Vol. 26 No. 4 (August 2016) pp. 78 – 81
JUDGING JUDGES: VALUES AND THE RULE OF LAW, by Jason E. Whitehead. Waco: Baylor University Press, 2014. 253pp. Cloth $49.95. ISBN: 9781602585256.
Reviewed by Keith J. Bybee, College of Law and Maxwell School of Citizenship and Public Affairs, Syracuse University. Email: firstname.lastname@example.org.
We often praise those judges we admire as being impartial champions of the rule of law. The problem, as Jason Whitehead notes in his engaging book, is that we “have no systematic and rigorous way to distinguish between judges who uphold the rule of law and judges who undermine it” (p. 3). We prize legal fidelity in our judges yet we have no widely agreed
upon means of determining what fidelity to law is. As a result, we are left with the suspicion that “the difference between good and bad judges is a matter of personal preference and that the rule of law is a mere platitude designed to disguise the preference as a principle” (p. 3). Whitehead seeks to better define how judges sustain the rule of law, and to counter the suspicion that the only distinction between good and bad judging is the preference for a particular outcome.
As a first step toward these goals, one might argue that we should examine judicial decisions to see if they conform to legal requirements. A rule-of-law judge would be one whose rulings appear to have been dictated by existing law. Whitehead rejects such an “outside in” approach on the grounds that it overlooks judicial motivation. Two judges may arrive at the same outcome in a given case, but one judge may do so on the basis of sincere belief about what the law demands while the other may merely supply a legal rationalization for a position determined on extra-legal grounds. The crucial difference between such judges is not in the conclusions that they reach, but in the different sensibilities and values that each judge brings to the case. Thus, to accurately appraise the judiciary and its relationship to the rule of law, Whitehead calls for an “inside out” assessment of judicial beliefs and ideals.
Whitehead frames his inside-out assessment in terms of social practice. He sees judges as situated in immersive, long-term interactions with the professional legal community and with legal language. The purposes judges acquire through their community and doctrinal engagements are pursued according to shared standards of excellence—a common core of virtues that judges absorb as they enact and advance fidelity to law. All parts of the judicial social practice are bound together into a way of life: it is through the community they inhabit, the language they use, and the standards of excellence they follow that judges generate a meaningful sense of obligation and mission.
Whitehead argues that individual experiences with judicial social practice vary, and “not every judge internalizes the attitude of fidelity in the same way or to the same extent” (p. 26). In particular, Whitehead argues that the differences in overall attitude fall into four different value types: Formalist, Good Faith, Cynical, and Rogue. Whitehead devotes one chapter to each value type (these four chapters constitute the bulk of the book). In each chapter, Whitehead elaborates and examines the components of each value type by drawing on informal, confidential interviews that he conducted with 24 state and federal appellate judges in three different states. The many quotations that Whitehead pulls from his interviews are quite interesting, and they add real depth to his analysis.
Judges socialized in formalist values, Whitehead finds, understand law as an almost military-form of discipline, and are committed to a highly mechanical application of legal language. The beliefs in strict order and mechanical interpretation are bonded to a fervent faith in the righteousness of the formalist ethic. Whitehead compares the rigidity and passion of formalist values to the declaration of a fundamentalist preacher: “God said it, I believe it, and that settles it!” (p. 38). For legal formalism and religious fundamentalism alike, the alternative to [*79] firm conviction is a chaotic free-for-all, with everyone flouting the rules and doing whatever they happen to believe is right.
Judges socialized in good-faith values do not share the righteous zeal of the formalists nor do they share the belief that decisionmaking is a matter of robotic rule-following. Judges with good-faith values are humble about their own opinions and openly reflect on the ways in which personal beliefs may influence the interpretation of ambiguous legal texts. Such judges accept that there will always be disagreement. At the same time, these judges, like the formalists, believe that the law has an ascertainable meaning. For judges with good-faith values, however, legal meaning is not to be found in the unwavering application of rules, but by engaging in reasoned discussion with colleagues who hold different views. Where “formalist values entail a rigid ‘either-or’ approach—either uniform rule-following or interpretive chaos, good-faith values entail a more sophisticated ‘both-and’ approach—both diversity of opinion and principled pursuit of the best legal answer” (p. 74). If judges with formalist values are like religious fundamentalists, then judges with good-faith values are “like mature religious believers who nevertheless struggle with the doubts and difficulties of life” (p. 78).
Further extending the religious analogy, Whitehead finds that judges socialized in cynical values are like “agnostics” who have become disillusioned with the norms and forms of interpretation that “are supposed to anchor the pursuit of legal fidelity” (p. 78). Judges with good faith values work toward the most reasonable account of legal meaning, even as they realize that personal beliefs influence legal interpretation. Judges with cynical values, by contrast, claim that personal belief simply dictates legal meaning in many instances. Such judges may still deploy conventional legal language in their opinions, but they do so “as a smoke screen for political preferences” rather than “an authority higher than those preferences” (p. 91). Formalist and good-faith values project different versions of what legal fidelity means; cynical values question whether law is worthy of any fidelity at all.
Whitehead completes the religious analogy by labeling those judges socialized in rogue values as “atheists” who “actively deny and resist authority” and take an “openly antagonistic stance toward law” (p. 99). Rogue values envision law wholly in instrumental terms. On this view, there is no authority outside the will of judges themselves. As one judge bluntly describes his own decisionmaking, “I start at the end and work backwards” (p. 107). In the rogue world, legal language is merely a tool used to frame personal preferences in more acceptable terms, “a kind of sales technique that is necessary to close the deal” (p. 114).
In the final chapter, Whitehead assesses the relative merits of each value type. Rogue values may play a valuable role in promoting innovation by importing new ideas and approaches that are not contained in existing law. Cynical values introduce an element doubt that not only may humanize the decisionmaking process, but also may expose hypocrisy and opaque reasoning on the bench. These two value types also have the significant disadvantage of undermining law’s authority (a danger that is especially acute in the case of rogue values). The rule of law will ultimately suffer should rogues proliferate or should cynicism spread. Formalist values strongly support the legal authority, and this strong support is a mark in formalism’s favor. Indeed, Whitehead gives some weight to the argument that formalist judging is “the pinnacle of judicial trustworthiness” because of the strict adherence to law that it demands (p. 122). But formalist values also have an important downside: in hard cases, the “rigid attempt to adhere to rules cannot possibly capture the complexity of the law or of the social and political controversies governed by the law” (p. 123). Ultimately, the unwillingness to “tolerate those who follow the law in a different, but still reasonable, manner” leads formalist values to weaken the rule of law (p. 124). Good-faith values are the best of the lot. Judges with good-faith values accept the authority of law, and also admit that rule-following alone is insufficient. Such judges are grown-ups. They “understand both the complexity of the choices [*80] to be made and the need to be guided by appropriate wisdom and prudence” (p. 122).
On the whole, Whitehead’s assessment of judicial values achieves its objectives. He provides a detailed map of judicial norms and beliefs, and he demonstrates that, from the perspective of judges themselves, the distinctions between different modes of judging are a matter of substantive ethical commitment (rather than mere personal preference). Whitehead’s argument has the additional virtue of being well-organized and clearly written. His discussion of judicial values would be a good supplement in undergraduate courses on judicial process, constitutional law, or legal reasoning. In particular, Whitehead’s extensive use of interview material makes his arguments far more accessible to undergraduates than standard selections on judicial decisionmaking from the Legal Realists, Critical Legal Studies, or Ronald Dworkin. Whitehead’s book would also be useful in graduate courses on judicial politics. His social practice model of judicial values resonates with new scholarship on the distinct culture of judging (e.g., Geyh 2016), and provides a good counterpoint to the dominant attitudinal approach.
There are several areas where Whitehead’s argument could be developed. Early in the book, Whitehead notes that his analysis is not about types of judges but about “types of judicial values possessed by judges” (p. 30). “A judge’s attitude in some cases, or on some issues, may fit into one type, while her attitude in other cases, or on other issues may fit into a wholly different type” (p. 30). It is not entirely clear, however, how this view of varying values squares with the social practice model. How are judges simultaneously socialized into multiple and conflicting value types or ways of judicial life? In the language of the religious analogy favored by Whitehead, how can the same judge be a “fundamentalist” on one issue and an “atheist” on another?
Whitehead might also have made further use of his interview materials. In several instances, Whitehead quotes judges who make empirical claims about the way political ideology does (or does not) influence judicial decisionmaking. For example, Whitehead quotes a rogue-values judge who asserts that it is the Republican-appointed judges who adopt formalists values and the Democratic-appointed judges who favor good-faith values (p. 110). Whitehead treats the assertion as an example of how rogue values reduce all of judging to personal preference, but Whitehead makes no effort to test the judge’s assertion against the interview data. Whitehead’s set of 24 interviews is not fully representative (e.g., over two-thirds of his judges were appointed by Democrats) and it would be inadvisable to draw firm conclusions about the influence of partisanship from his sample. Nonetheless, it would have been helpful for Whitehead to indicate whether there was any information in his dataset that lent credence to the judges’ claims.
Finally, Whitehead might have done more to outline his understanding of how the larger rule-of-law system operates. His main focus is on judicial values, but Whitehead also notes that the broader “rule-of-law enterprise” involves the values of others, including citizens and scholars (p. 7). Various points in the argument would have been strengthened had Whitehead spelled out his understanding of how these different groups and their values interact. Consider, for example, Whitehead’s discussion of “motivated reasoning” where “judges reach their decisions based on personal or political preferences but then—because of strong social and professional pressure—they convince themselves that the decision is based on law” (p. 130). Whitehead argues that judges who engage in motivated reasoning fulfill their professional obligations to the rule of law because they “sincerely believe in the legal explanations they give for the decisions they make,” even though their decisions are actually driven by personal belief and closely track the judges’ political preferences. Whitehead claims that such “unknowing rationalization is expected and accepted” (p. 131). Yet without some further discussion of community views and values, it is not clear why the public is willing to go along with judges who cite legal principle yet consistently deliver politically predictable results. A judge may sincerely believe that her [*81] decisions are dictated by law, but if citizens and scholars can easily and accurately deduce the decisions from the judge’s politics, how has the greater rule-of-law enterprise been sustained?
The possibility of further development should not, of course, detract from what Whitehead has achieved. His careful study of judicial values significantly enriches our understanding of how judges approach their work and contribute to the rule of law.
Geyh, Charles G. 2016. COURTING PERIL: THE POLITICAL TRANSFORMATION OF THE AMERICAN JUDICIARY. New York: Oxford University Press.
© Copyright 2016 by author, Keith J. Bybee.