Legal Surrealism

By Mike Dorf

Legal realism--the view that judges make decisions based on their values, ideologies, and backgrounds, rather than simply based on the formal legal materials--has become a commonplace for academics, lawyers, and judges in their unguarded moments.  To be sure, it is still impermissible for a Supreme Court nominee to profess legal realism (as I elaborated here).  But that is part of the kabuki dance of confirmation.  Any law student who is paying even minimal attention accepts the legal realist position by about the second month of law school.

Legal realism is sometimes parodied as the view that "what the judge had for breakfast" decides the case, a double falsehood.  First, the phrase falsely suggests that judicial decision making is random.  Second, it suggests that formal legal materials play no role in judicial decision making.  That view--that law is empty--is about as naive as formalism itself.

Nonetheless, every now and then a decision appears so nakedly political as to shake the faith of us post-realists, leaving us wondering whether a different sort of radical legal realist view is right--what I shall call "legal surrealism."  A few scholars have coined this phrase before, ascribing to it a variety of meanings.  I use it here to mean the view that plain old politics decides the most important cases.  In recent memory, Bush v. Gore was treated by a fair number of scholars as the best evidence for legal surrealism.  Now, I fear that we may have a new example: A pair of cases involving the question of whether people who oppose same-sex marriage are entitled to be shielded from public identification.

Last week, in Hollingsworth v. Perry, the Supreme Court stayed the trial judge's plan to videocast the proceedings in the case challenging California's Prop 8.  (I posted a brief note on the case when the Court granted a temporary stay.) What was striking to me was not the result but the lineup: The 5 most conservative justices voted to stay the plan; the 4 most liberal dissented.  That's striking because none of the questions directly involved--whether there was irreparable injury, whether there had been adequate time to comment on the district judge's plan, whether to allow cameras in the courtroom, etc.--was a right/left ideological issue.  Thus, the most obvious explanation for the particular split would appear to be the justices' underlying views of the merits.

I hope I'm wrong about that, partly because if I'm right, that puts Justice Kennedy in a 5-Justice conservative majority to reject a constitutional right to same-sex marriage.  But I also hope I'm wrong because of the second case that presents a version of this issue: Doe v. Reed, the case from Washington State that involves whether there is a right to sign a petition anonymously.  As I explained in my FindLaw column on the case last November, there is a very good liberal argument for finding a First Amendment right to sign petitions anonymously.  Now that the Supreme Court has agreed to hear the case--having granted cert last week--the legal surrealist in me fears that the genuinely important free speech questions will be distorted by the Justices' underlying views of the merits of same-sex marriage and civil unions.  I am not generally a legal surrealist, but the Supreme Court sometimes makes legal surrealism tempting.