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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