Personal Positivism

In public remarks last year, Justice Kagan took a position on what the law is not. “If one judge dies or leaves a court, and another judge comes in, and all of a sudden the law changes on you,” Kagan argued, then, “you know, that just doesn’t seem a lot like law.” This basic view is widespread, even commonplace.

Yet we all know that changes in judicial personnel do in fact yield major legal transformations. So while Kagan’s comment may reflect an attractive moral view of what the law ought to be, it doesn’t well describe what law actually is.

In a draft article (“A Law Unto Oneself: Personal Positivism and Our Fragmented Judiciary”), I take seriously the idea that the personal rules of individual judges constitute the law. This point is usually covered over by other features of legal practice, such as frequent agreement among judges and personal rules directing convergent behavior. But recent events help reveal the law’s personal foundations.

Seeing the fundamental role of judges’ personal rules is a bit like removing a computer’s casing and looking at the wires and circuit boards that lie inside: the appearance may be strange—it “just doesn’t seem a lot like” a computer, to use Kagan’s words—but the internal workings are closer to the computer’s essence.

To a great extent, legal practice already recognizes as much. In cases on everything from the Second Amendment to Chevron deference, sophisticated advocates home in on the expressed views of specific justices—even if those views are found in lower court rulings, dissents, or law review articles. Court opinions often follow the same sources. And commentators frequently measure the rise of methods like textualism and originalism by counting heads.

This personalized view of the law addresses some of the most fundamental controversies facing our legal system. It counsels that there is still genuine law in contested cases, that the law of the United States is now largely defined by a conflict between two groups of judges, and that court reformers should harness judicial individuality rather than ignore it.

While this project has already benefited from a lot of comments and conversations, it is still in draft. Additional thoughts are most welcome!