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I’m feeling deflated this morning. For many decades, the legal
academy (and to some degree, even the rest of the universe) has been
debating the degree to which law is a scientific abstraction—a computer
you crank up that spits out the right answer—and the degree to which it
is malleable, subjective: a piece of clay that judges necessarily
shape. At times, legal realism, as the second position is called, has
gone too far. But mostly it’s a hugely welcome breath of fresh air, a
way of articulating what everyone intuitively understands. Judges are
not robots! They are not, in fact, umpires who just call balls and
strikes, to give in to John Roberts’ now all-pervasive sports metaphor,
because sometimes they have to determine the size and all the other
parameters of the strike zone.
But now we have Sonia Sotomayor going along with and indeed
promoting a view of the law as all about Input automatically dictating
Output. As she keeps putting it, in this or some other variation, “I’m
a judge who believes the facts drive the law. By drive the law, I mean,
determines how the law will apply in that individual case.” Sometimes,
it is true that ... (Read more in Double X.)