On Tuesday, in class we read the article about the new Supreme Court Justice Sonia Sotomajor. This article began a conversation about legal realism and the discretion that judges have. Discretion brings forth a lot of power to judges. While using their discretion they can consider the facts along with the law. I believe this to be a good way to interpret the Constitution.
Oliver Wendell Holmes stated, “The life of the law has not been logic; it has been experience.” I have heard this quote quite a few times over the years and I agree with it. And after reading this article I have only to strengthen my opinion. Judges need to use their experience to interpret the law. Supreme Court judges have to interpret the Constitution of the United States to the best of their ability and also have to consider the social effects of it that decision. Throughout history the law has evolved because times change and the law sometimes needs to change with it. An example could be laws dealing with the internet and then the issues of segregation in the sixties that the Supreme Court had to decide upon.
Judges need to consider the social facts, the facts of a case, and the law when they determine sentences. Every case in the justice system is different in some way. Precedent is still used to formulate a decision about the particular case at hand, but combined with other facts and a judge’s experience. Just as Sotomayor stated at the end of the article, the courts “are in large part the produce of their membership and their judge’s ability to think through and across their own intellectual and professional backgrounds to find common ground.”
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I agree with your post, and feel that in our present day and age, Judges must use a realist approach to law in order to make rulings that will be most effective in society. It has come to the point where we can not base all laws off of a strict interpretation of the constitution and earlier precedents as legal positivists may want us to. Judges must take into account the social effects that their rulings will bring about since their judicial decisions wil have the effect of legislation by shaping behavior. A Judges past experiences and discretion will help aid them in determining what these social effects may be.
ReplyDeleteI also agree. Today, realism seems to be the most practical approach for judges when deciding cases. There are so many determining factors that must be considered in order for judges to reach a decision that will positively effect the public. If judges took a strictly positivist look on cases, the outcomes would tend to not be in the best interest of society. A judges descretion and experience is without a doubt important and necessary.
ReplyDeleteOf course, judges interpret law in their own way. That is why our Constitution is described as a “living Constitution.” The authors of the Constitution knew our country and people would change and evolve so they wrote the Constitution with the vagueness to accommodate our society. I think the problem with Judge Sotomayor, and many other radical statements, is that she said what everyone already knows but is afraid to say. The truth is the law doesn’t always apply the same for every case, but no one wants to admit that there is subjectivity in the law. But the law was written with subjectivity in mind. Statements that go against established institutions will always be meet with criticism.
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