Today, I made an offhand remark about the way a legal realist might interpret a hypothetical judicial decision, though the "hypothetical" decision was essentially the ruling in the recent supreme court case Caperton v. Massey. As I put it, a legal realist might ignore the stated rationale for a decision and evaluate a ruling on the basis of sociological and psychological factors relating to specific judges or the community of judges as a class. Accordingly, a legal realist might not be all that surprised that a West Virginia judge who received campaign contributions from a coal company might be inclined to rule in the company's favor.
Technically, the Caperton case gets even better from a legal realist's perspective because the supreme court's decision in the case wasn't about the ruling in the case, but instead whether the West Virginia judge should have recused himself from hearing the case given his financial connections to the defendant. Whereas a legal positivist might see no connection between a judge's social circumstances, e.g. being supported by coal company largesse, a legal realist would find it impossible to overcome the sense that social and psychological factors influence, if not determine a judge's decisionmaking. Although less radical than classic legal realism, analysis from the New York Times suggesting that judges' political leanings might be guessed by their past voting record reflects a widely accepted method of assessing judicial decisions.
Interestingly, Chief Justice John Roberts offers a dissenting opinion in the Caperton case that criticizes the idea that the "probability of bias" found in socio-economic relationships could be used as a standard for judgment:
In any given case, there are a number of factors that could give rise to a “probability” or “appearance” of bias: friendship with a party or lawyer, prior employment experience, membership in clubs or associations, prior speeches and writings, religious affiliation, and countless other considerations. We have never held that the Due Process Clause requires recusal for any of these reasons, even though they could be viewed as presenting a “probability of bias.”
In doing so, Roberts rehearses one of the legal positivist's oldest moves: decisions are based on coherence with precedent rather than either socilogical or moral factors. If a decision can be shown to derive from legal precedent and will likely produce more binding precedent in the furture, the positivist argues, it deserves the status of law no matter what the moral value or social context might suggest.
Going forward, we will have to discuss how such decisions test the value of either realist or positivist approaches, whether it is fair to characterize Roberts as a positivist or even if non-discursive factors such as sociological context or psychological disposition play a role in judges' decisions.
