We are All Legal Realists Now
By Eric Segall
"Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety per cent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections." Chief Justice Charles Evan Hughes
Last week I had the pleasure of having Mike on my podcast/video series Supreme Myths and, among other things, we had a nice chat about legal realism. This topic is extremely important given the trope that has been circulating among scholars and even Supreme Court nominees that Elena Kagan said at her confirmation hearing, "we are all originalists." This statement was proudly repeated by Justice Kavanaugh at his confirmation hearing, and it has been thrown at me numerous times during my debates with originalists, who often add the word "now" to Kagan's quote.
This post argues that originalists employing Kagan's line to defend originalism ignore the context of her statement. I also suggest that "we are all legal realists now" presents a much more accurate understanding of constitutional interpretation as it is actually practiced by our judges than the slogan "we are all originalists now." This post is purely descriptive and leaves normative concerns for another day.
Here is Justice Kagan's full quote about originalism: "Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way we apply what they tried to do. In that way, we are all originalists." I think what Kagan pretty obviously meant is that where the Constitution's text is precise and rule-like, judges follow it, but where the text is imprecise and is more principle-like, judges apply that principle with reference to a host of factors, including original meaning but not just original meaning.
Most everyone agrees that this Balkinian "text and principle" approach describes constitutional law practice. It is a rare judge or scholar who thinks judges should just ignore clear constitutional text such as the President must be 35. If anything, the closest approximation to ignoring clear text comes from conservative scholars and Justices, many of whom claim to be originalists and textualists, when they ignore the plain meaning of the Eleventh Amendment and turn the phrase "another state," into the "same state" in cases involving state sovereign immunity. But even that particular doctrinal chaos is an exception to the general rule that judges don't question clear constitutional text.
Where the text is unambiguous, we don't need fancy theories of interpretation to explain why judges usually follow it (in the rare cases implicating clear text). What makes constitutional law so hard is the great legion of cases when judges have to apply largely indeterminate text to new problems. We all agree that free speech is a worthy aspiration, as are other constitutional limitations on government behavior, such as that it should not deny people the equal protection of the laws or due process of law. Moreover, some originalists even think that the Ninth Amendment allows judges to find unenumerated rights. The hard part is how should judges go about those difficult tasks, and that is where legal realism comes in because few scholars or judges would say that resolving these kinds of cases simply involves reading text and history and mechanically applying those sources of law to new problems or changed circumstances. That process is not an easy one to describe but saying "we are all originalists" does not even come close. Legal realism comes much closer.
To understand why we are all legal realists now, it is important to clear away a number of myths about legal realism. First, unlike some scholars associated with the critical legal studies (CLS) movement of the 1970's and 1980's, we (legal realists) are not making claims about the rule of law outside the courts. Of course there are clear rules that we follow every day without difficulty and many non-litigated constitutional rules are clear as well. We do not align ourselves with French deconstructionists or believe all language is radically indeterminate and depends on the perspective of the interpreter. I am not even sure those are fair claims about CLS, but in any event they are not realistic indictments of legal realism, though I hear them all the time, especially from academics of my generation who came of age in the 1980's.
Second, legal realists understand that much of the work of trial judges and even appellate judges does not implicate legal realist ideas. Lower court judges are often presented with claims that are precluded by relatively clear and binding prior cases, and these judges generally follow those precedents. Moreover, at the trial level, much of the work done by judges involves fact finding that falls outside debates about how judges should interpret law. At the appellate level, very few cases implicate hard constitutional law issues. Much of the work of federal appellate judges involves reviewing the records of criminal cases to make sure the evidence supported the verdict and other factual issues where most appellate judges apply the clearly erroneous rule in good faith, making those cases relatively easy.
So what then is legal realism? I don't pretend to speak for all legal realists, but I do think there are some basic and generally accepted principles that most self-identifying legal realists would accept.
Legal realists try to explain what judges do in hard cases first and foremost by emphasizing that judges do in fact make, as opposed to find, the law. In other words, constitutional interpretation involves a lot more than just applying prior legal rules to new facts.
Considerations outside formal logic and prior law are needed to explain why judges reach the decisions they do. This is not to say that original meaning or respect for precedent or relying on the structure of the Constitution are irrelevant to judges, just that such factors do not provide complete explanations for what judges do. The reason why Justice Thomas and Justice Ginsburg disagree over most hard constitutional law cases, or even why they agree in some small percentage of litigated constitutional law cases, has much more to do with their personal values and experiences than their disagreements over what the Constitution "means." Is there anyone who really thinks Ginsburg's liberal political views and Thomas's conservative values aren't the major drivers of their constitutional law decisions? Does anyone think a judge's membership in the Federalist Society or the American Constitution Society does not reveal a lot about how that judge will likely resolve many difficult constitutional law questions?
Legal realists believe that judges either consciously or unconsciously take into serious account the practical consequences of the decisions they make. Law as practiced by judges is not a paper exercise where real world implications are ignored. Within the extremely broad constraints of imprecise constitutional language with contested historical origins, judges make the best decisions they can with an eye on real people, real effects, and broad perspectives on what is best for society. These factors inevitably come into play in most constitutional law cases.
One data point suggesting that legal realism better describes what judges do in constitutional law than originalism or other grand interpretative theories is that, in virtually every major category of litigated constitutional law cases, the Supreme Court's doctrines have changed over time as the Justices change and/or society changes. Commercial speech was once not protected at all under the first amendment, now it is. At one time manufacturing was considered by the Court to be beyond Congress' commerce clause authority to regulate but now this economic activity is within congressional authority. Same-sex couples had no constitutional right to marry for most of our history; now they do. It was not until 2008 that people had a personal right to own guns under the Second Amendment, and not until this last Supreme Court term that private religious schools had a right to public funds to the same degree as non-religious private schools. I could go on and on and on. As retired Judge Posner once said, "if changing judges changes law then it is not clear what law is." Changing judges does change law, all the time, and that should be a strong indicator that the law includes much more than text, history, and precedent.
Oliver Wendell Holmes once famously said that "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." At least as applied to litigated constitutional law cases, this claim is accurate. When lawyers and scholars write party or amicus briefs in constitutional law cases, they do so with an eye on what the Justices want to hear as opposed to their own interpretations of imprecise text, contested history, and even prior cases. Advocates in front of the Supreme Court are much more interested in making arguments the Justices will accept than accurate depictions of prior law sources (of course those two goals often merge).
Contrary to the claims of some originalist scholars like Will Baude, Stephen Sachs, and Lee Strang, originalism is not now and never has been "our law." No one meta-interpretative theory could possibly explain what judges do when resolving hard legal issues. Originalism may be part of our law but so are a host of other factor, some of which most originalists would agree are relevant, such as stare decisis and mistakes of fact by those who wrote and ratified the Constitution and and its amendments. The latter category of considerations, expressly accepted by noted originalists Lawrence Solum, Ilya Somin, and Christopher Green, as I've written before, gives the whole game away. If judges are allowed to decide which changed facts since 1789 or 1868 are relevant enough to justify departures from original meaning, that level of discretion, which can only be exercised off the page of written texts or prior decisions, will inevitably implicate the personal experiences and values of judges in a way that simply cannot be explained by resort to formal legal materials.
It is possible to substantially reduce judicial discretion in constitutional law cases but only by judges employing super strong deference to other political actors. Such a rule still implicates how to ascertain meaning but it is more concerned with who gets to finally decide that meaning--judges or other governmental officials. But no reasonable person could argue such a clear error constitutional law rule is now or has been for a long time "our law."
So I will ask this admittedly rhetorical question about constitutional interpretation. Which quote better describes our actual constitutional practice "We are all originalists now," or the following description written by Oliver Wendell Holmes in his famous speech The Path of the Law, written in 1897, but still accurate today:
I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. . . . I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.
Whether women should have a constitutional right to abortion; whether public universities may use limited racial preferences in admissions; whether Congress may commandeer state legislatures when exercising its enumerated powers; whether states may ban obscenity; whether commercial speech is deserving of first amendment protection and, if so, how much; whether people have the right to possess assault weapons; and whether the President should be absolutely immune to civil suits for all time for official actions taken while in office, along with most litigated constitutional law issues, are "debatable and burning" questions that judges resolve with reference to a host of legal and non-legal factors including the Justices' personal values and experiences and their evaluations of the real world consequences of their decisions. That is why the stakes of judicial appointments are so high, and also why "we are all legal realists" is a much more accurate description of constitutional law than "we are all originalists."