Judge-centered jurisprudence
Before turning to these arguments, we ought to examine the American obsession with judges and judging. I begin where every American lawyer begins, in law school. The curriculum and attitudes of law school form the background conception of law assumed by lawyers, and that is a judgecentered conception.
To begin with the mundane, students swiftly learn that American law professors idolize judges, and they especially idolize the justices of the US Supreme Court. Constitutional law reigns supreme in the prestige hierarchy of law-school subjects, and to a far greater extent than other law-school subjects the study of constitutional law means the study of the Court’s opinions. “The Court” - there’s only one, just as to New Yorkers when you say “the City” there is only one. A Supreme Court clerkship counts among the gold-standard credentials for entering the legal academy (and for entering prestigious law firms, some of which pay six-figure signing bonuses to Supreme Court clerks). In part, of course, that is because the ultra- competitive winnowing process for Supreme Court clerks guarantees that they are among the best and brightest. But equally brilliant law graduates clerk for lesser courts, or don’t clerk at all. The Supreme Court clerkship matters because of the aura of The Court and its justices, which somehow clings to the clerks.The Court sits atop a hierarchy, in power and legal authority most obviously, but also in prestige and charisma. Judges matter, and what powerful judges say matters powerfully. Judges, as somebody or other is always saying (sometimes ironically, often not), are the high priests of justice. Holmes called their opinions “oracles of the law.”[230] You pick the religious metaphor - they have all been used, all too often, yet their shopworn banality does nothing to diminish their accuracy. We do treat judges as oracles, in the precise sense that we identify the law with their utterances of it.
Thus, when I first attended a colleague’s lectures in a jurisprudence course entitled Legal Justice, the guiding question, “What is legal justice?” quickly transformed itself into a different one: “How should judges decide cases?” I do not criticize my colleague’s move; when I teach the course - a largely historical survey of a century of American legal theory - I do the same thing.
That is because, deeply embedded in American legal theory, we find nearly everywhere the assumption that the law more or less is the set of answers to the question “How should judges decide cases?” In the most influential law review article ever written, Oliver Wendell Holmes, Jr., included what is arguably the most famous one-sentence definition of the law ever penned: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.”[231] John Chipman Gray, a friend and intellectual fellow traveler of Holmes, went so far as to argue that statutes are not laws but sources of law. They become law only when the courts apply them.4
From the late nineteenth century on, American legal education has largely been structured along the lines that Holmes’s dictum lays down. The standard law textbook is the casebook, and that means we study law by studying what the courts have done.[232] Appellate decisions are the paradigm of law. Even casebooks on statutory subjects make the statutes come to life only through appellate decisions interpreting them. The subliminal message is that it is courts and judges that matter, not the legislators who enacted the statute. To be sure, one of our most familiar political tropes is the lament over the evils of judicial activism, and the need for courts to defer to legislatures. But legal education tells us from the very first day that genuine deference is not only misguided but impossible. That is because, as Morris R. Cohen wrote a century ago, judges are not phonographs reproducing someone else’s music.
They interpret laws, and there is no such thing as a null interpretation. Cohen’s observation is obviously correct. I raise it, however, not to defend judicial activism but merely to point out that virtually every moment of an American lawyer’s professional education conveys the meta-message that judges are indeed the active parties in the law. Though no modern writer puts the point as sharply as Gray, we do continue to treat statutes as mere sources of law, unactualized potentialities until some court somewhere realizes them by tendering a decision.Historians classify Holmes and Gray as legal realists, or proto-realists. The realists’ fundamental theme is that law is what law does, and judges are the doers - they issue the orders or, in Holmes’s imagery, they determine where the axe will fall. But anti-realism can be just as judge-centered as Holmes or Gray. The obvious case in point is Ronald Dworkin, for whom legal philosophy is nothing more than “the general part of adjudication, silent prologue to any decision at law.”[233] Dworkin’s conception of “law as integrity” requires us to view law as a consistent, coherent, and mutually reinforcing network of principles. Famously, Dworkin expounds his views using the heuristic device of Hercules, a judge of superhuman synthesizing powers and an all-inclusive law library. To determine the law of a case under law-as-integrity, one asks the simple question: “What would Hercules decide?” - “WWHD?” And the law itself, the entire system, consists, under Dworkin’s conceit, of the set of answers to “WWHD?” Law is nothing but the ideal limit-point of judicial activity. Gray’s judge-centeredness pales by comparison with Dworkin’s.
Or consider Anthony Kronman’s account of good judgment and how lawyers acquire it. Good judgment, in Kronman’s view, requires sympathetic identification with alternatives that often represent incommensurable values, combined with the capacity for subsequently detaching yourself from each alternative in order to weigh them.[234] The case method of instruction cultivates lawyers’ judgment because, when it is done right, the teacher compels the student to examine each case from the viewpoints of all the parties, articulating the values they represent in the strongest form, then abruptly switching perspectives.
Ultimately, the student must come to a decision, and that implies that the judicial point of view takes priority over all others. As Kronman sets it out, we are saved from the slide into moral relativism by assuming the vantage point of “the coldest and most distant, most judicial, eye,” which gives usa broad familiarity with diverse and irreconcilable human goods coupled with an indefatigable willingness to enter the fray, hear the arguments, render judgment, and articulate the reasons that support it, even when all hope of moral certainty is gone. At war with itself, this complex set of attitudes nonetheless describes a recognizable moral ideal, an ideal closest, perhaps, to the public-spirited stoicism implied by the Roman term gravitas.[235]
The judge, in Kronman’s view, personifies practical wisdom itself, and the judicial standpoint has epistemological priority in articulating “the good of the community represented by the laws.”[236]
Ironically, by the end of his life even Hart fell under the sway of judge- centeredness. In his “Postscript” to the second edition of The Concept of Law (Hart’s late-in-life response to Dworkin), he describes the “rule of recognition” - the complex criterion for identifying law and determining which propositions of law are valid - as “in effect a form of judicial customary rule existing only if it is accepted and practised in the law-identifying and law-applying operations of the courts.”10 Even for Hart, then, the activity of identifying and expounding law has now narrowed to what courts do and should do, how judges reason and should reason in deciding particular cases.