Judicial Decisionmaking and Judicial Review: The State of the Debate, Circa 2009

Charles Kelso, University of the Pacific, McGeorge School of Law
Randall Kelso, South Texas College of Law

Abstract

Abstract for Charles D. Kelso & R. Randall Kelso, Judicial Decisionmaking & Judicial Review: The State of the Debate, Circa 2009 A number of recent books have addressed the topic of how judges go about deciding cases: Richard Posner, HOW JUDGES THINK (2008); Antonin Scalia & Bryan Garner, THE ART OF PERSUADING JUDGES (2008); William Quirk, COURTS & CONGRESS: AMERICA’S UNWRITTEN CONSTITUTION (2008); Daniel Farber, RETAINED BY THE PEOPLE: THE “SILENT” NINTH AMENDMENT AND THE CONSTITUTIONAL RIGHTS AMERICANS DON’T KNOW THEY HAVE (2007); Edward Purcell, Jr., ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITUTIONAL ENTERPRISE (2007). In this article, each of these five recent statements on the topic of judicial decisionmaking are considered, and the books are placed into a broader context of theories on judicial review. As noted in this review, there are four basic styles of judicial decisionmaking: formalism (where literal text is given great weight), Holmesian (often characterized by deference to government action and concern for underlying purposes of the law), natural law (emphasis on judicial precedent and general principles underlying the law); and instrumentalism (great attention paid to alternative social policy consequences of a decision). For conservative instrumentalists, this typically involves greater weight paid to prudential principles of judicial restraint; for liberal instrumentalists, this typically involves greater weight paid to principles of justice or social policy embedded in the law. Placed in this perspective, each of these five books makes a good contribution to legal scholarship, once the predisposition of the author is understood: Posner (conservative instrumentalist); Justice Scalia (formalist); Professor Quirk (Holmesian); Professor Farber (natural law, with a hint of liberal instrumentalism), and Professor Purcell (liberal instrumentalist).