account of the rule of law, what matters is not the truth of this proposition, but the judge’s belief that it is true. Some judges appear to be more conscious than others – or at least to care more – about the law’s lack of objective clarity, determinacy and its inherent subjectivity. But what matters to the rule of law is that – no matter how Formalist (16%) Good Faith (60%) Other (24%) 276 unclear, indeterminate, or subjective the law actually is – the judge acts “as if” the law is controlling. This happens when the judge subordinates her own personal or political preferences to her best understanding of what the law requires, whether that understanding is that the law requires rigid and mechanical following or creative interpretation. Thus, both the formalist and good-faith attitudes described in this chapter thus uphold the rule of law by showing that judges have the proper subjective attitudes. Moreover, it is also clear that these rule-of-law attitudes are supported by particular components of a consistent social practice. The legal community fosters and nurtures these attitudes by educating judges – in law school and legal practice – to see the law as having a life of its own, separate and apart from their individual preferences. The judicial community also reinforces these attitudes through the discussions that take place among judges, and through particular perceptions of other legal and political elites. Rule-of-law attitudes are also reinforced by particular language practices, which deeply influence the way judges think and reason. Finally, the outcome of these two aspects of the social practice is a particular view of judicial virtue as a kind of ethical obligation to subordinate oneself to law in either a mechanical or reasonably faithful way. In summary, then, both formalist and good- faith attitudes are products of specific community, language, and virtue practices, which in turn comprise an overall social practice. This social practice constructs the rule of law by deeply constituting the internal attitudes of judges. 277 CHAPTER SIX: CYNICAL AND ROGUE JUDGING “You know, I think half the time in a difficult case the judge doesn’t really know how he’s coming to the decision. . . . [H]ow you get there and why, I don’t know. Sometimes on difficult cases, I’m not sure why because there are arguments on both sides. You could justify either one. . . . I think in a number of cases that could easily go either way, why you come down on one side or the other, who knows?” --Federal Circuit Judge “It’s like looking at the forest without caring about all the trees. . . . I don’t have to read all the statutes or laws in order to know the right answer. What I need, instead, is a global vision of how the world works – an unexamined, gut-level, initial impression. . . . I start at the end and work backwards.” ” --State Intermediate Judge Whereas both the formalist and good-faith judicial attitudes generally support the rule of law, cynical and rogue attitudes are generally antithetical to the rule of law. If judges have a lack of respect for the available legal materials, seeing them as too indeterminate, ambiguous, or contradictory to be worthy of their loyalty, or if they see the law merely as an instrument that helps them accomplish their preexisting personal, social, or political views, this will be consistent neither with the traditional nor with the reformulated views of the rule of law sketched in Chapter One. In this chapter, I will discuss the interview data that seem to support each of these two modes of judicial decision making. First, I will summarize the pattern of cynical self-identification by judges, showing that approximately 12% of them consciously identified some version of extreme realism or pragmatism as an accurate 278 description of their decision making. I will then review the patterns of alienation, lack of preparation, and legal malleability that emerge in the way these and other cynically-minded judges discuss their experiences with legal and judicial community. These patterns are reinforced, I will show, by specific language practices, including an overall skepticism toward “right answers,” a distrust of legal rules and principles, and a cynical use of legalistic jargon and rhetoric. I will show that the result of these two general patterns is the vice of a “who-cares” mentality, which is more concerned about deciding cases than following the law. Later in the chapter, I will also show how some judicial attitudes go even further. About 8% of the judges I interviewed explicitly identified with an overtly political, even partisan, view of judicial decision making. These judges, and others with similar attitudes, seem to have community experiences before becoming judges that have trained them to see the law as purely instrumental for the exercise of their own preferences. Moreover, they tend to perceive other judges as having the same attitudes as they do, which seems to reinforce their instrumentalism. When discussing language practices, they tend to focus on overtly political explanations of judicial disagreements, and they tend to see legal interpretation more generally as a mere rationalization for a pre-determined decision. Not surprisingly, I will show, the outcome of these community and language influences is the vice of results- orientation. 279 As will be seen, the limited amount of data supporting either cynical or rogue judicial attitudes means that the rule of law is only very rarely threatened. However, the brazenness of some of these cynical and rogue attitudes suggests that not all judges have imbibed rule-of-law values to the same extent. A. Cynical Judging When I reviewed various accounts of judicial decision making with the judges, including radical realism and its social scientific progeny, Attitudinalism, only 3 of them (approximately 12%) consciously identified with this account (J-4, 18-19; J-16, 17-18; J-22, 22-24). Not all of these judges were consistently cynical, however, about their orientation toward law. Indeed, some who identified with this account turned out to have some of the most formalist or good-faith attitudes in the sample. Nor were these the only judges who evinced cynical attitudes at some point in the interview. However, my sense is that this figure still provides some rough measure of the overall support in the data for this type of judging. 1. Community Influences When questioned about those experiences that best prepared them to be a judge, some judges are quick to point that did not feel ready for this job. As one state Supreme Court justice frankly reported, “I wasn’t prepared” (J-4, 1). Similarly, other judges report feeling “surprised” by the nature of the job for one reason or another (J-25, 20-21). For some, this surprise was based on their lack of preparation or alienation from the legal process going all the way back to law school. In short, 280 some judges either didn’t like or felt alienated by law school. As one state intermediate judge frankly acknowledged: It was the Seventies. I think perhaps that’s what you did when you couldn’t figure out what else to do. I didn’t particularly like law school. I think I graduated from law school more out of stubbornness than anything else (J-3, 2). An older federal circuit judge felt an even stronger dislike for law school in the 1950s, calling it a “horrendous” experience because of all the racial and gender “injustice” she saw and felt. Moreover, she “didn't like the adversary system,” finding it “too costly, too painful, too destructive, too inefficient” (J-17, 2). Other judges faulted the use or abuse of the Socratic method for their negative law school experience (e.g., J-25, 3-4). Even though they liked law school, other judges pointed to the realism or instrumentalism they saw there as a kind of training to see law in a cynical way (e.g., J-13, 12). In particular, one judge recalled his experience in torts, where his professor consistently focused on the social and political objectives served by this area of law (J-16, 8). Several judges were disillusioned after law school, when they served as law clerks to federal or state Supreme Court justices or lower-level judges. For example, one state Supreme Court justice who had clerked on the U.S. Supreme Court seemed disillusioned by the almost total lack of substantive discussion on the court, coupled with substantive divisions over social or legal policy: 281 I used to always assume that when you got to the Supreme Court everybody would . . . talk to each other. But they didn’t that I could see. . . . [A]ll the judges sort of stayed within their own [offices]. [The] clerks would go . . . back and forth occasionally, [but] people really didn’t discuss stuff. . . . But my sense was that people . . . had [their own] vision of how society worked. They had a vision of the role the court should play and how inclusive or not inclusive it should be and basically they would interpret the Constitution . . . consistent with that vision (J-11, 2). Other judges found themselves extremely unimpressed by the level of intelligence and learning possessed by their boss. One federal circuit judge recalled his disillusionment with the erudition of the judge for whom he clerked: “I . . . was under the impression that the people who sat on the courts were very learned, distinguished individuals. . . . Then . . . I clerked for a judge and he was a very human, warm, decent person, [but] not terribly learned. . . .” (J-16, 1-2). Similarly, other judges reported their own negative impressions of judges throughout their legal careers before becoming judges. The same federal circuit judge quoted above, who clerked for the not-too-bright judge, also had some negative experiences with the temperament of judges he saw while practicing. In one case, the judge was a “horrible, ugly, mean man and I thought, ‘I can’t believe judges are really like this. This is a disgrace.’ . . . Nasty, . . . unsympathetic, rude, arrogant and not too bright” (J-16, 2). Other judges were overtly racist or just “very unimpressive people” (ibid. 2-3). Moreover, “[A]s a body, he “wasn’t overwhelmed by their intellectual abilities” (ibid., 3). The result was that this future judge’s overall impression of his supposed role models was that they were “quite a disappointment” (ibid., 2-3). One state intermediate judge agreed that the 282 temperament of some of the judges she saw as a young lawyer was particularly bad, recalling one instance where a judge once “flipped the briefs shut and . . . turned his chair around” with his back to the lawyers in order to show his disdain (J-25, 6-7). On a more substantive level, one state intermediate judge recalled her experiences with judges who were obviously biased: [S]ometimes judges seemed to contort themselves to work with the prosecution. . . . [Y]ou'd have a judge who would say, in one case, . . . “X if it means the prosecution [wins],” but . . . the opposite [result] . . . for the same circumstances [in other cases]. . . . And it was really disappointing, because . . . I felt that a judge shouldn't do that (J-6, 4-5). Picking up on the same idea, another state intermediate judge recalls the “good old boy” network that seemed to prevail when he was a young lawyer: “it’s where the insiders get the advantage – somebody who knows the unwritten rules, somebody who’s played golf with the judge, somebody who’s in the judges’ social [set], all of that sort of thing. . . .” (J-9, 10-12). The result, according to this respondent, was that instead of judges acting as neutral umpires, there was a kind of “hometown refereeing,” where “the home team gets the calls” (ibid.). The main thing, however, that makes judges “very surprised” by the judicial role is the limited or problematic nature of their legal experience. One reason a judge would be surprised by their duties would be their lack of any practice experience at all – in one case, because of a career in academe – which meant she “wasn’t prepared in terms of the practical aspects of trying a case and studying a record and so on” (J-4, 1). Another judge was surprised because of the “huge areas” 283 of law that he “knew nothing about” (J-22, 1). Still other judges simply felt alienated from the practice of law for one reason or another. One state intermediate judge was troubled by certain positions or clients he had to support or defend, such as corporate or family law clients with a “no holds barred mentality” or were just “gaming the system.” This left a bad taste in his mouth about legal advocacy: “I didn’t like being an advocate and I saw that the position I was taking was really not the best outcome for the situation. . . . I did advocate my client’s position, but it bothered me . . . I just had no enjoyment doing that at all” (J-8, 2-3). These and similar legal practice experiences teach future judges that law is inherently malleable and adaptive. Unlike the other judges, surveyed in Chapter Five, whose experiences trained them to look for the “right answer,” regardless of the client’s wishes, these judges learned to manipulate the law in order to reach desired results. This connection of law to desirable social or political goals goes back even earlier than legal practice for one state intermediate judge: “I think my interest in law probably goes back, in some ways, to early things in terms of senses of . . . [r]ight and wrong and justice and how things ought to be” (J-12, 1-2). For this judge, this underlying sense of justice to which the law had to correspond was wrapped up in the civil rights struggle and, eventually, opposition to the Vietnam War (ibid., 1-3). The experience of watching law being used to support these struggles “was pretty powerful” and got him interested in going to law school (ibid.). 284 More to the point, another state intermediate judge recalls his own prowess as a young attorney in making the law mean whatever it had to mean in a given case: J-3: When I was in private practice, . . . the senior partner would come in and say, “here’s what we need to do. Can you do it?” And I always took some perverse pride in . . . say[ing], “yeah, I’ll make it happen.” And there were sometimes I had to hold my nose, but I could usually put it together. . . . and it didn’t much matter which side I was taking. JW: So, you found the law to be pretty malleable; I mean, there were certain parameters, but — J-3: Yeah (J-3, 4-5). Specifically, the same judge remembers how malleable and subject to manipulation the law was in a famous case he successfully argued while working for the state: I knew even going into this . . . that [the cases] rested on fairly shaky ground. . . . To this day, I look at [the decision] and scratch my head and say, “how did they do that?” It’s great public policy, but how did we do that?” (J-3, 5- 6). Perhaps because of these early experiences of disillusionment with the legal system, or training to see the law as inherently malleable, some judges do not experience the same amount of collegiality and reasonable disagreement once they become judges. Indeed, they tend to see the judicial process as either polarizing or isolating. According to one federal circuit judge, the court discussion process “drives people [apart] and polarizes them. . . . [I]f it’s an intensely fought battle, it pushes you to become an advocate” for your own interpretation (J-14, 15). This sense of judicial advocacy serves to lessen the amount of discussion among judges. For example, when I ask one state Supreme Court justice about the amount of discussion on his court – a court where other justices had claimed there was a good amount of discussion – he answers, “You know, . . . really there’s not a lot” (J-11, 285 14; see also J-13, 18). He goes on to ascribe this lack of discussion to his own skepticism about its value: I don’t know that there’s any efficiency to be gained by over-collaboration because [then] you’ve got a larger group of people that you have to work with. . . . [I]n other words, if you . . . accommodate too much to take into account other people’s views, they’re either never gonna be satisfied or they’re gonna be satisfied at too high a price . . . . (J-11, 14-16). A justice on another state Supreme Court summarizes the feeling of isolation that results from this kind of attitude: “[W]e all are sort of isolated. So if judges are speaking to each other a lot I don’t know it. They don’t come down to me. And I don’t go to them” (J-26, 10). Perhaps part of the reason for this polarization and isolation is the perception that the minds of other judges are already made up. In terms of general philosophies, one state intermediate judge thinks that: [W]e all kind of are who we are when we get here. And even if we couldn't articulate it, [we] probably have some sort of philosophy. It's not going to change materially. . . . Everybody's like that. . . . I mean, . . . I feel I can learn things from everybody, and I have. But nothing that's really changed me, you know, at a basic level (J-6, 21). An intermediate judge on another state court agrees that there is a kind of close-mindedness among judges: “Part of it I think is the way our brains are hard wired. . . . (J-9, 17). A federal circuit judge recalls his own brain being “hard wired” for his personal approach to the job from the very start, notwithstanding any help offered by others: You know, . . . I read the briefs to tried to figure out who was right and then decide[d] the cases. It . . . didn’t seem to me that you needed to be told much 286 about it. . . . And [as to] how to write an opinion, . . . I learned very quickly that’s a very personal, individual thing . . . . And in terms of deciding cases, . . . I don’t know what they can tell you . . . . That’s something you develop or learn, but you do it for yourself (J-16, 3-4). Overall, one of the biggest contrasts between the attitudes about intra-court discussion summarized in Chapter Five and those summarized here is the level of respect for other judges. Formalist and Good-Faith attitudes tend to include a certain amount of goodwill toward other judges – an assumption by some judges that all the other judges are just as reasonable as themselves. By contrast, judges with a more cynical approach tend to be skeptical of the reasonability or good faith of others. For one state intermediate judge, most of his skepticism is directed at the state Supreme Court: What I’ve also become more interested and aware of . . . is . . . the State Supreme Court. Being subject to their review, we spend a lot of time trying to figure out their cases and trying to derive useful, useable rules from their cases. And I’ve become much more cynical in the last ten years about the Supreme Court . . . . As I’ve seen personnel come and go . . . I have seen shifting approaches to the construction of statutes, to the construction of the Constitution, in ways that make me just a little skeptical about the extent to which neutral principles are deciding the really hard cases (J-3, 8). One federal circuit judge is perhaps even more skeptical of the decision making of the U.S. Supreme Court because of his perception that they do not pay enough attention to details: [I]t’s happened to me and . . . to my colleagues where the [Supreme Court] clearly didn’t read the record and they’re reversing based on a set of assumed facts . . . taken out of briefs. Nobody took the care to go back and look at the record (J-14, 17-18). 287 A state intermediate judge is equally skeptical of the U.S. Supreme Court, citing its tendency toward political decisions in hard cases: “It’s just obvious. You can’t convince me that they’re not deciding cases politically” (J-10, 14) As he explains further, “[w]henever you get a court where you can predict within one or two justices how everything’s gonna work,” you know it has to be politically motivated (ibid.). For some state intermediate judges, the same level of skepticism is extended to the lower federal courts. For example, when discussing how those courts interpreted a major U.S. Supreme Court sentencing decision, one insists that they all “got it entirely wrong. They just missed it. They missed it completely” (J-7, 18). Beyond carelessness, however, there is also a perception of political bias: [L]et’s just take [one] Circuit Court of Appeals: There’s a number of justices . . . there that . . . not only are overt in their view of life and their image, but they write and . . . speak and blow their brains out about their view of the world . . . . (J-19, 11-12). Closer to home, some judges are similarly skeptical of the motives of judges on their own courts. According to one federal circuit judge, “I have colleagues . . . sometimes you read about ‘em in the paper, who are not shy at all deciding a novel question in a way that fits in with their [political] views” (J-20, 14-15). Another federal judge on the same court agrees: I have seen cases where judges have taken a position I think that is quite contrary to the position that they think is the correct one. . . . . I have seen certain [cases] where I think the judges are just really moving it the way they thought it ought to come out, and then going off in search of a rationale that would support that (J-22, 16). 288 The same is true of one state intermediate judge, who notes that “[t]here are some judges who will come to a case with prejudices, with biases, with agendas” (J-7, 5). More specifically, another state intermediate judge recalls a panel on his court where political divisions were particularly strong: [A]t least for awhile there was a very liberal justice and . . . two very conservative justices . . . and they just didn’t agree . . . . And there [were] a lot of dissents at one point in time coming out of that division. I wouldn’t be surprised if . . . 25-30% of their public cases involved a dissent. It’s just that they were . . . far apart philosophically (J-8, 20). Collectively, these community influences – stretching back to legal practice experiences and continuing through contemporary judicial experiences – seem to have a kind of cynical socializing effect on some judges. That is, perhaps because of these experiences, some judges become overtly cynical about the unprincipled nature of the appellate decision-making process. First, at a general level, some judges agree with many outside critics that the personal background and values of judges provide the best explanation of some decisions. As one federal circuit judge summarizes: “[A]t least in my experience, [if you’ve] been an advocate for a particular group of clients [you have] a tendency when you shift into your analytical judicial role,” to still be under the “influence of seeing your side of the argument and becoming more and more wedded to it” (J-14, 7-8). A state intermediate judge agrees that “we do bring in our backgrounds [and] . . . past experiences . . . .” As a result, “[t]he way we perceive things is all different and that’s more often than not what probably results [in our] differences” in deciding 289 cases (J-8, 21-22). For example, the same judge recalled, one colleague with a great deal of corporate experience “might perceive . . . a fact situation” in a business- related case in a “completely different” way than he does (ibid.). Similarly, minority judges might have a different view of police brutality cases (ibid.). The result, according to this judge’s unwieldy but insightful summary, is a judicial attitude that a judge’s “perception” of a case – based on their personal background – “is probably closer to reality than what reality is” (ibid.). This skepticism toward a judge’s ability to rise above his or her personal influences is echoed by other judges, who provide many examples of cases significantly affected by a judge’s personal background: Cases involving government benefits (J-11, 5-8); Domestic violence or stalking cases (J-11, 5-8); Cases involving encounters between individuals and police officers (J-11, 5-8); Cases involving the vacating of lower court decisions (J-13, 2-3); Cases involving educational budgeting or labor disputes (J-13, 3-4); Personal injury cases (J-13, 4-5); Cases involving punitive damages (J-23, 2); Summary judgment cases (J-13, 5-7); Cases where race or culture is a factor (J-17, 10-11; J-20, 4); and Cases involving same-sex marriage or homosexual rights (J-23, 2). 290 Second, some judges discuss the influence of personal background in a more specific way – by talking about a judge’s inability to rise above their pre-existing “worldview.” Here we can see a key difference between good-faith and cynical attitudes: whereas good-faith attitudes see “worldview” as a general influence to be minimized, cynical attitudes see “worldview” as the influence of specifically political values. When I ask one state intermediate judge whether “there's a political difference” in judging “between . . . liberals and conservatives” in hard cases, she immediately replies: “Oh, yeah. . . . There's the whole life experience there that's built together with ideology. . . .” (J-6, 31-33). While this difference is never a partisan one – in the sense that judges are not picking winners and losers based on political party affiliations – the judge’s ideology will inevitably affect the way they see and decide cases in a more general sense (ibid.). As a state Supreme Court justice explains further, “[o]n this court sometimes it’s hard to separate worldview from [ideological] agenda” (J-11, 2-3). For example, “if you believe that . . . capitalism is the savior of all mankind or that the labor movement is the greatest thing since sliced bread . . . [a]t some point [that] worldview shifts over into a policy . . .” (ibid.). Those judges with cynical attitudes, then, see ideological worldviews as creating inevitably political differences between judges in tough cases. One state Supreme Court justice insists that there is a “small percentage” of cases that would “come out differently” depending upon whether the judge is politically liberal or 291 conservative (J-13, 23). One federal circuit judge agrees that in these kinds of cases political ideologies “do in fact . . . influence one’s judicial decision-making because . . . there’s not . . . a clear answer” according to the law (J-14, 12). Examples of these kinds of cases include: state pension fund case, a free speech case, and a personal injury case (J-13, 23), as well as “harmless error” and “abuse of discretion” cases (J- 18, 1). Some judges with cynical attitudes on this subject focus on the predictable nature of certain judicial decisions, on the basis of ideology. For example, one federal circuit judge insists that ideology explains the decision making in almost all en banc cases: “I can almost predict . . . how [the case] is going to come out, when I see the . . . judges that are going to be there, and I think most of my colleagues would say the same thing” (J-20,18). The same is true on a state intermediate court, where one judge insists that “more than half” of the cases “are predictable” on the basis of the judges’ ideology, so that “[i]f I look[] at my panel, I have a pretty good idea what they're going to say” (J-6, 33-34). Third, beyond general background influences and political ideology, a final factor cynically identified as an almost inevitable effect is the effect of judicial elections on state judges. Many state judges mention the corrupting influence of elections on the decision-making process. For example, according to a judge on a state intermediate court, “[j]udges don't want to be perceived as soft on crime. . . . I think it's . . . a dangerous issue . . . when judges have to run for election and worry 292 about how . . . cases are going to be perceived by the electorate or . . . talk radio. . .” (J-6, 6-7; see also 43-44). Another judge on the same court acknowledges the community accountability built into judicial elections, but still insists that they have a corrosive effect on the process: [M]aybe . . . there’s nothing wrong with [elections] because ultimately we do answer to the public, but . . . there’s a tension there because if what judges are supposed to do is apply the law and, and the public doesn’t like what that [judge] did even though he or she applied the law, and they vote them out of office, what does that tell us? (J-8, 15-16). 2. Language Practices These cynical community attitudes and perceptions are reinforced by the attitudes of the judges toward the language of the law. The main distinctive quality of cynical language attitudes is an overall skepticism toward the notion that the available legal rules and principles are sufficient to resolve hard cases. In the words of one state intermediate judge, there are many situations appellate judges face where they are forced to throw up their hands and say, “so much for the law”: [T]here [are] some cases where it’s . . . tough because it’s a clear legal issue the answer to which is obscure for one reason or another, whether it’s interpreting a statute that everybody can look at and say, “this is ambiguous; what the hell does it mean?” And sometimes it’s a statute that is part of a larger statutory scheme which is something that you’ve got to get your arms around. And sometimes it’s a question where, clearly, different courts have come out differently on the same issue. So, you’ve got a nice cold question of law, and it’s relatively difficult. . . . All of the verbal formulations in the world don’t provide you with your answer . . . . So, you wrestle with it. . . . I mean, so much for law (J-5, 8-9). The problem, then, is primarily one involving the insufficiency of legal language. In the words of a federal circuit judge, “[i]t’s very difficult with words” (J-16, 6-7). 293 While “some people believe . . . that you look at the words of the [law] and find [the] answer,” others are sufficiently “sophisticated” to be skeptical of this idea. They “understand that the answer’s not that clear” (ibid.). In the hard cases where this is true, then, “who knows what the law is?” (ibid.). This makes the appellate judge’s job difficult, because – in spite of their training to find the correct legal answer – in some cases the “legal answer [is] never satisfactory” (J-15, 2-3). One common example cited by judges with cynical attitudes toward legal language is the problem of determining legislative intent. Sometimes, the legislature may intentionally leave some ambiguity to be resolved by the courts, but more often, one state Supreme Court justice insists, “there are honestly things that people haven’t” thought of (J-11, 16-17). When I ask the justice for an example of a situation where legislative intent is problematic, he describes what he calls “the hardest case that I can ever remember seeing,” involving an allegedly unlawful firing under the National Labor Relations Act. In this case, there were “two equally valid principles about seniority” and “affirmative action” to be found in the legislative history. In deciding “which one prevailed . . . there was no way to define a real tiebreaker” based on the available materials (ibid., 18-19). A state intermediate judge pointed to the systemic lack of clarity in state legislative history, which perhaps accounts for these kinds of tough calls: [W]hen you come out of law school, you talk about legislative history, [and] you’re thinking of federal [law] . . . and you have . . . shelves and shelves of books that have every possible form of legislative history and committee reports and summaries and all that. Well, in this state, we don’t have it. . . . 294 [A]t best, you have people who were either supporting or opposing the bill . . . . [Y]ou rarely have meaningful debates . . . . You may have comments in legislative hearings . . . [but] all that stuff is pretty . . . hit and miss (J-12, 7- 9). Whereas good-faith attitudes toward statutory interpretation focus on applying the established methodologies even if they do not provide clear guidance, cynical attitudes are more likely to agree with one judge’s sense of exasperation in these cases: “God knows what you do” (J-11, 16-17). Another common example of cynical attitudes toward the content of the law is some judges’ agreement with the extreme Realist proposition that the available law in hard cases offer an indeterminate choice between conflicting rules and principles. According to one state intermediate judge, “in the really hard cases . . . neutral principles just don’t do it — there aren’t any. . .” (J-3, 8-9). So, what does a judge do in these cases? “[W]hat you generally do . . . is you try to go back to some settled principles that people do recognize, and then draw logical propositions or analogies from those accepted principles” (ibid.). However, this process is not so principled as might appear at first glance, because “there is no law or principle that tells you which settled law or principle to start with. And the result can be different depending on which result or principle you start with” (ibid.). The major implication of these cynical attitudes is the Realist perception that, contrary to good-faith assumptions, there are no objectively right answers in difficult cases. Some judges are quite explicit about this Realist implication: In the words of one state Supreme Court justice, “[H]ere is the [law]. Does it mean anything until 295 we apply it in a particular case?” (J-13, 4). In the words of a state intermediate judge, “there is no such thing as ‘law as it is.’ Law is always developing” (J-18, 3). Indeed, when applying the law in the context of a particular case, the judge can sometimes use the available legal materials in a variety of different ways, which calls into question the notion that there is a uniquely correct right answer: [T]here are cases where you know you can decide it this way or that way . . . . I’m working on a case right now where . . . I’ve written four drafts. Each one of them has come out differently, or at least three of them got to the same result by different routes. . . . [S]o . . . that would . . . suggest . . . [that] there was not a clear right answer (J-13, 20). This view of law translates into a pragmatic view of law, where judges focus more on practical results than following the language of the law: “if you don’t believe in objective truth or correct decisions. You can believe there’s a correct decision . . . the decisions as more pragmatic” (J-13, 14-16). The result is sometimes reminiscent of rational choice accounts, which see legal rules and principles as linguistic tools that help create a framework of reasonable expectations: It’s a right answer, not because it is . . . objectively correct, . . . [W]e’re not final because we’re infallible. We’re infallible because we’re final. So, it’s the . . . right answer [but it’s not an objective truth. [T]here are many cases . . . where what the system needs is an answer . . . [Y]ou don’t need a right answer or a wrong answer. . . . Who cares? Nobody cares . . . . But you need to know what to do. And so I think a large function of the court is . . . [w]e decide disputes. And in many . . . cases, the social value of what we do is to resolve the dispute . . . . So, we come up with the best answers we can. . . . It has an . . . objective function just in providing an answer . . . . (J-13, 14-17). 296 The result of this cynical view of legal indeterminacy is a cynical view with regard to political decision making. Accoridng to one federal circuit judge, “it just may be that the law is so indeterminate . . . that there . . . really [isn’t] a principled position to make” (J-22, 19). This opens the door to political decisions. If a judge sees the law as indeterminate, then “there’s [often] a strong correlation” between political preferences and judicial decisions (ibid.). One state intermediate judge goes even further, claiming that “ambiguity in the law allows a judge to choose a preferred public policy” (J-18, 3). So, what are we to make of the reasoning and logic contained in judicial opinions? Some judges with cynical attitudes opine that judicial opinions may just be rationalizations for the judge’s pre-existing preferences. At a certain minimal level, one state intermediate judge insists, most judges have experienced cases where they used legal language as a cover for their own attempt to “do justice.” She uses a scene from the popular animated film Madagascar to make this point: Did you ever see that movie Madagascar, by any chance? . . . [D]o you remember the part where the penguins think they dug their way out [of the zoo], and they pop up and . . . [t]hey're talking to the zebra . . . And the lead penguin says, "You didn't see anything." Right? . . . That happens here all the time. I call it doing a Madagascar. . . . And I think courts do that with some frequency (J-6, 25-28). A federal circuit judge agrees that judges often use legal language to rationalize their preferred outcome: You know, I think half the time in a difficult case the judge doesn’t really know how he’s coming to the decision. They may believe they came to it one way but you really can get inside the head and psychoanalyze the judge, 297 you’re – when you writing opinions, . . . how you get there and why, I don’t know, sometimes on difficult cases, I’m not sure why because there are arguments on both sides. You could justify either one. . . . Why you come down on one side or the other, who knows? . . . And you always can give an explanation . . . but is that really why you did it . . . ? (J-16, 18). 3. Cynical Judicial Vices Together, these community influences and language practices create a social practice that undermines and erodes the ideal conception of the judicial role outlined in Chapter Three. First, cynical judicial attitudes are much less comfortable with the distinction – often posited by good-faith attitudes – between “judicial justice” and justice in a more political sense. For example, one federal circuit judge scoffs at the notion that judges have a “different role” than ordinary citizens and political activists. He insists that the only real difference between judges and others who may have a point of view about the Constitution is the amount of power they have. Beyond that, he says, “I don’t know quite what [it] means [to say] you have a different role” (J-16, 5-6). Like everyone else in the country, a “judge applies the Constitution the way he sees it” (ibid.). This kind of cynical view toward the ideal of “judicial justice” leads some judges to praise overtly activist decisions – where a court ignores or downplays the legal materials in order to reach a result that is otherwise desirable. For example, one state intermediate judge praises some decisions made by courts in his state that reached the “right” social or political result even though the existing law might not have technically allowed this result (J-8, 3). Another state intermediate judge agrees, 298 but goes even further, claiming that “real politics” means that we “have to remember that [courts] choose based on political values. That’s the judicial role” (J-24, 3). Second, cynical attitudes seem just as skeptical of the ideal that judges can be more impartial by minimizing their personal biases or preferences. For example, when I describe the common perception that judges should try and separate their personal preferences from their views about the law, one federal circuit judge is incredulous: “How can you? . . . You read everything in the context of your life. You can't pull them apart. . . . And to say you're doing that, is highly suspicious . . . . [Y]our values really do come into play” (J-17, 11-13). Third, cynical attitudes are skeptical of the virtue of “integrity” – the notion that judges should strive to be faithful to existing legal frameworks and should strive to make the law as logically coherent as possible. Some judges, for example, seem to have a cynical attitude about the need to pay attention to the legal details of a case. One state intermediate judge is proud of her ability to get right to the bottom line of how a case should be decided, without getting bogged down in the details of what the legal authorities have to say (J-6, 18-19). Moreover, other judges seem to go even further by explicitly ignoring the available legal rules. For example, one state Supreme Court justice positively recounts instances where his court has ignored a procedural rule in order to decide an issue that needs to be decided for one reason or another: “[A]s long as we’re here and we’ve gone to all the trouble, why not write [it] up” anyway (J-11, 12-13). More specifically, one state intermediate judge 299 favorably describes instances where the court simply ignores the rules on preservation of error and decides an issue that has not been briefed or argued below (J-12, 15). This cynical attitude toward available rules sometimes extends to the virtue of legal coherence. In other words, some judges seem to be unconcerned with whether the law makes sense. One federal circuit judge insists, “I don’t think I’ve ever thought about the clarity of the law” as a whole (J-16, 14-15). One state Supreme Court justice has certainly thought about it, but she disapproves of it as a judicial goal. She recalls a colleague who tried to make the law in various areas more coherent, exclaiming, “boy, did that not work!” Perhaps as a result, she reports, “[v]ery few of us [now] have that sense of” concern for coherence (J-4, 18- 19). Fourth, cynical attitudes are also skeptical of the notion of the virtue of “situation sense” or “legal vision.” That is, instead of seeing judicial instincts as primarily informed by knowledge of the law, some judges rely primarily upon their personal instincts to give them a level of comfort in the correctness of their decisions. According to a federal circuit judge, he gets a kind of a “hunch” or a “feeling” about the correct result, which is not primarily legal: J-16: . . . [Y]ou get . . . feelings [or a] hunch. [A]nd you’re not entirely rational. . . . [One result is] a little more comfortable . . . than the other . . . . JW: A sort of existential comfort level? J-16: Yes (J-16, 18-19). 300 One state intermediate judge goes further, claiming that his judicial instincts are based upon personal “values” and “moral convictions” (J-24, 3). “Who we are matters . . . . We’re not just analysts . . .” You need to “look at the world as a whole” so that the decision “coincide[s] with how the world really works” (ibid.). As an example of a situation where she chose personal instincts over what the law might have required, one state intermediate judge discusses “a rape case” where the “defendant couldn’t meet timeliness requirements” in filing his request for DNA testing, but he “still wanted DNA tests” (J-23, 3-4). In this case, the judge voted to allow the testing in spite of the untimely nature of the request. This kind of decision, she says, is based on “experience” and “intuition” (ibid.). A federal circuit judge discusses immigration cases as a situation where personal sympathy may dwarf strict adherence to the law: [W]e try to find loopholes or ways to ease the hard edge of the law in a particular case where there’s a lot of sympathy for . . . families being held together, not torn apart, [and] children not being separated from their parents. And we try to figure out some legal way to . . . improve the situation from our point of view (J-15, 7-8). Another intermediate judge insists that most of her instincts are not “about equity or sympathy” but rather about “what the law must be” (J-6, 14-15). Nevertheless, she recounts a major case involving application of a contractual immunity provision in a situation where immunity would have worked a major injustice to weaker parties. In this case, the controlling precedent seemed to counsel total immunity, but her instincts told her that that result “just couldn’t be right” 301 (ibid., 15-16). She “could not say that case was wrong,” so she “distinguished it,” admitting that, “in a way I wasn't following that precedent” (ibid., 15-18). Reflecting on that experience, she recalls that her instincts were not primarily legal: “I knew it right away . . . . The law can't give you that” (ibid.). Not that she was actively ignoring the law: “I read the cases, too. But I'm saying that . . . the answer isn't always in the books” (ibid.). Recalling other judges who might doubt that this kind of instinctive decision making is a legitimate part of the judicial role, she confidently exclaims: “Of course you can do it! [D]o you need to find in a book that it says you can do that? [T]here's also a kind of judging by your own book” (ibid.). However, what distinguishes the cynical attitude toward the use of personal instincts from a thoroughly disrespectful, rogue attitude toward the law is the overall level of anguish and discomfort these judges often feel in making these kinds of decisions. In short, they know that they are supposed to ignore their personal instincts and follow the law, but it is often difficult to separate legal from personal instincts. One state Supreme Court justice discusses this kind of anguish: [T]here are the really hard cases . . . the delicate constitutional issues that . . . have . . . compelling arguments and ramifications, and sometimes not . . . clear answers. . . . I can think of a couple of different things that go on in those cases. I guess that’s why I’m bothered, because sometimes you only find one answer, and you don’t like it . . . but it’s that mushy kind of law, not like statutes. It’s mushier. . . . And those are hard, because I think you have to keep taking out your discomfort, if you’re resisting . . . the result, and figure out what that discomfort is about, and if it’s just your personal resistance, then, you know, it becomes . . . sort of the moral obligation . . . to put that in its right place and still push through. And then there are other cases where [personal instincts] may even tell you something about the law, 302 and I don’t know how to distinguish those two, but it’s that little judging type stuff, as mushy as it is (J-24, 30-31). Thus, many judges with cynical attitudes toward the value of completely subordinating their personal instincts to the law still feel obligated to balance the personal and the legal. As one state intermediate judge describes, the anguish created by disagreement with the law sometimes pushes judges to be more careful, knowing they may be on shaky ground: “[W]hen you run into that situation [where you think] ‘this can’t be right; it’s gotta be this [other] way,’ it compels you to look more carefully at the situation . . . . [You] give it a harder look.” (J-5, 12). In the end, “it may come out that way, but [you’re] going to be more careful . . .” (ibid.). A state intermediate judge summarizes her decision-making methodology in such cases in a way that emphasizes the combination of personal and legal instincts: One: Go through the decision-making process I’ve been taught . . . – apply the law to the facts; Two: Ask “does that result make sense?” which is a practical determination; and Three: Ask ‘is this result manifestly unjust?’ Are there extraordinary circumstances that would justify a departure [from the law]? (J-23, 3-4). Thus, judges with merely cynical – as opposed to rogue – attitudes tend to think about instances where their personal values trump legal values as inevitable concessions to reality. They often feel guilty for deviating from what the law requires, but also feel that they cannot help themselves. One state intermediate judge is particular reflective about this phenomenon: We got into a profession that was designed to be formalistic in some ways, but we’re humans, and we’re practical, and the nature of an issue, the nature 303 of the consequences, whatever it is, begins to sort of tease out our practical side . . . . And so it lets the other things come into play . . .” (J-25, 38). Moreover, judges with these attitudes tend to see other judges who claim to be good-faith or formalistic followers of the law as self-delusional or insufficiently sophisticated. As one state intermediate judge puts it: “Many judges persist in the certainty that ‘I’m not deluding myself’” (J-24, 1; see also J-15, 8; J-6, 29-30). A federal circuit judge with particularly cynical attitudes uses even stronger language to describe judges who claim to be following law rather than personal instincts: “I think they’ve been brainwashed and indoctrinated [by the] official party line and . . . I’m sure they believe it. . . . They think they’re just applying the law the way they see it (J-16, 16-17). Indeed, some judges even have trouble deciding whether they are deluding themselves about such cases, like one state Supreme Court justice, who says: I have to figure out, “Okay. What’s my motivation for doing that?” Simply because I think it’s a great benefit? I hope not. . . . I never know if I’m making up excuses just to get where I want to end [up] anyway (J-11, 10). The social practice of judging that grows out of the relationship between the cynical community, language, and virtue attitudes described in this chapter is summarized below in Figure Seven: 304 Figure 7: Cynical Social Practice Community Language Virtue Lack of preparation Alienation Training to see law as malleable “So Much for the Law” Skepticism toward right answers The “Madagascar Effect” “Who Knows?” 305 B. Rogue Judging Whereas judges with cynical attitudes may agonize over their decision to follow personal preferences rather than law, and may sometimes be unsure of their own motivations, judges with rogue attitudes are very straight-forward about the primacy of their non-legal motivations, seeing this primacy as a necessary and beneficial part of the process. Fortunately for the rule of law, however, this judicial type is the one least supported by the data. Only one judge consciously identified with an Attitudinalist or overtly political role for judges. While others made rogue statements here and there during the interviews, only a very tiny percentage of the coded data (4%) is devoted to these statements. 1. Community Influences Whereas some judges learn from their upbringing, education, or work that the law is fairly manipulable, others learn to have an overtly instrumental view of law – seeing it as a mere tool to accomplish desired social or political ends. For example, one federal circuit judge recalls her early work with under-privileged children and remembers constantly running up against legal obstacles to social and economic inequality. Eventually, this made her interested in the law, because it would give her the “power to bring about change. . . . I wanted things to change. And didn't see where it was possible unless you had some kind of legal referee” overseeing it” (J- 17, 1). One of her colleagues identifies law school as providing a similar experience for him, and he is quite explicit about seeing the law as a mere instrument for social 306 change: “I think in law school I learned that law was not an end but a means to get there” (J-16, 1). Perhaps as a result of these early personal and professional experiences, judges with cynical attitudes tend to report overtly political legal career paths on the way to the bench. According to a federal circuit judge, there is a simple political logic that explains how judges from each end of the political spectrum reach this pinnacle of their careers: [B]y the time people are out of law school, they have a general philosophy of . . . law and the Constitution that they’ve lived with . . . . [I]f they’re conservative then they go to the Federalist Society and they go through a whole experience in life that leads them to a particular view. If they’re liberals, they go into a different career path and end up with a different attitude about the law, the federal government, and all those things. But I doubt that too many people form those attitudes after they become judges (J- 16, 7-8). One part of this political-judicial career path is often a clerkship with a judge with a conservative or liberal reputation. One state intermediate judge recalls his clerkship with a state Supreme Court justice with a particularly liberal “global vision” of law and politics. As a clerk, the judge remembers asking his boss lots of questions about how to interpret the law in difficult cases. Finally, it got to the point where the justice got more and more irritated and the following exchange ensued: Justice: “Do you like the answers you get this way?” Clerk: “No.” Justice: “Then, why do it?” Clerk: “I thought that’s what being a judge was about?” Justice: “No, your job is to figure out why you’re right” (J-24, 2). 307 One state intermediate judge describes how the appointment or selection process continues this overtly political trajectory by focusing more on politics than legal experience or merit: I’d love to tell you that it’s a merit based process . . . But the reality is, regardless of your merit, it require[s] political opportunity even for appointment or election or whatever and we will find people in here that not only are biased, but will exercise that bias with their vigor. They’ll campaign on that bias . . . . I [have] seen . . . judges [engaging in] utterly obscene behavior [such as] stating their view of the world and how the world ought to be changed to the point of their view (J-19, 2-3; see also J-20, 17-18). Once they get appointed or elected to the bench, judges with these cynical community experiences often notice, and may be influenced by, other court personnel who have an overtly instrumental view of law. For example, law clerks “tend to have less constraints on the degree to which they push their preferred outcome” (J-10, 5). Other judges might also exert some pressure toward instrumentalism. According to one state intermediate judge, “some will write for a result [in a] . . . pretty . . . perilous [way, in terms of] how they look at facts or how they’re willing to read or use cases” (J-14, 8). For example, another state intermediate judge recalls instances where other judges are wildly inconsistent in their application of the law, depending on the desired outcome, or even overtly results-oriented: I have one colleague who . . . will sometimes say, “Well, we have to defer to the finder of fact . . . .” [And then, in the] same situation . . . where the finder of fact didn't go the way this judge wanted, [he’ll say], “Well, never mind what the trial court said.”. . . And then another judge . . . said, “Well, I decide how I think it should come out, and then I figure out how to get there.” . . . It sounded like, “I want to do justice, and I figure out how” (J-6, 24-46). 308 Picking up on this same theme, a state Supreme Court justice refers to his results- oriented colleagues: “I think there are some people on my court . . . who the things they don’t like they find unconstitutional. And the things that they do like somehow are okay” (J-11, 4). A federal circuit judge recalls a colleague being asked the following question: “Suppose you had a case where there was a decision of the Supreme Court of the United States squarely in point, but you felt that the result would be very bad. What would you do then?” (J-20, 17-18). He remembers his colleague answering in decidedly rogue fashion: “I’d find some way to get around it” (ibid.). Finally, some judges provide evidence of equally instrumental attitudes toward other members of the political community – namely, the legislative and executive branches. For example, one particularly liberal federal circuit judge recalls an instance when a conservative Supreme Court Justice seemed to deviate from conservative judicial principles by broadly interpreting an administrative regulation in order to uphold the EEOC’s denial of a disabled person’s claim of discrimination. The circuit judge generalizes from this example to support his conclusion that: [T]he use of . . . principles [of deference] is not all that consistent. So how much deference do you give to the administrative agency? . . . [Y]ou can look for a way to give it deference . . . [W]hen you want to . . . you can and when you don’t, you don’t have to . . . (J-16, 12-13). 309 2. Language Practices There is support in the data for two kinds of rogue attitudes toward legal language. First, in contrast to other attitudes, which see legal interpretation as politically malleable but still susceptible to formalist or good-faith logic, some judges with cynical attitudes point to the overtly political nature of legal interpretation. According to one federal circuit judge, conservatives tend to treat legal rules “like God” and have “no flexibility” in interpreting them. On the other hand, liberals “think that there are exceptions to most rules and those rules have to be read reasonably, and we try to find a way that leads to a” good result (J-16, 11). When I follow up by asking whether he is “talking about result orientation in terms of getting the right results” or whether he is just talking about a particular methodology in interpreting rules, the judge replies: “It’s both. Usually, people who read rules expansively are more interested in getting the right results” (J-16, 11). This particular judge thinks that the same kinds of overtly political interpretations are engaged in on both ends of the political spectrum, primarily because of the open- ended nature of the available legal language: I think that both sides . . . do the same thing . . . . [They] find[] things that tend to support what [they] believe[] to start with and what [their] values are. But you take language that’s not so clear and you’re bringing values to it one way or the other and I don’t think that liberals are much different than the conservatives other than that their values are different (J-16, 8). Second, because of the overtly political nature of legal interpretation, judges with cynical attitudes tend to see the language of judicial opinions as rank 310 rationalizations, designed to cover up the exercise of political discretion. The same federal circuit judge quoted above describes his opinion-writing process as follows: “when you’re writing opinions, it’s your rationalization. . . . [It] describes how you justify it (J-16, 18). A state intermediate judge with a rogue kind of decision-making style has a more round-about way of reaching the same conclusion. He points out that other attorneys and judges have a “different way” of proceeding, which is more “linear, logical, and predictable” in terms of using the existing law to reach a decision. He appreciates this more good-faith legal process, but mainly because it can help him in “translating” his decision “into legal terminology,” making the answer “legitimate” through the “shared acceptance” of the legal community (J-24, 2). Even though “[b]right people can use . . . law to reach whatever results they want,” legal terminology helps judges articulate their decisions “in a certain way” that is more acceptable ibid.). 3. Rogue Judicial Vices Together, these community influences and language practices create a social practice that further undercuts and erodes the ideal conception of the judicial role outlined in Chapter Three. Indeed, to the contrary, this variety of social practice appears to foster and reinforce judicial vices, such as partiality, an adversarial decision-making style, and lack of legal integrity or situation sense. First, judges with rogue attitudes toward the judicial role reject the notion that judges should strive to be neutral and impartial. One federal circuit judge rejects this 311 role in a particularly vehement manner, as illustrated by the following short exchange: JW: So you would completely disagree with [the] metaphor of the judge as umpire? J-16: Oh, that’s horseshit . . . . (J-16, 8-9). Instead of striving for an impartial role, some judges see themselves primarily as advocates for a particular legal, social, or political point of view. For example, when I ask the federal judge quoted above whether he had the “experience of . . . dissonance” between his “experience as a litigator” versus his “experience as a judge,” he quickly replies: “No. . . . I mean certainly it’s a different job but it wasn’t any different attitude towards the law” (ibid., 3). This results in acceptance of the political nature of judicial decision making in a variety of cases: [In] contract cases, tort cases, Social Security cases, every kind of case . . . there’s a big difference between whether you’re a liberal or a conservative. And if you get three liberals on a panel, it’s likely to go one way and [with] three conservatives, it’s likely to go another way, in at least half of the cases (ibid., 11). But the main difference between cynical and rogue attitudes toward impartiality is the difference between acceptance and praise for this political role. This kind of praise is amply illustrated by the following comments from the same federal judge: [C]onservative Republican presidents appoint conservative Republican judges and you would hope that a liberal Democratic president, if there ever were one, would appoint liberal Democrats because they would share that view . . . The day may come again . . . (ibid., 7-8). Second, judges with rogue attitudes also reject the virtue of judicial “integrity.” Rather than striving to subordinate their personal or political preferences 312 to their best interpretation of the available legal rules, they tend to do the opposite: subordinating their good-faith view of the law to their personal or political preferences. One state intermediate judge is particularly reflective about his method for reversing this polarity. He insists that a judge should “survey the world broadly,” taking in a “vast, potential body of information,” including history, societal relations, and formal logic. At this stage, the judge must “think about everything,” and “put it all into play,” accounting for all the possible interactions between things. If a judge knows how to do this, he claims, he will know “the answer” without having to read the lower court opinion, the precedents, or the statutes. His goal, in dialogue with other judges, will be to get them to come up with that same answer. He is particularly adamant about this proselytizing role in getting other judges to agree his views: If I’ve figured out what the answer is, it’s highly possible that’s the answer we’ll all realize eventually. The court’s job is to find out why I’m right. . . . [T]hat’s the goal. . . . It’s like looking at the forest without caring about all the trees. I don’t have to read all the statutes or laws in order to know the right answer. What I need, instead, is a global vision of how the world works – an “unexamined, gut-level, initial impression. . . . I start at the end and work backwards (J-24, 1-2). One federal judge provides a vivid example of this process at work in a major Establishment Clause case. When I ask him about his decision-making process in this case, he begins by talking about how he has “always been a firm believer” in a particular “separationist” view of the Establishment Clause because of his personal background as a “protestant free-thinker.” He also recalls his own antipathy to some 313 common examples of civic religion, including the words “In God We Trust” on coins. “So,” he says, “I came to that case with . . . that in my . . . cultural inventory.” As a result, in characterizing his decision in this one particular case, he concedes that “I probably did let my ingrained” beliefs dictate the result.” Not that he didn’t research the relevant legal authorities. To the contrary, he recalls that he “read every case in the country on the subject,” including those that decided the issue the other way. However, he recalls, he “couldn’t buy” their logic because of his own upbringing and personal beliefs (J-15, 17-19). Overall, the primary judicial vice engaged in by judges with rogue attitudes is the vice of result-orientation. One federal circuit judge is quite conscious and above- board that this is how he sees the judicial role: JW: The conclusion that . . . [some] scholars draw from [their research] . . . is that the way that we normally think about judges . . . [as] people who are fair [and] . . . objective, . . . is a myth and that it should really be identified and discarded as a myth . . . . [They claim] that you really do have judges that are very much results oriented, . . . [who] have a stake in deciding cases a certain way . . . Does that sort of jive with what you’re saying . . . ? J-16: Well . . . if you’re talking about cases with social significance, yeah, absolutely (J-16, 16). The social practice resulting from the relationship between the Rogue community, language, and virtue attitudes described in this chapter is summarized below in Figure Eight: 314 Figure 8: Rogue Social Practice Community Language Vice Training to see law as instrumental Perceptions of instrumentalism by other judges. “Political” Interpretations Opinions as rationalizations Result-oriented 315 C. Conclusion: The Rule-of-Law Implications of Cynical and Rogue Judging The two kinds of attitudes summarized in this chapter account for only a small portion of the data. The numbers of pages of coded data devoted to these attitudes are summarized below in Table Six: Table 6: Summary of Coded Data Pages (Cynical & Rogue) Cynical (Code 3) Rogue (Code 4) Community (Code “C”) 56 11 Language (Code “L”) 16 2 Virtue (Code “V”) 24 7 Totals: 96 20 Percentages: (of 481 total pgs.) 20% 4% Overall, then, as summarized below in Figure Nine, Cynical and Rogue attitudes account for less than ¼ (24%) of the coded data: 316 Figure 9: Cynical and Good-Faith Attitudes These statistics generally support the position of Rule-of-Law Skepticism outlined in the Introduction and undercut the post-formalist version of the rule of law sketched in Chapter One. Specifically, it is clear that there are some judges in this sample who do not appear to have internalized the proper attitude of fidelity toward law. Whereas those with Good-Faith attitudes acknowledge the gaps, ambiguities, and general indeterminacy of the law in hard cases but nevertheless do their best to follow it, those with Cynical attitudes seem to throw up their hands in despair. They appear to take a kind of agnostic attitude toward the law, not seeing it as sufficiently worthy of their loyalty or fidelity. Those with Rogue attitudes go even further. If Cynical (20%) Rogue (4%) Other (76%) 317 Cynical attitudes are agnostic toward law, Rogue attitudes are atheistic. Judges with these attitudes see their own personal, social, and political preferences as the only game in town. They not only scoff at the notion – summarized at the end of Chapter Five – that, even with all its faults, the law is bigger and more significant than their own thoughts and beliefs; they explicitly reject it. Moreover, it is also somewhat clear that these Cynical and Rogue attitudes flow out of an alternative social practice than the attitudes described in Chapter Five. The judge’s early community experiences – from childhood all the way through law school, clerkships, and the practice of law – socialize these judges to see the law as either inherently malleable or positively instrumental in the pursuit of extra-legal goals. This socialization is further reinforced by the judicial community once judges take the bench, as they perceive other judges acting in Cynical or Rogue manner. These community experiences are reenacted and strengthened by the skeptical or rationalizing way in which these judges think about and use legal language. Finally, rather than socially constructing the rule-of-law virtues sketched in Chapter Three, these community and language practices socially construct their opposite: the judicial vices of partiality, lack of integrity, and lack of legal vision. Rather than feeling ethically obligated to follow legal rules and principles in a formalistic or good-faith way, judges with Cynical and Rogue attitudes feel a sense of either despair or ethical freedom to choose their preferred outcome in a result-oriented way. 318 This kind of social practice clearly undermines the rule of law, whether conceived of in its formalist or post-formalist guises. 319 CONCLUSION: A “GOVERNMENT OF LAWS” OR A “GOVERNMENT OF WORDS”? A. Summing Up The arguments of rule-of-law skeptics, including Crits and Attitudinalists, are based on the faulty assumption that the rule of law requires judges to be externally constrained by objective rules and principles. As I have endeavored to show in this dissertation, judicial decisions can still be consistent with the rule of law – even if rules and principles have no objective, transcendent meaning – so long as judges appear to be sincerely motivated by the values of neutrality, fairness, and even- handedness. However, the arguments of legalists are also flawed because they fail to offer sustained and rigorous alternative claims about what the rule of law requires, and because they fail to offer the right kind of internal evidence of judicial motivations. Thus, in this dissertation, I have also offered a “Social Practice” model of rule-of-law judging, designed to isolate those specific community, language, and virtue practices that help to socially construct the rule of law within judicial institutions. I have also pursued a “Depth Hermeneutic” research program that is more likely to uncover evidence of judicial motivations consistent with the “Social Practice” model. By probing Formalist, Good-Faith, Cynical, and Rogue judicial attitudes toward community, toward legal language, and toward judicial virtue, we come about as close as we can to discovering the inner workings of the rule of law. 320 So, what does all the data presented in the last two chapters add up to? How does it help us understand whether or not the rule of law is upheld by judicial institutions? As summarized below in Table Seven and Figure Ten, the evidence of Formalist and Good-Faith judging accounts for the overwhelming majority of the words use by judges in my sample to describe their own thoughts and actions. Table 7: Summary of Coded Data Pages (All Types) Formalist (Code 1) Good Faith (Code 2) Cynical (Code 3) Rogue (Code 4) Community (Code “C”) 28 139 56 11 Language (Code “L”) 19 49 16 2 Virtue (Code “V”) 29 101 24 7 Totals: 76 289 96 20 Percentages: (of 481 total pgs.) 16% 60% 20% 4% Figure 10: Summary of All Attitude Types Formalist (16%) Good Faith (60%) Cynical (20%) Rogue (4%) 321 What are we to make of this in light of the debate over judging and the rule of law? First, it provides some good illustrations to support rule-of-law skepticism, even given the reformulation of the rule of law accomplished in this dissertation. That is, some judges appear not to have internalized the values and attitudes appropriate to the post-formalist version of the rule outlined in Chapter One. Rather than being socialized by the legal-judicial community to approach the law with an attitude of humble subservience, judges with Cynical and Rogue attitudes are taught to see the law as inherently malleable or even as instrumental for the accomplishment of non-legal goals. Further, rather than having their minds deeply constituted by the language of the law, they come to see legal terminology, doctrine, and jargon as either hopelessly muddled or as just another tool to advance their own agenda. Finally, rather than having a strong sense of ethical duty to conform their actions to the cardinal virtue of “judicial justice,” judges with Cynical and Rogue attitudes routinely either doubt the possibility of living up to this moral standard or flout this standard by striving to decide cases in a result-oriented way. Regardless of the particular reasons why these attitudes prevail among certain judges, it is clear that these attitudes do not illustrate the kinds of mental habits, moral traditions, and customs of restraint expected in judicial institutions conforming to rule-of-law norms. Overall, then, these attitudes tend to confirm the rule-of-law skepticism of Crits and Attitudinalists. In other words, these attitudes tend to show that rule of law is a myth at best and a sham at worst. 322 Second, however, the overwhelming import of the data gathered in this dissertation is that these judges approach, or at least want to be seen as approaching, their role in the political and social system differently than most Crits and Attitudinalists. While many of the judges acknowledge the potential for political preferences seeping into the process – especially in hard cases where the law is ambiguous or indeterminate – most nevertheless claim to be motivated in these cases by their best understanding of what the law requires. Judges with Formalist or Good-Faith attitudes are socialized by the legal-judicial community to see the law as something to which they must either mechanically adhere or reasonably defer. Judges with these attitudes also appear to have minds and psyches deeply constituted by legal language that is perceived to be either clear and determinate or open to creative, but responsible, interpretation. Finally, these judges feel a quite strong ethical obligation to conform their actions to the cardinal virtue of “judicial justice” by attempting to act with impartiality, integrity, and legal vision. These attitudes appear to flow out of a particular social practice, including habits of order, moral traditions, and customs of restraint, which are consistent with rule of law. Even when the law is unclear or indeterminate, we can still trust the judicial decisions flowing out of this kind of social practice. Its trustworthiness, however, derives not from the external form of the legal words themselves. Rather, it derives from evidence that judges recognize their obligation to submit their independent judgment to an authority outside of their own personal or political 323 agendas. This is the socially accepted version of the rule of law most appropriate to judicial institutions. Just as we expect the judgment of legislators and executives to be submitted to their best understanding of the public good expressed through elections, and just as we expect the judgment of bureaucrats to be submitted to their best understanding of the enabling statute, we also expect the judgment of judges to be submitted to some authority (see Feeley and Rubin 1998, 207-08). Thus, the judge’s felt sense of obligation to their best understanding of law is precisely what identifies them as rule-of-law officials, and what distinguishes their particular rule- of-law actions from those of other political institutions. While this sort of internal, socially constructed constraint “may appear to be an insubstantial or unreliable way to protect freedom,” Feeley and Rubin are correct that, in the end, “there is really nothing else” (1998, 351). To this, I would only add that there is nothing else we should desire, because internal obligations may prove to have a depth and lasting impact that dwarfs that of clear and determinate external rules. Rules can be changed or interpreted in various and sundry ways. But – one would hope – an individual’s sense of moral duty motivates them at a much deeper level that is much more difficult to alter. B. Can We Trust the Words of Judges? But we are still left with the accusation leveled by some scholars – and even some cynical judges – that this is all self-delusion. Everyone wants to be seen in the 324 best possible light, and thus perhaps we should be especially skeptical that the words of judges accurately describe even their own motivations. This is a valid concern. Rationalization does indeed present a problem for researchers interested in the “real” motivation for judicial decisions. Of course, judges – like all other human beings (including social scientists) – possess a great tendency toward self-deception. However, not all rationalizations – or rationalizers, for that matter -- are created equal. In some cases, it may be well nigh impossible to tell whether or not a person’s reasons for their own actions are trustworthy. For example, who can tell whether my public prediction that the Dodgers will win the pennant this year is motivated by my objective assessment of their chances or by my lifelong loyalty to the team? For that matter, who cares about my motivation for such a prediction? By contrast, my motivation might matter more if I was actually the Dodgers’ General Manager. In this case, I might be forgiven a few innocent, sincere rationalizations about my assessment of the team’s chances. However, if I engage in a recognizable pattern of insincerity in my professional judgments – that is, if I consistently make predictions and judgments about trades and other decisions based only on my personal likes and dislikes – then I should not be surprised to be looking for other employment at the end of the season. I would submit that judges are much closer to the latter position than the former. Therefore, we ignore their rationalizations at our own peril. They have a professional obligation to uphold some of our most precious ideals and values. If 325 judges can be unmasked as consistently insincere rationalizers – that is, if they intentionally use the law as a cover for their own political preferences, we would be justified in publicly condemning them as unworthy of their oaths. On the other hand, if judges sincerely believe in the legal reasons for the decisions they make, they may still be fulfilling their professional and societal obligations even if other judges might decide the case differently. Of course, just as in any other human endeavor, it is impossible to be absolutely certain whether the reasons judges give for their decisions are sincere. The best we can do (as with all social science data) is make probabilistic assessments about the relative trustworthiness of what judges say. If they claimed in every case to be motivated by Good-Faith or Formalist attitudes, this would be a sign of false consciousness at best and outright lying at worst. But most of the judges interviewed for this dissertation are not that glib or unreflective. In fact, most are consistently willing to acknowledge the influence of their own social and political preferences in certain cases and on certain issues. If the common judicial claim to be acting in a way that is faithful to the law is really just a function of the all-too-human tendency toward self-deception, why would this tendency manifest itself in this inconsistent way? Moreover, we need not stop with the words of judges themselves. We can check their accounts against other more objective research, such as that produced by Attitudinalists, and try to decide which account is more credible and believable. 326 Indeed, this kind of healthy skepticism is one of our professional obligations as social scientists. However, we should not simply dismiss as inherently untrustworthy the explanations judges give for their own actions. This, it seems to me, would be to engage in our own social scientific brand of “motivated reasoning.” The charge of self-delusion or false consciousness, however, relates to a more technical problem – that of scientific validity. As J. Woodford Howard, Jr., recognized long ago in his own interviews, “we can never be sure that what judges think coincides with what they say or do” (1981, xxiii). At one level, however, this charge is not quite responsive to the research described in this dissertation. If the goal were to use judicial words as accurate descriptions of some objective reality existing independently from the words themselves, evidence that the words might not match the reality would be extremely problematic. However, as outlined in Chapters One through Four, this is not that kind of project. To the contrary, I am arguing that the rule of law of law is a socially constructed, intersubjective phenomenon. That is, it has no existence apart from the subjective attitudes of the judges themselves. Thus, to argue that the words judges use to describe their own activities do not meet some transcendent, objective test of accuracy is a non sequitur. At another level, however, the charge might be applied to this project more precisely by arguing that the words of judges might be inaccurate or insincere expressions of their own thoughts and motivations. This seems to be Henry Glick’s point when he acknowledges that judges — perhaps more than other elites — feel 327 the need to protect their institutions from external scrutiny and thus have good reasons to perpetuate certain myths about their jobs (1971, 17-18). This shows a healthy sense of realism about the nature of interview research. As realistic as this limit is, however, it is not unique to this brand of research. Whether one is using “hard” quantitative methods or “softer” qualitative methods, the search for a transcendent, objective perspective, which would yield perfectly valid results, must be abandoned as futile. The “Depth Hermeneutic” research summarized in this dissertation does not seek to objectively discover social facts in a value-free way, shorn of their human, contingent qualities. Rather, this research seeks to tease forth the intersubjective, value-laden, all-too-human aspects of a creative human enterprise. Michael McCann’s (1994) description of his own attitudes toward ethnographic research applies equally to this, much different, project: [J]ust as my framework insists that there is no essential reality of law to discover independent of multiple partially constitutive legal practices, so does it presume that there is no transcendent or impartial perspective for the analyst to assume while researching law in action. In other words, the cultural framework adopted here not only focuses study on the intersubjective dimensions of political activity, but it explicitly acknowledges that the research enterprise itself is inherently a partial, biased, ideologically constituted practice of meaning construction in which transcendent objectivity is impossible. (15-16). Given the impossibility of achieving such a transcendent perspective, or of finding pristine, value-free social facts, there are three choices one can make. First, one can “tighten the screws” by redoubling one’s efforts to apply formal methods of empirical analysis (ibid., 16). Second, one can fully embrace the socially 328 constructed, heterogenous nature of human data by abandoning all attempts at rigorous analysis in favor of more aesthetic and impressionistic accounts. Both of these first two options have opposite problems. The first choice preserves the rigorous tenets of social science, but at the expense of ignoring the presumed function of those tenets: to give voice to what social life is really like. The second choice abandons all rigor in order to more accurately give voice to social life, but at the expense of ignoring the mediating function that scientific methods serve in helping us to hold at least a portion of the world at arm’s length. In short, even if we can gain no grand transcendent perspective on the world, this does not mean that the world is entirely immanent to us. We constantly testify to some smaller form of transcendence in our constant desire to somehow represent the world to ourselves through science or art. This suggests a third choice for social research, which I have borrowed from McCann and Ewick and Silbey (1998). I have sought to follow in the footsteps of these brilliant scholars by refusing to totally abandon social scientific rigor, and choosing instead to simply “loosen the screws . . . so as to permit more flexible and responsive modes of study” (McCann 1994, 16). My approach thus abandons the attempt to understand judging in a completely transcendent, objective way, but does not abandon the more limited attempt to fairly represent, or give a voice to, the intersubjective social reality experienced by judges. To repeat Feeley and Rubin’s point in a slightly different context, such an approach “may appear to be an 329 insubstantial or unreliable way” of ascertaining the truth about judging, but “there is really nothing else” that would do the job better (1998, 351). Finally, to the extent that more formally inclined scholars are unhappy with this approach, there are other research tools described in the next section that might help allay such concerns. C. Where Do We Go From Here? 1. Recommendations for Policy Makers Regardless of the tenuous quality of current research, the debate over judging and the rule of law has some practical implications that should no longer be ignored by social science scholars. Most significantly, such scholars should pay much more attention to the intersection between their research about judicial decision making and the real-life decisions that need to be made by policy-makers charged with the task of vetting or selecting appellate judges. To the extent that our society is concerned about the rule of law – rather than merely using the courts to advance our own partisan or ideological agendas – we should be concerned about the character of our judges. Although more and different research needs to be done, as outlined in the next section, the research described in this dissertation can already help give us some ideas of what specific characteristics to look for in potential appellate judges. First, this research suggests that we should look for judges with an attitude of overall humility toward the available legal rules and principles. As demonstrated in the last chapter, there are some individuals who see the ambiguity or indeterminacy of the rules and principles as a license to simply follow their personal, social, or political preferences. On the other hand, many other individuals acknowledge that the law cannot provide clear and determinate answers in difficult cases, but they 330 nevertheless attempt to follow that law as far as it goes. Even if it cannot be objectively demonstrated, these individuals see the law as having a force and a power that demands their loyalty and fidelity. Evidence of either type of character might be found by analyzing speeches, articles, or past opinions. It might also be discovered by conducting interviews, like the ones done for this study, regarding the potential judge’s general attitudes toward the judicial role. What would distinguish these techniques from existing attempts to vet judicial candidates is the fact that it would focus less on specific court decisions or professional ethics and more on evidence of the judge’s background conceptions of law, politics, and judging. Second, and more specifically, we should look for particular community experiences that are more likely to socialize potential judges into this attitude of humility and deference. For example, some of the judges with Cynical or Rogue attitudes interviewed in Chapter Seven appeared to have experienced some amount of alienation from law school or legal practice. Others with prior judicial experience reported a certain amount of alienation from other judges – or at least a skepticism of those other judges’ motives. If detected, these could perhaps serve as signals that the potential judge may lack the necessary community socialization. Further, many of the judges with Good-Faith attitudes interviewed in Chapter Six claimed that they learned subordinate their personal preferences while working in some supervisory capacity in a District Attorney’s office, Attorney General’s office, or a state or federal Department of Justice. Others claimed that their experiences as legal academics did the same for them. Most with judicial experience claimed that court discussions helped them learn to do the same thing. These and other more obviously 331 identifiable background characteristics might serve as signals that the judges have been properly socialized into rule-of-law values. Third, we should pay attention to the language patterns of potential judges. Obviously, this is less useful when analyzing the words of judges who have some idea that they are judicial candidates. But careful analysis of preexisting speeches, interviews, articles, or other writings – perhaps even using a coding scheme like the one used for this dissertation – might help identify patterns of instrumental or non- instrumental uses of legal doctrine. It might also reveal how deeply the potential judge’s thought process has been constructed by the language and frameworks used in precedents, statutes, and other legal authorities. For example, when asked about a statutory construction issue, does the potential judge refer primarily to the established precedential or statutory methodologies for deciding such questions, or do they move in some other more creative direction? Finally, it might reveal the potential judge’s patterns of dealing with new or innovative legal issues, which the established rules and principles fail to address. For example, when asked about a case of first impression, does the potential judge automatically strike out in a new direction, or do they attempt to draw analogies from established law? Fourth, and finally, we should pay as much attention to judicial “virtue” as we do to judicial “ethics.” We would probably not select a judge who had no ethical compunctions about conflicts of interest or common appearances of impropriety. Likewise, we should not select judges who fail to feel a moral obligation to act according to the dictates of “judicial justice,” including impartiality, integrity, and legal vision or situation sense. As illustrated in this dissertation, these feelings of moral obligation can be teased out by a careful interviewer intent on gathering such 332 evidence. Asking judges how they see their role in relationship to political officials, in relationship to lower and higher courts, and in relationship to other judges can reveal a wealth of information on what moral obligations potential judges feel. However easy it may be to fake adherence to legal norms when deciding a case, it is much more difficult to pretend to have a moral duty to follow those norms. In trying to discern this, we can obviously ignore the self-serving statements of potential judges that they feel such duties. As illustrated in this dissertation, we can helpfully rely instead on indirect evidence of how a judge perceives actual situations that come up in the context of an in-depth interview. 2. Recommendations for Scholars Obviously, the research presented in this dissertation cannot be the final word on these or other questions. Indeed, one of my main goals is to begin a more robust discussion among social scientists and legal scholars about the relationship between American political institutions and the rule of law. There are several ways to advance this goal within the social science community. First, scholars should focus on improving the quality of the existing internal evidence of rule-of-law attitudes in a few different ways. Most obviously, we should apply the type of depth-hermeneutic approach used in this dissertation to other judges, especially U.S. Supreme Court Justices. This would further advance the debate between Attitudinalists and Legalists by uncovering more evidence of judicial attitudes, which may or may not uphold the rule of law. Further, we should use other research tools to supplement the ones used here. Most significantly, a proper ethnographic account of judicial decision making should include evidence of other aspects of the social practice of judging, including: interviews of non-judicial actors, such as attorneys appearing 333 before the judges, interviews of law clerks, observations of the judges’ interactions with clerks and other judges, review of successive opinion drafts, memos, and other internal documents, and review of published opinions. Finally, scholars adept at depth-hermeneutic or other ethnographic research should be able to explore the attitudes of other political officials, such as legislative, administrative, and executive officials, in order to explore how the rule of law works similarly or differently in other institutional space. Second, we should use a “triangulating” approach by supplementing depth- hermeneutic tools with other research tools. More quantitative scholars should be able to investigate whether there is any statistical correlation between certain legal practice experiences, such as working for a state or local prosecutor or state or federal Department of Justice, and the way judges decide certain cases. They should also be able to investigate whether any discernable “educative effect” is produced by prolonged exposure to the social pressures of intra-court collegiality. Other scholars should be able to discern whether the Formalist or Good-Faith attitudes of judges match up, in any discernable way, with their votes in certain kinds of cases. This kind of research may generate some helpful discussions about the extent of self- delusion or false-consciousness among judges, which would replace the currently ungrounded speculation on this issue. Third, as suggested by the foregoing, scholars should begin focusing on the dissonance between the way judges describe their experiences from the inside and the social scientific evidence describing the process from the outside. For example, even an attempt to compare the existing external evidence of the relationship between political ideology and judicial votes with the kind of internal evidence 334 produced in this dissertation should yield interesting results. Moreover, new attempts to explore and measure the level of false consciousness and self-delusion among judges might uncover some reasons for this phenomenon that have heretofore been overlooked or marginalized. Specifically, such research might uncover problematic aspects of legal education, legal practice, or judicial socialization that might be addressed. D. Whither the Rule of Law? The judicial comments presented in the previous two chapters illustrate the persuasiveness of the social practice model of the rule of law outlined in Chapter Three. As reformulated there, the rule of law does not require proof that judges are externally constrained by objective rules. Rather, it requires that they have the proper internal, subjective orientation toward the law. In a sense, then, Attitudinalists are correct to focus on judicial attitudes as the proper measure of whether the rule of law is being followed. But they are focused on the wrong attitudes. Instead of focusing on political-ideological attitudes, this dissertation argues that we should focus on attitudes of fidelity to authoritative legal norms and principles. According to post-positivist theories, individual attitudes naturally arise from settled social practices which consist of shared community conventions embedded in and acted out through language. Such practices naturally produce socially constructed virtues practiced by individual members, which are essential in maintaining and furthering the social practice. 335 When we listen to what the judges interviewed for this project say about their own practices, we find that their comments largely match this theory. They claim that their attitudes about law are largely formed through the deeply rooted community influences, such legal education and communication between judges; they claim that legal language is deeply influential, even when the text of the relevant rules and principles is indeterminate or ambiguous; And they claim to follow the traditional virtues associated with the judicial role, such as neutrality, practical wisdom, and creativity. Whether or not judges actually follow the law in a measurable way, the internalization of these values goes a long way toward showing that the rule of law is being followed. The judges discussed in this dissertation are publicly performing rule-of-law values; if they do so convincingly and coherently, we can still have confidence in their decisions, even if the judges are also acting politically. Given the ambiguity and indeterminacy of our foundational legal principles, it may not be possible for judges to follow the law in any measurable way. But they can still “do the right thing” by performing the proper rule-of-law role. This key rule-of-law function performed by individual judicial attitudes of fidelity toward law can perhaps be illustrated by a scene from the classic film, A Man for all Seasons. This film, based on a play by Robert Bolt, deals with the conflict between St. Thomas More and King Henry VIII over the schism between the Church of England and the Catholic Church. It contains the following dialogue between St. 336 Thomas More and one of his interlocutors about the nature of More’s feeling of religious obligation. The interlocutor does not understand this sense of obligation: “So you believe. And will you forfeit all you have . . . which includes the respect of your country, for a belief?” More answers in a way that identifies the subjective nature of his loyalty and fidelity to the Catholic Church, but that nevertheless insists on its overriding authority: “Because what matters is that I believe it, or rather, no. . . not that I believe it, but that I believe it.” The analogous sense of moral fidelity judges feel toward the law is derided by rule-of-law skeptics as a myth at best or a sham at worst. But the central claim of this dissertation is that such a sense of obligation is exactly what we should expect to see in an institution governed by the rule of law. In a social and scholarly context not wholly unlike our own, the Marxist scholar, E.P. Thompson, defended the rule of law against the attacks of those who sought to consign it to the ash-heap of history. While conceding that the rule of law often served as a mask for power and privilege, Thompson nevertheless praised its usefulness in holding the powerful accountable at least in their own minds. His words serve as a fitting reminder of what a remarkable human achievement the rule of law is, and how unwise it would be to continue to dismiss its relevance: We ought to expose the shams and inequities which maybe concealed beneath [the] law. But the rule of law itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all- intrusive claims, seems to me to be an unqualified human good. To deny or belittle this good is, in this dangerous century when the resources and pretensions of power continue to enlarge, a desperate error of intellectual 337 abstraction. More than this, it is a self-fulfilling error, which encourages us to give up the struggle against bad laws and class-bound procedures, and to disarm ourselves before power. It is to throw away a whole inheritance of struggle about law, and within the forms of law, whose continuity can never be fractured without bringing men and women into immediate danger. (1986, 135). In a liberal democracy, we strive to govern ourselves primarily with words, rather than bullets or tanks. As Thompson realized, such a system can still be brutal and oppressive, especially when the substance of the laws being applied by government officials is lacking in overall justice or fairness. In other words, if judges have Good-Faith attitudes toward applying unjust or unfair laws, the results will be tragic at best and evil at worst. However, this only means that the internal attitudes of judges are insufficient for the rule of law to prevail. Other governmental officials – such as legislative and executive officials – must also act out rule-of-law values within their unique institutional space in order for a liberal democracy as a whole to succeed. Although insufficient, however, the words of judges – and the underlying attitudes they illustrate – still play a necessary, vital role. The point of this dissertation, then, is to outline some specific ways we can ascertain whether judges are indeed playing that role. But social scientists and legal scholars have their own role to play. The words we use to discuss political institutions are not merely observational. We are not only scholars, but also citizens. Our words have (we hope) significant constitutive effects on the political realities we attempt to describe and analyze. Cynical scholarly words about judging and the rule of law may in fact contribute to dismissive societal attitudes about these things. Thus, perhaps the most 338 important goal of this dissertation is to foster a more productive style of scholarship that takes the rule of law seriously and honestly and rigorously investigates its existence. 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Harvie III. 1989. “The Role of Reason in the Rule of Law.” The University of Chicago 56: 779-809. Wittgenstein, Ludwig. 1969. On Certainty. New York: Harper and Row. ___. 1964. Blue and Brown Books New York: Harper and Row. ___. 1961. Tractatus Logico-Philosophicus. London: Routledge and Kegan Paul. ___. 1958. Philosophical Investigations. New York: MacMillan Co. 358 Appendix A: Recruiting E-mail/Letter Hi Justice _______: Our mutual friend, Judge _____, suggested that I contact you regarding some research I am doing. I am a former staff attorney at the U.S. District Court, and am currently a doctoral candidate at USC. I am writing my dissertation on appellate judicial decision making. As part of my research, I have been interviewing various judges on the state and federal bench in _____. Would you be willing to help me out by participating in such an interview? The interview consists of an informal conversation about your background, your thoughts about your role as a judge, and your reflections on how you decide cases. The interview would take place in your chambers (or some other place convenient to you). It would last approximately one hour, and would consist of an informal conversation about your background, your thoughts about your role as an appellate judge, and your reflections on how you decide difficult legal issues. Most judges I have previously interviewed have told me they enjoyed the conversation and that it helped them think more deeply about their decision-making process. Obviously, your participation is voluntary. The interviews are usually audio- taped. However, if you do not wish to be taped, you can still participate. Your name or identity will not be revealed in the dissertation, or in any related papers, articles, or presentations related to this project. Nor will your name or identity be revealed on the audio-tape, if you choose to allow taping. If you are willing to participate, just reply to this e-mail and we can then settle on a date and time that work best for you. I plan on being in the _____ area during the week of ______. If that week doesn't work, we can work out another day and time. If you are unavailable, or if you do not wish to be interviewed, I totally understand. However, if you would be willing to do me this favor, it would be a great help. Thank you for your time, Jason E. Whitehead Doctoral Candidate Department of Political Science University of Southern California 359 Appendix B: Total Sample Respondent # Court Level Year Appointed Appointing Party J-3 24 State Intermediate 1992 Democrat J-4 State Supreme 1998 Democrat J-5 State Intermediate 2002 Democrat J-6 State Intermediate 2003 Democrat J-7 State Intermediate 1989 Republican J-8 State Intermediate 1993 Republican J-9 State Intermediate 1999 Democrat J-10 State Intermediate 2001 Democrat J-11 State Supreme 2003 Democrat J-12 State Intermediate 1998 Democrat J-13 State Supreme 2001 Democrat J-14 Fed. Intermediate 1999 Democrat J-15 Fed. Intermediate 1969 Republican J-16 Fed. Intermediate 1980 Democrat J-17 Fed. Intermediate 1979 Democrat J-18 State Intermediate 2001 Democrat J-19 State Intermediate 1988 Republican J-20 Fed. Intermediate 1979 Democrat J-21 State Intermediate 2003 Democrat J-22 Fed. Intermediate 2003 Republican J-23 State Intermediate 1994 Republican J-24 State Intermediate 1994 Democrat J-25 State Intermediate 1997 Democrat J-26 State Supreme 1994 Republican 24 J-1 & J-2 are from a pilot study. 360 Appendix C: Interview Guide I. Background A. Length of Judicial Service B. Jobs before Becoming a Judge C. Prior Expectations About Judging vs. the Reality of Judging ***e.g., What expectations did you have about the judicial role before you became a judge? How well did the job match up to those expectations?*** D. Experience Relevant to Judicial Service (e.g., education, litigation experience, service on other courts, etc.) ***e.g., What experiences in your life best prepared you to serve as a judge? How exactly did those experiences prepare you to be a good judge?*** II. Role Orientation A. Societal/Institutional Expectations of Judges B. Transmission of Those Expectations III. Organizational Setting A. Internal: Relationships with other judges on this court B. External: Relationships with other courts and other institutions IV. Decision-Making Process A. Frequency of “Hard” vs “Easy Cases” B. Decisions in “Hard Cases” ***e.g., In your opinion, what percentage of your disagreement with other judges is based on political preferences (either yours or theirs)?*** ***e.g., How would you explain statistical evidence that seems to show a strong correlation between a judge’s political preferences and a judge’s decisions in hard cases? What are they missing that you think is important?*** C. Reaction to Theories of Judicial Decision Making (including formalism, realism, Dworkin, etc.) 361 Appendix D: Interview Codebook Overview. The coding should include two distinct phases. In the first phase, the subject’s responses are classified according to their subject matter – i.e., whether they seem to relate to: the legal-judicial community; language practices; or the judicial virtues. In the second phase, the responses within each of the above three groups are classified according to their general direction relative to the rule of law – i.e., whether they seem to indicate: formalist judging; good-faith judging; cynical judging; or rogue judging. The unit of analysis is the answer given by the subject, regardless of what question was asked. In other words, even in cases where it appears the subject is addressing a topic other than that raised by the question, the answer should be coded as a stand-alone statement. An answer may be comprised of several statements, even if the statements are separated by a minor question or a follow-up that does not alter the general train of thought. Phase One – Subject Matter Code “C” if the answer relates to any of the following: --the subject’s pre-judicial experiences of, or perceptions of, law or judging; --educational experiences related to law or judging (including, but not limited to law school); --the subject’s law-related job experience before becoming a judge; 362 Appendix D (Continued) --the subject’s experience adjusting to the role of judge (including but not limited to any judicial orientation sessions or conferences); --interaction with, or perception of, other judges during the subject’s judicial tenure, whether or not related to case-decision; --interaction with, or perception of, court staff during the subject’s judicial tenure (including but not limited to law clerks and secretaries); or --interaction with, or perception of, other legal elites during a subject’s judicial tenure (including but not limited to attorneys, law professors, or other scholars). Code “L” if the answer relates to any of the following: --the interpretation of language related to understanding or deciding a case (including but not limited to the interpretation of the factual record, the arguments made by the parties, and the meaning of statutes, precedents, or other authorities); --the indeterminacy, ambiguity, generality, or lack of clarity of legal language --the determinacy, specificity, or clarity of legal language; --freedom to interpret existing legal language in multiple ways; or --lack of freedom to interpret existing legal language in multiple ways. Code “V” if the answer relates to any of the following: --the value of being impartial; --the relationship between a judge’s personal opinions about an issue or party and the judge’s decision-making in a particular case; 363 Appendix D (Continued) --the relationship between the judicial role and other roles (including but not limited to the role of an adversary, legislator, or other type of judge); --the value of remaining faithful to, or deviating from, existing legal principles, rules, standards, frameworks, norms, or doctrines; --the need (or lack of need) to carefully study all the available legal or factual materials before making a decision; --the need (or lack of need) to feel a sense of psychological comfort in a decision; --the role of intuitions or hunches in making a decision; --the role of any of the following: courage, wisdom, intelligence, discernment, temperance, self-discipline, self-restraint, or personal ethics; or Code “X” if the answer seems to relate to some other topic not included above. Phase Two (Add these codes to the ones already applied in Phase One) Code “1” for formalist judging if the answer seems to indicate the mechanical following of the community, language, or virtue practice discussed; Code “2” for good-faith judging if the answer seems to indicate a respect for the community, language, or virtue practice discussed; Code “3” for cynical judging if the answer seems to indicate lack of respect for the community, language, or virtue practice discussed; 364 Appendix D (Continued) Code “4” for rogue judging if the answer seems to indicate a past or future flouting of the community, language, or virtue practice discussed; or Code “9” if it is impossible to tell whether the answer fits into any of the above categories.

Asset Metadata

Creator Whitehead, Jason E. (author)

Core Title A government of words: the social practice of judging in a rule-of-law system

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Political Science

Publication Date 04/16/2007

Defense Date 03/27/2007

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag Courts,Judges,judicial decision making,Jurisprudence,OAI-PMH Harvest

Language English

Advisor Gillman, Howard (committee chair), [illegible] (committee member)

Creator Email jwhitehe@usc.edu

Permanent Link (DOI) https://doi.org/10.25549/usctheses-m396

Unique identifier UC1443797

Identifier etd-Whitehead-20070416 (filename),usctheses-m40 (legacy collection record id),usctheses-c127-400926 (legacy record id),usctheses-m396 (legacy record id)

Legacy Identifier etd-Whitehead-20070416.pdf

Dmrecord 400926

Document Type Dissertation

Rights Whitehead, Jason E.

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Repository Name Libraries, University of Southern California

Repository Location Los Angeles, California

Repository Email uscdl@usc.edu

Abstract (if available)

Abstract The "Rule of Law" is a crucial liberal democratic norm. However, scholars disagree about whether American political institutions satisfy this norm. Those who study American courts, including Critical Legal Studies and Attitudinalist scholars, contend that judges flout the rule of law by making political decisions. By contrast, New Institutionalist scholars argue that judicial decisions are motivated by legal attitudes, but they have not offered any systematic defense against rule-of-law skepticism. Moreover, all these scholars rely too much on external evidence of judicial activities, which do not provide much insight into internal motivations and attitudes.