When Reality Leads to Legal Realism

“If courts don’t have to defend their decisions, then they’re just acts of will, of power.”

—Adam Liptak, “Missing From Supreme Court’s Election Cases: Reasons for Its Rulings.” The New York Times. October 26, 2020.

At base, Legal Realism, when you get past all the philosophical talk about natural science, is simple, “The law is what judges say it is.” There need be no consistency, for power need not offer explanations. The problem with the above quote is not a problem of shadow rulings, it points to something people don’t want to accept is a feature of the legal system as a whole. It’s more or less arbitrary. But, we need a method to resolve disputes. Every human society has judges.

The common law tradition has the advantage of trying to reach agreement among judges over time, a.k.a., stare decisis, but it still is based on granting the power to resolve disputes to certain people because it is convenient. As members of the country’s elite, judges will tend to align with elite interests. Everything else, such as the notions of positivism or “originalism” is just rationalizing “acts of will, of power.” See also: Exhibit A.