Constitutional interpretation and jurisprudence in the United States is either different or similar to that of other nations in the sense that the philosophical and theoretical underpinnings of adjudication in the American judicial system, particular in the Supreme Court of the United States, are based on a school of thought known as “Legal Realism.” This theory stands in contrast to its opposing theory, namely, “legal constructivism,” which states that the Constitution is a living body that is pertinent to all legal situations. When one assesses legal realist theory, the conclusion is that the reality of adjudication in the American judicial system is one that is counterintuitive to popular or mainstream perceptions of America’s judicial system. “Legal Realism” states that there are no legal rules; moreover, the decisions of judges are made on “extra-legal grounds,” meaning that decisions are usually based on the beliefs and preferences of individual judges, not rules. As a result, law becomes a branch of sociology in the sense that law is merely a study of the behavior and cognition of individual judges, not the study of the “law” per se. Also, the law is subject to the influences of political, social, economic, and “contextual” factors, according to the theory of legal realism.
Furthermore, law and decision-making on the part of judges are largely byproducts of “presentism” rather than history or precedent. Arguably, the law serves “present democratic needs” rather than upholding laws, rules, or legal precedents, based on the theory of legal realism. As a result, “the historian…ought to be skeptical about whether American history can be made to yield general moral lessons,” according to the historian Richard A. Primus. History tends to have little significance in explaining constitutional decision-making, considering that there are “serious intellectual hazards in trying to extract grand patterns…from any rich and complicated historical record.”
“Legal Realism” has “highlighted the indeterminacy of law, taught that judges make law, and advocated judicial pragmaticism or the balancing of competing values.” Stare Decisis, or the principle of adhering to legal precedents, is thus a paper tiger in the overall scheme of adjudication in the American judicial system. Justice Robert Jackson once described Stare Decisis as having “a mortality rate as high as its authors,” which suggests that judges have more power in determining law than legal precedents or rules. As Epicurus suggested, there is no law, for there is only power.
Moreover, the law and the courts do not tend to intervene in social issues when the bench is dominated by conservative judges. Social agendas have to be advanced through political means, especially when the social agenda that is being advanced does not represent the views of the majority of the court. In the United States, laws and social reforms are largely shaped by political forces. Courts and the law are expected to remain neutral amidst the battle between political forces, but as the theory of legal realism dictates, the courts are inevitably drawn into political battles. As Machiavelli said, politics creates ethics and thus the law, given that law is merely the promotion of ethics. Because ethics cannot be enforced, the law ultimately becomes a political tool used to impose political will. Machiavelli also added that political practice creates theory. Given that the experiences of different political actors are variant and disparate, theories become variant and disparate in their explanations of the world and how it operates.
Also, facts determine the application of principles in adjudication, not vice versa. Principles are derived from historical roots, but “the competing of presentist political democracy would make it difficult to understand the legitimacy of a [constitutional] system in which constitutional authority is inherited from the past,” according to Primus. As a result, “legal reasoning is ultimately political.” Meaning is determined by individuals given that text is ultimately subject to human interpretation. Legal text itself has no power over human interpretation, and thus “Supreme Court decisions interpreting the meaning of history can do something closer to rewriting the underlying object of interpretation than decisions interpreting the meaning of the text can.” Despite the fact that “discursive engagement with history bolsters the legitimacy of the constitutional system itself…by implicitly blunting the threat that emanates from the values of presentist democracy,” politics and the basic human behavior and cognition that underpinned political activity are the root causes of history and law. Ultimately, Primus states that “the content of constitutional history is thus a matter of substantive normative value, even independent of its tendency to support particular doctrines or decisions.” Thus, doctrines and decisions derived from the law are based on human beliefs and preferences.
One particular case that demonstrates the prevalence of “Legal Realism” over precedent and legal tradition is the case of U.S. v. Nixon. In this case, Nixon’s attorney asserted that “executive privilege” is an instrument used by the Executive to uphold its legally vested constitutional powers. Yet, the Supreme Court adhered to calls from Congress and the American public that President Nixon hand over confidential materials such as tapes and other documents given that “the generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial.” Again, politics between Congress and the Executive shaped a legal outcome in the American judicial system.
What can thus be inferred is that the adjudication which takes place in the American judicial system is not the adjudication of statute or legal text. Rather, the courts are forced to adjudicate between competing political forces despite the claim of independence and neutrality in the politics of the nation, thus rendering the American courtroom as a place that is modeled off an “adversarial” system of politics between Congress and the Executive on one hand, and the elites and the masses on the other hand. The question, however, is whether there exists middle ground between these competing political forces, or whether one side will ultimately dominate the other. Nevertheless, the aim of the law is to create balance and equilibrium between the aforementioned political and dialectical forces, which is an aim that has not been accomplished as of yet.
SOURCES USED:
Richard A. Primus. “Judicial Power and Mobilizable History.”
David M. O’Brien. “Storm Center: The Supreme Court in American Politics.”
Adam A. Azim 