Earlier this week President Obama announced the nomination of Federal Appeals Court Judge Sonia Sotomayor to the U.S. Supreme Court.
Predictably her nomination produced swift reaction: cheering accolades from some quarters and harsh condemnation from others. What caught my own attention was the response of a number of conservative pundits to an article Sotomayor wrote with Nicole Gordon, “Returning Majesty to the Law and Politics: A Modern Approach” (PDF), 30 Suffolk U.L. Rev. 35 (1996), based upon a speech Sotomayor delivered in February 1996 as part of the Donahue Lecture Series, a program instituted by the Suffolk University Law Review to commemorate an honored 1921 alumnus, Judge Frank J. Donahue. A former faculty member, trustee, and treasurer of Suffolk, Donahue served as an Associate Justice of the Superior Court of Massachusetts for 42 years. (As an aside, over the years the Donahue Lecture Series has featured many distinguished speakers, including Chief Justice William H. Rehnquist, Associate Justices Antonin Scalia and Stephen G. Breyer, and Judge Richard A. Posner.)
Sotomayor’s article acknowledges the lack of public confidence in law and legal institutions, due in part to law’s propensity to evolve over time and the uncertainty of its outcomes, and sets forth some modest proposals to restore confidence in the legal profession and the judiciary. Sotomayor recognizes, too, the binary limitations of law, giving alternative dispute resolution a nod:
…the adversary system, almost by definition, cannot address the gray area of the “truth” present in most cases because the system tends to produce all-or-nothing winners and losers. This is why settlements and new forms of “alternative dispute resolution” are so important.
What provoked the heated wrath of several conservative voices? These words:
The public expects the law to be static and predictable. The law, however, is uncertain and responds to changing circumstances.
The constant development of unprecedented problems requires a legal system capable of fluidity and pliancy. Our society would be strait-jacketed were not the courts, with the able assistance of the lawyers, constantly overhauling the law and adapting it to the realities of ever-changing social, industrial and political conditions; although changes cannot be made lightly, yet law must be more or less impermanent, experimental and therefore not nicely calculable. Much of the uncertainty of law is not an unfortunate accident: it is of immense social value.
And finally these:
…a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction…[referring to cases of first impression]
Sotomayor’s critics are quick to see these as nothing more than secret code, the tell-tale signs of judicial activism, and convincing proof that Sotomayor will make up law out of whole cloth to advance a radical left-wing agenda.
Alas, there is nothing either remarkable or sinister about what Sotomayor has written. She is simply describing what every first-year law student in common law jurisdictions like the U.S. learns during his first few weeks in law school: that law is in flux, gradually but constantly evolving, and that some of it, as indeed it has been for centuries, is the product of judicial decision making not legislative action. At the risk of reproducing here what has rapidly devolved into a tedious cliché through constant repetition, I offer you what jurist and legal scholar Oliver Wendell Holmes said about the law in his best known work, The Common Law:
The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.
On a less lofty, more pragmatic level, the uncertainty of law is well known to its agents, intermediaries, and surrogates: it is what creates leverage at the mediation table. As litigators and the mediators who assist them behind closed doors know full well, the law can be unpredictable, so better trade hope for certainty by settling.
While pundits cannot see it, even the poets know of the mutability of law; I leave you with W.H. Auden’s moving work, “Law Like Love”, which speaks of law’s unknowable and ever-changing nature:
Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Law is Good morning and Good night.
Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.
And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.
If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyvay:
Like love I say.
Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.