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I?m a little late to the judicial neutrality party, having locked myself out of the Internet yesterday afternoon to get some grading done, but thought I might still weigh in on the Solum/Solove/Horwitz/DeGirolami discussion.  One of the aspects of that discussion that seems worth highlighting is the distinction between the descriptive and normative aspects of the interaction between ideology (or non-legal factors more broadly) and judicial decision making.  
 

Starting with the descriptive aspect ? how do judges act ? I take it that everyone agrees with the proposition that, no matter how judges conceive of or attempt to go about their role, they will be influenced by non-legal factors.  The disagreement concerns just how strong this influence is.  And in fleshing the matter out further it seems that we ought to recognize that the extent to which law constrains judicial behavior (in the sense of limiting the operation of non-legal factors) will vary along with at least a couple of factors. One is the level of the judiciary we?re talking about.  At least with respect to questions of law, lower court judges are much more constrained than higher court judges, both as a product of institutional structure and (particularly in courts with discretionary jurisdiction) the nature of the questions typically before them.  We may all agree with the proposition that it is impossible for judges to act as neutrals, and I think it?s also important to recognize that what it means for a judge to act neutrally differs depending on the type of judge.  Of course, the discussion here was sparked by the Kagan nomination, and thus involves the sort of judge who is least constrained.
 
Another factor is individual differences between judges.  Even if all judges subjectively were to view themselves as equally constrained by, and acting pursuant to, law, I?m confident we would (were we able to measure it) find differences in the extent to which their decisions were in fact bound by law.  Put differently, even members of a set of judges committed to, say, some rigid version of formalism would come to different resolutions given some non-easy case.  I think we?d see non-legal influences operating more strongly on some of these judges than others. And this is so even though, subjectively, each judge would perceive herself as acting in rigid compliance with law.  People are very good at believing that they are not acting in ways that are biased, unfair, and so forth.  Yet we all know people who seem able to conjure up a post hoc justification for whatever course of conduct happened to suit them, and others who agonize over such things. We don?t need to posit that judges are intentionally acting in the instrumentalist ways that the attitudinal model of judging suggests in order to have a world in which at least some judges engage in decision making that appears to take substantial advantage of the underdeterminacy of legal standards.
 
Descriptively, then, we have a world of underdeterminacy, in which non-legal factors have room to operate, and in which types of judges and individual judges vary in terms of their susceptibility to these influences.  Add to this the concern ? which seems to underlie much of Larry?s discussion ? about the possibility of this phenomenon feeding back on itself.  Such feedback could occur in that open recognition of the inevitable influence of non-legal factors may seem to legitimize less formalist (though perhaps Posner?s term ?legalist? fits better here) approaches to judging, thereby leading to even less constraint.
 
The normative dimension ? how should judges act ? involves opening an even bigger can of worms. The range of prescriptions extends (at least) from the Scalian ?rule of law as the law of rules? to a world in which judges have license simply to see that justice is done in each case. There are arguments to be made for and against each of these approaches, including the fact that none of them can assure us that judicial behavior will operate uninfluenced by factors that are deemed improper by any given approach.  Judges of course take differing positions on the normative questions about their role, which in turn adds to the individual variance discussed above.
 
Where does this leave us?  I think it leaves us in a world in which, wherever any of us comes out on the normative issues, we have to acknowledge and account for judges who do not act in accordance with our own conceptions of how judges should act.  One might think the Scalias have it right, but one must still acknowledge the existence of the Warrens, or vice-versa.  For my part, because I am mindful of the existence of judges who, whether intentionally or otherwise, take advantage of underdeterminacy, I think it important to focus on creating institutional structures and processes that foster a regime in which judges are led naturally to be transparent about the factors that are driving their decisions.  Some of these can be relatively concrete, such as requirements relating to opinion production and formatting and other aspects of court processes.  But some of it is more diffuse, as is much of what works to channel judicial behavior.  Here I am thinking of things in the nature of the ?situation sense? and norms of professional socialization that Karl Llewellyn focused on a half-century ago.  When it comes to Supreme Court nominations, although I find confirmation hearings nearly unwatchable and the whole spectacle of the larger debate that breaks out in the wake of a nomination to be somewhere in the vicinity of excruciating, perhaps there is some value to it as a sort of final imprinting of the nominee.

 

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