Legal Realism at the AALS Con Law Conference

I’m currently attending the Association of American Law Schools Conference on Constitutional Law in Cleveland (described here). Tomorrow, I’ll give an address at the Lunch Session, with an accompanying post on this blog. For today, I thought I’d say a few words about yesterda morning's plenary session. The panel members---Erwin Chemerinsky, Eric Segall and Lee Epstein---offered their respective takes on “The Changing Roberts Court.” Here’s a very condensed summary:

Chemerinsky: With the Roberts and Alito appointments, we are now seeing the longtime dream of Republican Presidents finally coming to fruition. Conservatives have consolidated their power, as Justice Kennedy doesn’t often swing liberal, and he’s now the median Justice.

Segall: It’s true that Kennedy holds the balance of power, but he really is a centrist. In fact, there are two Justice Kennedys (Segall’s formulation. I would have said “Justices Kennedy.”) There’s formalist Kennedy, who writes and joins ordinary sounding opinions based on formal legal materials, and then there’s romantic Kennedy, who talks about the mystery of life, the equality and dignity of persons, etc. I (Segall) like romantic Kennedy better because he doesn’t try to dress up value judgments in the misleading garb of the law.

Epstein: If we look at the numbers, we see only one real discontinuity over the last forty years, and that was when the Warren Court gave way to the Burger Court. At the end of the Warren Court, Thurgood Marshall was the median Justice; at the beginning of the Burger Court it was Byron White. That’s a huge swing, much greater than the swings we’ve seen since: Powell to O’Connor to Kennedy.

Here I’ll register two of my own observations based partly on what panelists and audience members said.

1) Let’s assume that Justice Stevens and only Justice Stevens retires some time during the next Presidency. Pretty much regardless of who a President Obama names to the Court, Justice Kennedy will remain the median Justice. However, a President McCain is likely to nominate someone in the Roberts/Alito mold, meaning that Alito (who thus far as a Justices appears ever so slightly less conservative than Roberts as the statisticians measure these things) or the new Justice would become the median Justice, which is a substantial shift to the right from Justice Kennedy, at least on some important issues.

2) I was struck by how nakedly legal realist these analyses all were. There was core agreement among the panelists that the Justices’ ideologies and values determine outcomes in the Supreme Court in constitutional cases. That view is consistent with the possibility that law has some content independent of judges’ values, of course: the Supreme Court takes cases in which the law is unclear, so the sample is skewed. Still, in my view (as I’ve argued in some of my academic work) even on the Supreme Court the “attitudinal model” is only a part of the story. (Epstein, to her credit, said as much, even though she is one of the top 3 attitudinalists in the country.)

One question I raised for the panelists is this: How should theses sorts of legal realist insights about politics be integrated into a course on constitutional law? Law students pretty clearly pick up on the lesson that the Court makes “political” decisions, and so one cannot and should not hide that fact from them. Yet at the same time, we are trying to teach them to be competent lawyers, and it’s a category error to say to a judge “decide the case this way because it conforms to your values.” Chemerinsky’s answer was to say that when he writes a brief for the Supreme Court, he “pitches” his legal argument to the Justice he believes to be most in play, these days Justice Kennedy. “If I could put Justice Kennedy’s picture on the cover of my brief, I would,” Chemerinsky noted. That’s fair enough, but it doesn’t really come to grips with the attitudinalists’ claim (and Chemerinsky’s own agreement with that claim)---which is that legal arguments don’t really matter in the Supreme Court. This, I think, is evidence for my view, which is less reductionist: Justices’ ideology/values matter a great deal, but legal argument matters too, even in hard cases. If it didn't, one couldn't "pitch" a legal argument at all.

Posted by Mike Dorf