To recap for anyone not lucky enough to be a New Yorker: for the last few months, leftists in the state have been fighting a fierce battle with Governor Kathy Hochul over her decision to nominate a conservative judge, Hector LaSalle, to lead the Court of Appeals, New York’s highest court. Hochul lost the first (and possibly last) skirmish in that battle, as the State Senate’s Judiciary Committee voted not to send LaSalle’s nomination to the floor for a full vote, though it remains possible Hochul will sue the State Senate to try and force that vote.
LaSalle’s initial defeat is good news for anyone who wants to halt the Court of Appeal’s recent rightward drift. The judge’s record indicated he would rule in favor of prosecutors and police, and against defendants and suspects; in favor of corporations, and against unions; and that his positions on issues from consumer protection to domestic violence to immigrant rights were indistinguishable from those held by a Brett Kavanaugh or Amy Coney Barrett.
As nice as it is to stop a conservative judge, there’s a larger importance to the LaSalle nomination and (hopeful) defeat, one that is relevant to our national fights over judges, and even to how we think and talk about the law. The people pushing LaSalle were also pushing the false, but terribly common, idea that law is a neutral body of rules and precedents from which certain truths can be divined, and certain rulings naturally flow. In this reading, the statutes and judicial rulings that comprise the law are different from essays, novels, films, the Bible, or other texts, all of which lend themselves to multiple, equally valid interpretations. Law is special, akin to mathematics, easily knowable and usually certain. LaSalle’s defeat represents a defeat of this false ideology.
This lie, indulged in by Republicans and Democrats both, is perhaps the most destructive one in our national discourse, and all too often the excuse for why we can’t have a society that cares for everyone. It’s a lie with a long history, undergirded by seductive philosophical musings and parroted by powerful parties with nefarious vested interests.
It’s also in direct competition with another school of thought that sees law more realistically, as the product of flawed humans being wielded by other flawed humans. LaSalle’s critics may not have been versed in this philosophy called legal realism, but they intuitively knew that judges who rule for the powerful and against the oppressed may do so for reasons found in their own heads, not in any statute or decision.
LaSalle’s defenders framed his record in a way that will be familiar to anyone who has closely watched Supreme Court confirmation battles. When critics pointed to the awful real-world consequences of many rulings he supported, we were told that such rulings were just “procedural” or that LaSalle was, sadly, powerless to rule otherwise, so constrained was he by the iron shackles of precedent. To take one example, LaSalle’s vote to allow Cablevision to sue its union workers personally for union activity undertaken during a labor struggle was excused as a decision about mere process. Don’t you get it?, cried Hochul and her minions. Law is complicated! Sometimes injustice must be sanctioned, because that’s how law works! How naïve of you to think otherwise!
Hochul and her allies didn’t engage on the substance of LaSalle’s cases—who won, who lost, and what happened. Instead, their apologetics emphasized the impersonal processes of law, the alleged rules of the game, the highly technical nuances that laypersons just couldn’t understand. In this, they drew inspiration from what is probably the dominant theory of law today among academics: so-called “legal positivism,” and specifically the version thereof popularized by philosopher H.L.A. Hart in his 1961 book The Concept of Law. Nothing better explains the defenses of LaSalle than legal positivism.
Legal positivists believe that law can be accurately determined to a high degree by review of statutes and decisions. Individual judges are of minimal importance, their role reduced to an intake of precedent and an output of analysis. Legal positivism is not concerned with the social, cultural, or psychological dynamics that led to the creation of any given law or judicial decision—the focus is on the process by which law is created, not the reasons for its creation. In this sense, legal positivism is a theory that discourages looking beyond the textual documents that comprise a legal system. All you need is right there on the page.
Hart himself believed most cases were “easy,” and required minimal judicial creativity. When John Roberts told Congress that the job of a judge is akin to an umpire, calling balls and strikes, he was tipping his hat to legal positivism.
Legal positivism is a harmful philosophy, not least because it claims neutrality in the form of deference to existing “rules.” But of course, that’s wrong, because the rules themselves are ideological, written by the powerful to protect the powerful. LaSalle’s critics have implicitly understood this. They may not have known it, but by focusing on the consequences of his rulings, and arguing that LaSalle could and should have ruled differently, the anti-LaSalle coalition was standing up for legal realism, and against the positivists.
“Law is what the judge had for breakfast.” This old quote—usually attributed to the late legal philosopher and judge Jerome Frank—has alternately been used by the enemies of legal realism to highlight the supposed radicalism of this school of legal philosophy, or by the most radical realists themselves, to boil their ideas down into one pithy phrase. In that sense, it is sort of the “Defund The Police” of jurisprudence, embraced by both its proponents and their worst critics.
Everyone, though, agrees on what it is means. In sum, a judge’s rulings do not emanate from careful study of precedent and statute, which will allow for only one “correct” ruling. Rather, judges are human beings (one of Frank’s greatest works is called “Are Judges Human?”) with their own biases, predilections, histories, neuroses, and yes, ideologies, and their rulings—what we call “law”—are a mishmash of all those things stirred up and spewed across the page. Even what the judge had for breakfast factors in (something that turns out to be quite literally true). Law has no gravitational center—it is whatever the powerful person in the robe decides, for whatever reasons they decide it.
The funny thing is that pretty much every attorney who has actually practiced in a courtroom accepts the general precepts of legal realism (which is the progenitor of modern theories like critical legal studies, or Marxists analyses of law). Judges often make wacky rulings. They aren’t usually high-profile—maybe no one outside of the courtroom will ever even know about them—but they are vitally important to the litigants being ruled over. Any practicing lawyer can tell you about the cases they knew they lost the second the judge opened their mouth, before the evidence was presented or legal arguments made, because the judge decided they liked one side and didn’t like the other (and this is a mild example—imagine the judge ruling on the riot his wife helped start). This is a reality of litigation.
But when lawyers leave the courtroom and ascend to the halls of power and/or the ivory towers, they suddenly become great defenders of this immense, alienating system we call law, and legal positivism gives them the tools to defend it. There is a great desire to believe that law is larger than individuals, that it is a system we can trust and that we can “know” in an epistemological sense. If the process is fair, perhaps we won’t be so angry after it chews us up and spits us out.
Nowhere does this ideology become clearer than during fights over judicial appointments. Any given judge’s defenders, conservative or liberal, strive to cast their preferred judge as the “neutral” choice, the one who will not “legislate from the bench” (a literally meaningless phrase), but will instead pull out their trusty old trowel and brush and excavate until the correct answer—of which there is only one—reveals itself. This is how the law maintains its legitimacy in the eyes of the public. Judges, we are told, are not politicians but archeologists, and do not create but only reveal. This has been the trope embraced by the LaSalleians, just as it was the trope of the Kavanaugh partisans, the Coney Barrett boosters, the Alito enthusiasts. (Indeed, Ruth Bader Ginsburg’s absolute refusal to acknowledge that perhaps it might be better for her to retire under a Democrat than a Republican is a very legal positivist framework, as it eschews politics in favor of some nebulous judicial neutrality.)
That this is such clear bullshit is supremely frustrating. One wonders if Kathy Hochul somehow missed the recent loss of the alleged “right” to abortion, on the books for almost 50 years. A result like that should call into question the idea that law is stable, knowable, and easily grasped.
Understand—there is no correct answer to the question of whether the Constitution recognizes a right to abortion. Rather, there are schools of judicial interpretation—which are always and without exception embraced by judges to give legal weight to that judge’s preexisting ideology—that will find one way or the other. When the Supreme Court has a certain number of one sort of ideologue, abortion will be a constitutional right. When it has the other, it will not.
None of LaSalle’s critics know why he ruled against union workers, or in favor of phony “crisis pregnancy” centers, or to allow prosecutors to strike dark-skinned women from a jury (yes, he ruled this way). It doesn’t matter. What matters is that these decisions protected the powerful at the expense of the powerless. If your ideological leanings involve uplifting the powerless, you should not want a judge who would rule in this way, no matter his excuse for doing so.
It is a huge credit to LaSalle’s critics that they focused their attack on the outcomes of rulings rather than LaSalle’s alleged judicial philosophy, or his “experience,” or respect for precedent. Precedent is not real—it’s an excuse for a judge to do what they were already determined to do, something rightwing judges understand well.
We should never trust someone who claims that law is independent from ideology, or from politics, or from how a judge feels about dark skin or unions or abortion. Law is politics practiced in a courtroom instead of a ballot box. Hector LaSalle is as much a politician as his benefactor, Kathy Hochul. And if you wouldn’t vote for LaSalle to represent you in a legislative body, there’s certainly no reason to want him to be a judge, no matter what excuses he proffers for the ills he has done.
