Hugh R. Jones lecture at Albany Law School.

AuthorLevine, Howard A.

March 31, 2003

When I went on the Court of Appeals, I, like so many other new members of the Court, turned for guidance to Judge Jones's 1979 Cardozo Lecture at the Bar Association of the City of New York, Cogitations on Appellate Decision-Making. (1) Rereading Cogitations just now confirmed my initial impression that it contained some of the best descriptions of the qualities of an ideal high court common-law judge. First, the quality of utter neutrality. (2) Such a judge approaches a case with "no predetermined destination ... with no prior commitment to its outcome." (3) Second, the quality of institutional loyalty, always keeping in mind "the best interests of the Court and of the public perception of the institution as I understand them." (4) Third, the quality of applying "objective, rigorous analysis" because, among other things, Judge Jones believed that "lilt serves further to reduce the risk of result-oriented decision-making." (5)

Finally, Cogitations expressed Judge Jones's commitment to the common law process of gradual, incremental development of the law "through case-by-case evolution and refinement." (6) He was convinced from his own judicial experience "that judges lack the competence or clairvoyance to anticipate the implications and ramifications of broad announcements and as well the wisdom to formulate them." (7) These thoughts were not novel, as the Judge acknowledged, (8) However, I have not seen them any better expressed.

Reading Judge Jones's opinions is equally enlightening with respect to other basic characteristics of the common law process of judging. Consciously, I suspect, Judge Jones's writings exemplify the "Grand Style" of decision making and opinion writing described by Karl Llewellyn in his last work on the judicial process, The Common Law Tradition. (9) I say consciously because Jones served under Chief Judge Charles D. Breitel, (10) who publicly expressed his admiration for Llewellyn's book and acknowledged its influence on his judicial approach. (11) In Jones's opinions, one can see how he skillfully used analogical reasoning in carefully examining the fact patterns and weighing the holdings of the precedents. (12) He then employed the rigorous interpretive analysis he mentioned in Cogitations to identify the underlying principle, standard or purpose best explaining or unifying the precedents at a relatively low level of abstraction or generality. (13) Then, he applied that narrow generalization to the case at hand to determine what outcome or which of the alternative rules of decision best fit with the operative facts of the case and the social realities of the type of dispute. (14)

Finally, again as he stressed in Cogitations, Judge Jones wrote the decision narrowly, focusing on the operative facts to limit the generality of the holding and to instruct the bench and bar on its reach. (15)

Judge Jones also followed the common law tradition in statutory construction and constitutional interpretation. (16) That is, the use of analogical reasoning from prior cases construing the same provision under similar circumstances and the focus on the underlying normative purpose of the provision, much like the search for a unifying principle in the precedents in pure common law judging. (17) His style in Constitutional adjudication was much like his mentor at Harvard Law School, Justice Felix Frankfurter, (18) and that of Justice John Marshall Harlan. (19)

Rereading Cogitations also brought to mind another important factor in considering the art of judging: the influence of one's professional or personal experience before becoming a judge. In Cogitations, Jones reflected upon what he learned from a highly successful career as a practicing attorney (20)--a counselor at law--bringing to the court and the conference table his knowledge of the impact of decisions upon the practical aspects of the practice of law. (21) He stressed how imperative clarity and precision in judicial writings were to serving the needs of the practicing bar. (22) Indeed, he crafted his opinions in a way specifically to serve that purpose. (23) Of course, the beauty of a collegial appellate court is that its diversity permits all the judges to benefit from the life and professional experiences of each of its members.

My most influential prior professional experiences were those as a prosecutor and then as a family court judge during the 1960s and 1970s. Those were years of tremendous social turmoil as well as rapid change in the law. Thanks to Albany Law Professor Peter Preiser's work in authoring the 1968 Preliminary Report of the Governor's Special Committee on Criminal Offenders, (24) on which he served as the Executive Director, I learned of the concept of anomie-public unrest caused by the widespread perception that society's norms are not being enforced. (25) During that era, I also became sensitive to the converse of anomie--it's flip-side, if you will--that is, societal unrest attributable to the view that the laws are either unjust or unjustly enforced.

Both forms of social unrest were widespread in those years. Youth saw injustice in the Selective Service Law under which they or their friends were forced into military service in an unjust war in Vietnam. Young African-Americans perceived injustice in the pathetically slow implementation of Brown v. Board of Education, (26) and in the failures to achieve other social reforms through the passive resistance strategy of the first generation of leaders of the Civil Rights Movement.

On the other hand, much of conservative America was outraged by a spate of Supreme Court decisions, starting with the Constitutionalization of state criminal procedures under which the exclusionary rule was applied to searches and seizures, right to counsel, confessions and suspect identifications in state prosecutions. (27) Salt was further rubbed into the wounds by the school prayer cases (28) and Roe v. Wade. (29) It did not help matters that dissents in those case--notably by Justices Harlan (30) and Byron White (31)--demonstrated the majority's poor craftsmanship and the lack of support for its results in existing legal sources.

While the militancy of social turmoil of that era has surely subsided, the aftermath has been a profound skepticism concerning the capacity of appellate judges to adhere to the rule of law model Judge Jones subscribed to--of neutrality and objectivity and of shunning result-oriented decision making. (32) To be sure, skepticism concerning the judicial process in America has existed for at least a century. It was a dominant theme of Oliver Wendell Holmes' 1897 lecture, The Path of the Law. (33) And certainly there was widespread skepticism about the neutrality and objectivity of the Supreme Court from the turn of the 20th century until the mid-1930s in striking state and federal social welfare legislation and regulation of business. (34) But except for a few of the most extreme voices of the legal realist movement, the criticisms were that the Supreme Court and the early formalists Holmes criticized were deviants from the true common law tradition. (35) Today, however, the skeptics see appellate judging as inherently non-neutral and non-objective, and completely indeterminate. (36)

This more comprehensive skepticism has existed in the academic legal community for more than two decades, in one form or another. However, I attribute the lack of those critics' success in dominating the legal culture to their failure to offer any credible systematic alternative theory to guide judges who, after all, have to decide cases brought before them to resolve the litigants' disputes and to give some guidance to lawyers advising clients on how to avoid similar disputes in the future.

More portentous is the outspoken skepticism now expressed by two hugely influential sitting jurists in disdaining common law judging, Justice Antonin Scalia (37) and Judge Richard Posner. (38) Moreover, in contrast to those academic critics, each of these jurists has proposed an alternative methodology to the common law tradition.

Justice Scalia was appointed to the Supreme Court in 1986. (39) His profound skepticism toward the common law methodology appears in judicial opinions and in two lectures, his Holmes lecture in 1989 at Harvard Law School entitled the Rule of Law as a Law of Rules, (40) and his 1997 Tanner lecture at Princeton, A Matter of Interpretation: Federal Courts and the Law. (41) He believes that the common law approach gives judges unbridled discretion to manipulate the relevant authoritative legal materials in order always to impose their own political and policy predilections. (42) Justice Scalia is convinced that the common law method destroys rule of law values and violates separation of powers when applied to issues of statutory and constitutional law by permitting judges to frustrate the will of the people as expressed by their elected legislative representatives. (43)

Scalia proposes a concededly formalistic alternative judicial methodology, which he believes will be far more determinate and constraining. (44) All holdings--those based on decisional, statutory or constitutional sources--will be expressed in broader generalizations. (45) "For when, in writing for the majority of the Court, I adopt a general rule, and say, 'this is the basis of our decision,' I not only constrain lower courts, I constrain myself as well." (46)

As many of you heard brilliantly described just one week ago in this venue at a program of the New York State Federal Judicial Council on the Use of Legislative History by State and Federal Courts in New York, (47) the Scalia formalistic approach to statutory and constitutional issues purportedly limits judicial discretion by applying the overlapping doctrines of textualism and originalism. (48) That is, the wording of the provision at issue will be read plainly and applied as a rule of general application. (49) The...

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