I read Holmes as not only arguing that judges decide for policy reasons, but also that judges should do so. And clearly, today, judges often articulate policy reasons for their decisions.

Still, I continue to find it interesting that, though we've clearly moved a long way from Holmes's day - such that courts today often self-consciously make law and generally abhor "authority from [] antiquity," as Eben wrote - we haven't quite done a 180 degree turn. As Jesse has pointed out, legal fictions remain, and it seems to me that they are most prevalent in cases implicating Constitutional cases, where we're stuck within the confines of an ancient document (and whatever stretching we can give it, which has proven to be much). One could argue that a "Holmesian court" would not insist that a motion for judgment as a matter of law be made prior to the jury's retirement, to take Jesse's example. Another example is the laborious process of determining whether a 7th amendment right to a jury trial exists. The Terry (Chauffers, Teamsters v. Terry) majority held that a historical analysis into whether that type of suit existed in the 18th century was required, plus an inquiry into the type of relief sought, while a Brennan concurrence argued that only the relief sought was relevant. But it is striking that no justice argued from policy (e.g., whether all plaintiffs should have the right to a jury trial for dignitary reasons, whether no plaintiffs should for reasons of efficiency, whether it should depend on the type of case because certain types of claims are more suited to juries, etc.). These are examples where I see courts today feeling bound by the language of the Constitution, and where policy reasons for coming out a certain way, if they exist, are kept hushed. Did Brennan vote that the plaintiffs had the right to a jury trial because they were mere union laborers who would probably benefit from a jury trial? Quite possibly. Would he have said so? No, not in this type of constitutional case. I think.

The saying that "The Constitution means what five votes... say it means" is true where Constitutional provisions admit of debate and false where they do not. While the very question of whether a given provision even admits of debate is a question subject to change with circumstance and time, there are still Constitutional provisions today that, at least right now, seem so definite and certain that no judge would feel free to reinterpret them, even if he felt it were warranted. The Constitution may not derive authority from antiquity per se, but the effects of being bound by the Constitution are, as outlined above, sometimes similar to the effects of being bound by a Blackstone or a Coke, as 19th century judges felt themselves to be. My question is, do we want a radical neo-Holmes (certainly not Holmes himself, because he presumably would think this a terrible idea) to come in and tell us that "The Constitution means what five votes say" is more than a clever line that rings true, but rather is a basic principle that ought to be up front and clear in judicial opinion-writing, because that's what judges do anyway? And should we also be told that even the clearest Constitutional provisions oughtn't be followed where judges find that there is no good policy rationale for them? We're no longer in the 19th century by any stretch, but judges today, while acknowledging their own law-making ability, probably don't believe that it extends that far.

-- MichaelBerkovits - 22 Jan 2008