Legal Realism and the Lefty Blogosphere
posted by Dave Hoffman
In short, does not Althouse admit that she too, is a legal realist? And given that admission, is it not fair to expect that Althouse would approve of a query in detail regarding Alito’s views on legal issues? Is it not fair to expect that Althouse would not condemn critiques of the results of Alito’s opinions without trying to engage in hypertechnical “gotcha-isms”?
I am interested in the idea that legal realism entails a commitment to “query in detail . . . Alito’s views on legal issues.” There are lots of different types of folks who we might think of as legal realists, and I doubt that they could find a consensus about a definition of the school of thought, let alone a position on the scope of the Senate’s advise and consent role. But it is an provocative idea, wrapped in some hyperbolic clothing.
[E]ven a legal realist like myself understands that the judicial rules place limits on how much wiggle room judges have to achieve their desired results. Concepts like precedent, consistency, rules of construction, political question doctrine, etc., place limits on the ability of judges to render any result they deem the correct one. And in a case like Bush v. Gore, adhering to those rules is more important by a factor of 10 than in any other case. It is precisely because of what was being decided that the SCOTUS’ actions in Bush v. Gore were egregious in a manner almost unequalled in the history of the Court. They should never have taken the case period . . .
Finally, what was the essential difference between the actions of the Florida Supreme Court as compared to the SCOTUS’? Very simple. The Florida Supreme Court HAD TO DECIDE the case. It had no choice. It could have ruled in favor of Bush or in favor of Gore. But it HAD to rule.
The Supreme Court of the United States had no such compulsion. Cert denied is all they had to say. They chose to do otherwise.
I think Armando is flat wrong here. Gore v. Harris, the ultimate Florida Supreme Court merits decision in the litigation, appears to be an exercise of discretionary jurisdiction under Section 3(b)(5) of the Florida constitution. But maybe that is the type of “hypertechnical gotcha-ism” that I ought to be avoiding. Whoops.