Possible Legal Realism Drawbacks

In this blog I would like raise two concerns regarding legal realism: first, I would like to discuss the realist tenet that subjectivity of judges (i.e. their political affiliations, backgrounds, cultures, etc.) should play a factor in adjudication; second, I would like to discuss a potential problem regarding legal realism, specifically the fact that the form of jurisprudence is, more or less, grounded in a utilitarian outlook.

While judges characteristics and backgrounds may always play some type of role--whether that be consciously or unconsciously--in decision making, is it in the best interest of a nation or state to allow these characteristics to dominate in legal decision making? For instance, consider the fact that many supreme court judges are Catholic, and, thus being Catholic, their religious affiliations/tenets may play a role in their decision making. Is this fair to individuals in this country who are not Catholic, individuals that do not adhere to these religious tenets and beliefs, if judges were to adjudicate in a Catholic outlook? Might it be better that we adjudicate, if possible, in a manner that tailors to all individuals? This is only a thought. I am interested in what others think.

Secondly, another concern, possibly, with legal realism is the fact that it is grounded, more or less, in utilitarianism--that is, it is based in a consequential-based form of jurisprudence, the greatest good for the greatest number. Now suppose that we were to adopt this normative framework, what if the greatest good for the greatest number meant that, hypothetically, if we killed 10,000 U.S. citizens then the entire U.S. population, namely 3 million individuals, would never starve (a made up scenario of course). Now in a utilitarian framework this is kosher; after all, even though we will be killing 10,000 citizens, 3 million will never starve.

I guess my point in the second criticism of utilitarianism is that utilitarianism, while it may appear noble and well thought out, has a fundamental flaw, that is, it lacks a moral dimension (for instance, the fact that killing 10,000 people, even if producing happiness for 3 million, is morally wrong), and, lacking this moral dimension, may not be the best form of ethics (or jurisprudence) to adopt.