Styles of Judging: The Rhetoric and the Reality

by Stanley Fish

New York Times
June 14, 2010

The upcoming judiciary committee hearings on the nomination of Elena Kagan to be an associate justice of the Supreme Court will likely unfold under the shadow of Chief Justice John G. Roberts’ declaration (at his own hearing) that “judges are like umpires; umpires don’t make the rules, they apply them.” Kagan will probably be asked to pledge allegiance to this account of judging and repudiate its disreputable alternative — judges who make law, legislate from the bench and import their politics into precincts where they don’t belong.

In a new book, “Beyond the Formalist-Realist Divide: The Role of Politics in Judging,” Brian Z. Tamanaha first describes the opposition that has such a hold on the public’s imagination — on the one hand “self-applying legal rules,” on the other “judges pursuing their personal preferences beneath a veneer of legal rules” — and then debunks it. His argument is that although historians, legal theorists, political scientists and sometimes judges themselves have over time constructed a “standard chronicle” in which these two views of judging vie for supremacy, no one has ever been a genuine adherent of either: “No one thinks that law is autonomous and judging is mechanical deduction, and rare is the jurist who thinks that judges are engaged in the single minded pursuit of their personal preferences.”

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Do laws even matter today?

βy Jonathan Turley

USA Today
June 14, 2010

As soon as Arizona passed its recent immigration law, some reporters and commentators were quick to cast the story with the usual actors: "Tea Partiers," race activists, conservatives and liberals. Like our politics, much of our news media coverage has become a clash of caricatures — easily categorized groups with one-dimensional motives for mass consumption. Some commentary even suggested that supporters of the law are either open or closeted racists. Rep. Keith Ellison, D-Minn., recently called the law both "fascist" and "racist."

Though I am a critic of the Arizona law, I do not view its supporters in such one-dimensional terms. Indeed, I do not view the public response in purely immigration terms. Whether it is illegal immigration or the mortgage crisis or corporate bailouts, there seems to be a growing sense among many citizens that they are expected to play by the rules while others are exempt.

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A Good Day for Judicial Discretion

New York Times
Editorial
June 14, 2010

Equity is an elusive legal concept that occasionally allows some leeway in applying the rules of the law and is often unappreciated by judges who insist the law means only what it says. That was clear in 2008 when the United States Court of Appeals for the 11th Circuit refused to allow federal courts to consider a death-penalty conviction of Albert Holland because his lawyer had inexcusably let the filing deadline pass. Fortunately, seven members of the Supreme Court proved less rigid in their thinking on Monday and reversed that blinkered decision.

Mr. Holland, who was convicted of first-degree murder and is on Florida’s death row, continually asked his court-appointed lawyer about the paperwork deadlines and pressed him to keep all options of appeal open. But the lawyer barely communicated with his client and missed the filing deadline set by Congress in 1996.

In giving Mr. Holland a second chance to make his case, the Supreme Court acted in the highest legal tradition and demonstrated why society invests so much hope in the wisdom of justices — and not just their knowledge of legal principles. Writing for the court’s majority, Justice Stephen Breyer said that a hard and fast adherence to absolute legal rules could impose “the evils of archaic rigidity.”

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