More judicial-hearing counterprogramming

Another tidbit from "Thinking Like a Lawyer," the Harvard University Press book I mentioned yesterday, by Frederick Schauer:

For some years now, political scientists have used sophisticated techniques of multiple regression to determine what really does influence case outcomes in the Supreme Court. Researchers have examined a range of factors and concluded that ideology, more than personal characteristics of the judge, legal variables of text and precedent, or anything else, is the leading predictor of Supreme Court outcomes.

This "should not be surprising," Schauer writes, because cases make it all the way to the Supreme Court "either because there is no law on the subject or because there are equally good legal arguments on both sides."

This observation has sometimes been reduced to the epigram "We are all Legal Realists now," but Schauer rejects that formulation, because it masks something important: Legal Realism, or the notion that there is no "right" answer to the most complex constitutional questions and therefore extra-legal considerations inevitably come into play, is what you might call a meta-theory. It may explain patterns in the results of cases, but judges (and law students) must still display mastery of the traditional concepts and special vocabulary of the law.

As a result, for example,"any student who thinks that a strong Realist perspective will be rewarded on law school examinations is in for a nasty shock." Likewise, Judge Sotomayor or Chief Justice Roberts could never get away with grounding a decision in an affirmative-action case in a personal psychological narrative, although life experience and psychological inclinations may well be the dispositive factors in where they come down.

Schauer makes a few tentative stabs at resolving the tension between traditional legal techniques and the insights of Legal Realism, but the central problem lingers. To be fair, resolution of the problem may be beyond the scope of his text, which is labeled as an introduction.

More significantly, the problem may be insoluble under our current system, because once you acknowledge the political aspects of judicial decisions, the rationale for an unelected third branch of government begins to erode.