At Law & Liberty, Holden Tanner (clerk, Supreme Court of Texas): How to Recover Conservative Judging. From the introduction:
Conservative jurisprudence is at a crossroads.
One path wanders from our history and traditions. Our originalist arguments beat back living constitutionalism, but they have led us away from the core method of American legal reasoning. They have distanced legal conservativism from the well-worn ways of American jurisprudence. By brandishing the centrality of text, conservative jurists sought to constrict the aggrandizement of the New Deal Court and weed out the inventions of the Warren Court. But these victories track a collision course with our abiding philosophical enemy—legal realism. We tacitly accepted the core tenets of that modern heresy: that judges make law, that they do so purely on policy grounds, and that only written law can constrain them. Like a puzzle piece that no longer fit, we cast aside the common law tradition.
It doesn’t have to be this way. There is another path, one paved with traditionalism, economics, constitutionalism, and moral reasoning. It leads to a holistic conservative jurisprudence. Along the way, legal conservatives will encounter pitfalls and obstacles: questions about the judicial role, the separation of powers, and morality. But arriving at a jurisprudence for the common good—not the meandering esoterica of legal elites—means starting back towards the right direction.
This Feature begins by discussing four movements in conservative legal thought: traditionalism, law and economics, constitutionalism, and natural law. It then asks why some have fallen by the wayside. It picks up on a trail we’ve forgotten: our traditions of common law reasoning, in which conservative legal philosophy can flourish. It closes with a roadmap for nationwide legal reform that begins with our state courts.
And from later on:
In his 1995 Tanner Lectures, Justice Scalia tore apart the legal profession. His complaint? Students of the common law case method were utterly unequipped to operate in a system of legislation. While the Justice was “content to leave the common law, and the process of developing the common law, where it is,” he questioned whether “the attitude of the common-law judge” was fit for the work of federal and state judges. He viewed the common law as a way to let expert jurists, rather than democratic legislatures, craft the law as they saw fit; he conceded that legal realism had conquered the common law courts.
He then skewered American jurists for lacking a coherent theory for interpreting texts. For Justice Scalia, applying common law methods to written law raised constitutional concerns. A distinct theory was needed. He led the profession out from its ineptitude with his originalist and textualist philosophy.
But Scalia’s arguments went too far, eroding unwritten law and classical legal reasoning. From the premises that (1) common law was merely judge-made law and (2) legislators alone should make law, it follows that common-law judging in a system of separated powers must go. Justice Scalia’s triumph was establishing the truth of the latter premise. His fatal flaw was tacitly accepting the former. Scalia, like many others, ceded the common law tradition entirely to legal realism.
The result has been a wholesale reorientation of legal conservatism towards a positivist jurisprudence.
Descriptively I think this is interesting and correct, but I tend to side (unsurprisingly) with Scalia.
And from the conclusion:
[W]e must revive the traditional understanding of common law reasoning that separates our view from that of legal realism.
We have been woefully misled by the canard of “judge-made law.” Rather than viewing common law as a body of rules, it must be understood as a method of legal reasoning. A common law court does not simply make up law. We should instead see that they establish law from the general legal rules already made available through reason and tradition. To “establish” does not mean to create ex nihilo but rather to take what is general and amorphous and render it concrete. Courts establish law by giving it a concrete shape or definitive application. This is true even of judicial decisions applying written law. Establishing doctrine and determining applications does not make the judicial decision itself a source of law.
A simple model of common law reasoning is this: Human reason grasps moral imperatives that provide primary rules of human conduct. These moral rules—requiring us to refrain from harming others or to keep our promises—can be understood as binding legal rules, even though they are unwritten. From a positivist perspective, this requires only a rule of recognition designating them as such. From a natural law perspective, all legal rules are derivative of the moral force of these primary rules. Even the obligation to obey positive law flows from them.
But these rules are relatively indeterminate; people need more specific guidance. The judge, in our system, discerns these moral principles and then gives them a definite shape by reference to custom, which informs the reasonable expectations of the parties. Over time, the case law itself forms customs that courts might reasonably follow. In a hierarchical system, higher courts bind lower courts in their determinations of how custom concretizes the requirements of morality. Reason and tradition thus ground the common law in pre-existing legal obligations.
The choices that judges make, while not fully mechanical, are meaningfully constrained by their limited role as adjudicators of concrete disputes. As courts develop standards of evidence, burdens of proof, procedures for litigation, and necessary elements of claims, they establish more clearly what a court ought to require before finding a violation of those pre-existing moral obligations. Just as a well-reasoned textualist opinion clarifies the application of a statute and provides a doctrinal test for its application, a common law opinion elucidates the requirements of morality and provides administrable rules for deciding future cases.
Posted at 6:05 AM