Justice Cardozo's Legal Realism as Subjectivity as Judicial Abuse of Power

I have recently finished reading Justice Benjamin Cardozo's (justice of the Roosevelt era) book entitled, "The Nature of the Judicial Process." It took me all of roughly twenty-four hours to finish reading it; this in light of the fact that the beginning of this twenty-four hours commenced right after I finished my classes in Accounting and Business Communications at the University of Washington.

The central thesis of Cardozo's book is that subconscious forces inevitably taint (as opposed to merely 'affect') judicial decisions: no matter how objective a judge supposes himself to be. This thesis implies that judges are constrained by convention; that is, they can never completely leave the shackles of what Freud would call, their 'subconscious' prejudices and biases that result from the circumstances of the environment in which they live. Cardozo, however, believes that although the ideal judge (most likely akin to Dworkin's Hercules judge) should base decisions off objective assessments and applications of the law, the subjective prejudices and perspectives of the self can't be overcome, and one may infer that he seeks to make the point of acknowledging that no judicial decisions are ever free of subjective biases. He also claims that the central purpose of jurisprudence lies in creating social welfare (yet this idea is slightly difficult to make sense of given Cardozo's ambiguous definition of that term).

Cardozo, moreover, believes that there are four types of sources from which the judge makes decisions: (1) method of philosophy, (2) method of history, (3) method of custom, and (4) method of sociology (of promoting 'social welfare'). (While I don't intend to go in depth into each of these methods, I'll touch on some or all of them briefly when they are useful in making other points.) He defines the source of judicial decisions based on philosophy as one of almost a priori reasoning. He thinks of reasoning philosophically--in adjudicating cases--as reasoning by analogy or carrying out legal principles to their logical conclusion. The former is almost exactly like the common law, which mean that relevant similarities between the facts of distinct cases warrants judges to make the same ruling in both instances. The latter is like what John Rawls would call, equilibrium reasoning. It is to formulate legal principles and to figure a priori (which Cardozo seems to think is the only way of reasoning 'philosophically') conclusions or applications of the principles to particular cases--it is like finding unintended consequences, which may provide grounds for rejecting the legal principle in favor of some other formulation.

Cardozo thinks that subconscious forces dictate which source of judicial decision-making, or source of standard for adjudication, takes precedence; for instance, one judge may think that social welfare effects are of more importance than logical consistency or customs of society. The point is that judges can't escape from whatever subconscious forces lead judges to favor one 'method' over another.

Cardozo's theory of jurisprudence came at a time when the legal movement known as legal realism was taking hold of law schools and general jurisprudential theory. Cardozo, as well as his friend and colleague Justice Oliver Wendall Holmes Jr., were two powerful proponents of this theory during the time. It was an almost natural extension of the then popular philosophy of pragmatism that was making its mark on academia by the influence of William James.

My biggest point of difference with Cardozo's jurisprudential theory is the implied idea that law should evolve with the people and that judges should adapt their judicial decisions to the changing circumstances of society. This is to say that judges should interpret the meaning of statutes and constitutions--the law--in light of the fact that the interests, customs, and composition of society changes. This theory implies that judges know these customs and that they can effect social welfare for the better. This seems to leave much room for judicial discretion and an almost baseless means of adjudicating cases--instead of simply acknowledging that subjectivity can't ever be completely removed, the theory actually leads to too much subjectivity. The old notion of judges making decisions based on the last book they read or what they ate for breakfast comes to a head. While Cardozo, nonetheless, acknowledges that judicial 'law-making' is only allowed when legislative intention isn't completely set, his theory still allows for massive abuses and implies that judges somehow know the customs as well as can effect social welfare better than legislatures--it leads to judical abuse, making decisions based on political persuasion than application of the law. This is what I believe is the logical extension of his argument.

What does it mean to take an objective approach to the law? Justice Scalia thinks that judges in their role as judges should apply the definitions of words of those who passed the laws(legislature) to find the meaning of the law. In this way, judges avoid judical law-making, and leave that job to the legislature--the people elected to make law and represent the interests of the people. They, after all, know the culture, customs, and ways to promote social welfare better than judges who tend to come from older generations. This post has become too long, and so I will continue with this topic so other time.