At the conclusion of their dissenting opinion in Dobbs v. Jackson Women’s Health Organization, in which a majority of their colleagues overruled Roe v. Wade and concluded that the Constitution does not protect a right to obtain an abortion, Justices Breyer, Sotomayor, and Kagan reflected on stare decisis and the Supreme Court’s legitimacy. They looked back to the joint opinion of Justices O’Connor, Kennedy, and Souter in Planned Parenthood v. Casey, which thirty years prior had preserved the core holding of Roe based in large part on respect for precedent. Those justices, the dissenters observed, might not have joined the opinion in Roe if they had been on the Court when the issue first arose. Each of them, in other words, would probably have elected not to recognize an abortion right had they been writing on a blank slate. But they were not, and they all understood the potential consequences, for the Court and for the country, of overruling Roe. “[T]hey were judges of wisdom. They would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver.” What they did, the dissenters continued, was leave the Court, the country, and the rule of law better than when they arrived.

The dissenters thus placed wisdom and ideology in opposition. In doing so, whether intentionally or not, they echoed a characterization of the Casey joint opinion offered in its immediate wake. Professor Anthony Kronman called it “an opinion marked by its judicious search for a middle course and wise balancing of principle and precedent. [I]t was judgment, not expertise, that counted ….”Footnote ¹ Kronman made these remarks in the opening pages of a book entitled The Lost Lawyer: Failing Ideals of the Legal Profession, styled as a requiem for a certain conception of the legal profession. That conception was defined by its devotion to what Kronman labeled “the lawyer-statesman ideal” – “the belief that the outstanding lawyer—the one who serves as a model for the rest—is not simply an accomplished technician but a person of prudence or practical wisdom as well.”Footnote ² The ideal was in decline, Kronman contended, and he predicted that its demise would have consequences for our nation. Lawyers would continue to lead, but the profession’s failure to cultivate the requisite characteristics would have consequences. “Like ripples on a pond, the crisis of values that has overtaken the legal profession in the last twenty-five years must thus in time spread through the whole of our political life with destructive implications for lawyers and nonlawyers alike.”Footnote ³

It is difficult to describe Kronman as anything but prescient. For example, Professor Deborah Pearlstein notes just how many of the key players in the alleged misconduct leading to the indictment of former President Donald Trump were members of the bar.Footnote ⁴ So, too, she concedes, were those instrumental in preventing the various schemes from being carried out. But in the conduct of those who encouraged and facilitated Trump, she finds evidence of a professional crisis. Those lawyers, “whose alleged conduct breached a host of rules of professional ethics, in addition to provisions of criminal law—did not emerge from whole cloth. They are the product of a profession that has changed over the past 40 years ….” Pearlstein identifies polarization as the primary culprit. Politically minded lawyers begin to self-segregate in law school, where they join different student organizations. They then clerk for different sets of like-minded judges and from there move into practice in firms with established political identities, transitioning into government service when their party has control. Collectively, this delivers “a clear signal to young lawyers: ideological loyalty is a credential, not a disqualification.” That credential is increasingly important in another professional context: becoming a judge.

Political polarization is not the only force at work. Ours is a culture oriented toward the tangible and quantifiable. Precisely why this came to be is unclear. It may be a product of deep social and intellectual trends, the need to deal with the massive quantities of information that surround us, or the emergence of sufficient computational power to enable inquiry at a scale not previously imaginable. Perhaps a combination of these factors and more. The manifestations are everywhere – moneyball in sports, six sigma in business, testing in education, the central role of economics in policymaking, and an accompanying devaluation of those intangible, unquantifiable, and often inarticulable components of good judgment in favor of that which can be counted or otherwise easily measured.

We can likewise see the effects when it comes to the judicial system. One dimension of this involves the academic study of courts, which has seen a significant increase in quantitative empirical research. Much of this work relies on a flattened depiction of judicial behavior that assumes ideology as the primary driving force. Economically minded scholars provide models of judicial decision-making that purport to reduce it to a formula. Meanwhile, psychologists have demonstrated that judges fall prey to motivated reasoning and cognitive biases the same as the rest of us. Make no mistake: this work is valuable. It provides social-scientific backing to claims made decades ago, first by the Legal Realists and later by members of the Critical Legal Studies movement: law is indeterminate (or at least broadly underdeterminate), leaving judges free (or, in stronger versions, with no choice but) to base their decisions on something else. The something else is often understood to be ideology. Again, this has value. As Professors David Graeber and David Wengrow remind us, “One must simplify the world to learn something new about it.”Footnote ⁵ But we must also remember that simplification is merely a tool. “The problem comes when, long after the discovery has been made, people continue to simplify.”Footnote ⁶

A second manifestation involves the processes of judging themselves, where a distinct – but, I believe, related – simplification has also taken hold. In the decades since Kronman wrote, scholars and judges have worked to further develop and refine methodologies that, proponents contend, will constrain judicial behavior. The most prominent of these, typically associated with the political right, are textualist approaches to statutory interpretation and originalist approaches to constitutional interpretation. Neither involves the introduction of something new so much as an amplification of the seemingly tangible ingredients of legal decision-making. Advocates justify these methods on both ontological grounds (claiming that the methods simply call for a process that is inherent in law) and pragmatic grounds (claiming that, while not perfect, they constrain judges by providing objective targets for analysis). Critics dispute the ontological claim by pointing to the long history of judicial decision-making undertaken in ways that do not employ these methods and deny the pragmatic claim, characterizing the methods as no less manipulable than any other and therefore as mere cover for the implementation of conservative ideology.

Not surprisingly, these changes have been accompanied by a fraying of the consensus that underlies the professional norms and acculturation that also work to shape judicial behavior. The forces at work are not just intellectual. These shifts have occurred in a world in which the institutional arrangements and procedures that serve to channel judicial behavior have become less powerful. For example, in intermediate appellate courts, these changes have been largely tied to what scholars a few decades ago called “the crisis of volume” – the massive increase in per-judge caseloads that began in 1960 and led to reforms that fundamentally changed the nature of the relationship between judges and their work. Apex courts avoided the deluge by gaining control over their dockets. The US Supreme Court, for example, hears considerably fewer cases per year than it once did. Another change involves delegation. Most appellate judicial opinions – the ones that shape the content of the law – are drafted by law clerks, who are typically fresh out of law school, rather than the experienced professionals who hold the appointment. Much of the work at the trial court level – where trials have become an infrequent occurrence – has become bureaucratized. In sum, the nature of judges’ engagement with their work has shifted alongside changes in the conception of the nature of that work itself. The effect has been the devaluation of wisdom.

Consider, for an example that will serve to illustrate portions of the discussion throughout, Rucho v. Common Cause, in which the Supreme Court concluded that challenges to election districting maps based on claims of excessive partisan gerrymandering present “political questions” beyond the power of Article III federal courts to entertain. At issue were congressional maps from North Carolina and Maryland, both of which had been engineered to achieve maximum partisan advantage. Chief Justice Roberts’s majority opinion was careful to note that the Court was not condoning excessive partisanship in gerrymandering and acknowledged that such gerrymandering can generate “results that reasonably seem unjust,” and even “incompatible with democratic principles.” Nonetheless, the majority concluded that it is beyond the federal judiciary’s mandate to do anything about it. Article III of the Constitution extends the federal judicial power only to “cases” and “controversies,” which in turn means that the power extends only to matters “historically viewed as capable of resolution through the judicial process.” One criterion for inclusion in that category is that there be “judicially discoverable and manageable standards for resolving” any such claims.

The crux of the majority’s reasoning was that, notwithstanding its efforts over several prior cases to do so, the justices had not settled on “clear, manageable, and politically neutral” criteria by which to evaluate partisanship in gerrymandering. The basic problem, in the majority’s estimation, is that claims asserting excessive partisan influence “invariably sound in a desire for proportional representation.” But, the Court maintained, that can’t serve as the baseline. There has always been gerrymandering designed to gain partisan advantage – the practice takes its name from Elbridge Gerry, a signer of the Declaration of Independence, delegate to the Constitutional Convention, and member of the first Congress – and so the question can’t be whether the practice is permissible at all. It must therefore be a matter of degree, not “did partisanship play a role?” but rather “did partisanship play too much of a role?” And a notion such as “fairness” provides insufficient guidance, because there are too many conflicting criteria that might bear on the question. Does fairness turn on the number of competitive districts? Or should proportionality be the dominant consideration? Or adherence to “traditional” districting considerations such as existing political boundaries or the protection of incumbents? None is obviously correct, and selecting from or otherwise navigating among them requires resorting to political rather than legal considerations. Even were it possible to do so, the majority continued, it would then be necessary to formulate some sort of yardstick by which to measure when the departure from the baseline becomes excessive. And that is simply not the sort of question the law is equipped to answer.

The Chief Justice’s rhetorical tactic is to focus on the trees rather than the forest, to create the appearance of analytical rigor by breaking the problem down into its component parts. “Resolving the claim presented in this case would require us to answer all these subsidiary questions,” the gist of it runs, “and look at how difficult and slippery each of them is. Look at how hard it is to weigh these interests against one another. No one could possibly want judges to be the ones doing so.” It’s a trick he has used before. In Caperton v. Massey,Footnote ⁷ in which the Court held that the constitutional due process requirement compelled a state-court justice to recuse himself from a case involving an individual who had made a substantial donation to his campaign, the Chief Justice’s dissent criticized the majority for failing “to provide clear, workable guidance for future cases.” He emphasized the point by listing forty questions (“only a few uncertainties that quickly come to mind”) the majority did not address.Footnote ⁸ For Kronman, as we will see, a core aspect of practical wisdom involves mediating among just the sorts of incommensurable considerations at play in these cases. For Roberts, such an exercise of judgment is precisely what courts should avoid.

But the fact that it can be difficult to tell precisely when a line is crossed does not mean that one can never tell that it has been crossed. Justice Kagan’s dissent in Rucho claims the same with respect to partisanship in gerrymandering. She asks and answers the question as follows: “How much is too much? At the least, any gerrymanders as bad as these.” Kagan does not put it this way, but one can imagine the problem as involving a version of the Sorites paradox, which arises in situations involving categories with vague boundaries.Footnote ⁹ A common example involves the seeming impossibility of determining the point at which an accumulation of grains of sand becomes a “heap” or a “pile.” No single grain ever seems significant enough to tip the balance, and maintaining a focus at that level can lead one to conclude that the line separating “not heap” from “heap” can never be crossed. But we do not have to know precisely which grain of sand triggered the leap across the conceptual boundary to know, when we stand before a pile of sand, that that is what it is. We need not even believe that asking which grain was “the” grain is a question that makes sense. Indeed, for a point that Justice Kagan does not make, even someone as skeptical of judicial intervention in the drawing of electoral boundaries as Justice Felix Frankfurter acknowledged that differences of degree are sometimes so great as to become differences in kind.Footnote ¹⁰ To shift metaphors, the majority is so focused on the trees that it fails to see that the forest is in trouble: “The practices challenged in these cases imperil our system of government.”

This book aims to provide a broad survey and synthesis of the developments that have contributed to the trends Kronman identified. I approach judging both in a narrow sense and more broadly as an activity set within a larger social and institutional ecosystem, and seek to identify and assess how changes within that ecosystem have come to affect an activity that so often appears to be, and is analyzed as, the conduct of individuals. The analysis is thoroughly, and I hope responsibly, interdisciplinary. In addition to legal theory, I draw heavily on work done by philosophers, political scientists, and psychologists. While I sometimes necessarily paint with a broad brush, I try not to outrun the evidence, and to qualify my conclusions appropriately.

Doing so is consistent with the other of the book’s major thrusts, which is to underscore the centrality of judgment to the enterprise of judging. The developments noted earlier have led to the continuing diminution of judgment’s role and perceived significance, and to a considerable degree, its replacement by what are, at least superficially, more algorithmic-seeming methodologies. I believe these trends to be misguided, at least when contrasted with the appropriately formed and directed exercise of good judgment. Recentering the role of judgment in judging entails building on efforts, many of which have been undertaken under the label of “virtue jurisprudence,” to identify the necessary characteristics of good judges. It also involves providing an intellectual framework within which to situate that work, including by expressly connecting it to the basic social function that judging is designed to serve. And some of it is simply contributing to, and thereby shifting the framework of, the discussion about judging as part of an effort to generate a salient professional consensus that recognizes the existence and importance of habits of mind that are independent of ideological and methodological commitments.

The book unfolds as follows: Chapter 1 begins with basic questions about the functions and nature of courts, in an effort to set a rough baseline against which to make assessments. It accordingly outlines and unpacks what I label the “standard model” of judging, an intuitively appealing, idealized depiction – involving independent judges applying preexisting legal standards in the context of adversary proceedings that result in the dichotomous declaration of a winner and loser. Reality necessarily falls short of satisfying the model for several reasons. One is that the standard model’s components have no settled meaning but are instead the object of contestation. Judicial independence, for example, can mean different things depending on one’s view or who or what it is that judges ought to be independent of. Another is that human institutions are rarely capable of living up to theoretical ideals. As the Legal Realists demonstrated (at least in the typical telling of the story), whether because of the limits of language, the limits of foresight, or the fact that even clear legal rules sometimes come in conflict with one another, disputes often arise in which preexisting rules do not, and could not, exist in any moderately strict sense of the idea. Something else must therefore account for the resolution of those disputes. Finally, there is the fact that courts are ultimately functional institutions. They exist not to comply with some idealized model of government but to serve ends that will differ from one historical era to another, from one government to another, and even within a single system. What unites them is that they exist, in the first instance, to resolve disputes. As Professor Martin Shapiro has argued, this means that the one truly universal feature of judicial institutions is what he calls the logic of the triad – two parties with a dispute turn to a third. But, as Shapiro points out, there is an inherent instability because at the moment of decision, the triad collapses into what the loser is apt to perceive as two against one. Resisting this perception is critical. Indeed, Shapiro opines that “[a] substantial portion of the total behavior of courts in all societies can be analyzed in terms of attempts to prevent the triad from breaking down into two against one.”Footnote ¹¹ Much of the courts’ legitimacy depends on fostering an image of being true neutrals.

Chapter 2 builds on a portion of the discussion from Chapter 1 concerning threats to the perception of neutrality. The Realists demonstrated that factors other than law, narrowly conceived, drive judicial decision-making. The Critical Legal Studies movement pushed this point, claiming, in many of its manifestations, that all of law, including judges’ decisions, is political. A subset of political scientists developed the attitudinal model of judicial decision-making out of this understanding of law as politics. Empirical work conducted under the banner of that model has, in fact, revealed a correlation between judges’ ideology and the ideological valence of their decisions even using highly reductionist measures of ideology. The chapter also surveys refinements of the attitudinal model as well as critiques. Correlation does not mean causation, for one, and it may be that some other mechanism is at work. Nor is it clear that a relationship between politics and decision-making is entirely improper; the law sometimes leaves space for the incorporation of value judgments.

Chapter 3 continues the work of investigating what, other than law (again, narrowly conceived), might produce judges’ decisions by considering various psychological phenomena that can distort thought. It first explores work illustrating judges’ susceptibility to motivated reasoning, a tendency to interpret available evidence in a way consistent with reaching one’s preferred result. Those results might, but need not, be political in nature, and the chapter also explores recent work positing that a desire to maintain the esteem of their salient audiences – often social, professional, and political peers – may provide a source of motivation distinct from ideology. The chapter also surveys research into the influence of heuristics and biases on judicial decision-making. It concludes by considering work that illustrates our difficulty in recognizing our own biases. Simply put, people find it easy to see the effects of bias in other people’s judgments and decisions, while at the same time thinking themselves to be entirely free of such influences. In total, the work surveyed in Chapters 2 and 3 provides social scientific support for and adds depth to the Realist claim that nonlegal factors account for a nontrivial portion of judges’ decisions.

Chapters 4 and 5 shift the focus to the legal system, whose architecture reveals implicit recognition of both the influences covered in the Chapters 2 and 3 and the resulting need to provide mechanisms to counteract them. Chapter 4 considers features internal to the system, including the adversarial process, the doctrine of precedent, and the practice of justifying decisions via written opinions. Chapter 5 turns to external constraints, including ethical standards, judicial selection processes, and media coverage. Both chapters examine the ways in which the strength of the constraint provided by these mechanisms has eroded over recent decades. In short, wherever the line between proper and improper determinants of judicial decision-making might lie, the forces channeling judges to the proper side of that line no longer appear to have the same force as they once did.

Chapter 6 considers a final source of constraint. Because, as the Realists demonstrated, law cannot be entirely reduced to verbal formulations, much of it exists as a sort of dark matter. Various observers have affixed different labels – situation sense, craft values, professional norms – to describe the notion that legal thinking, and therefore legal decision-making, is driven as much by shared understandings of how things are done as by rule. The effectiveness of these shared understandings naturally depends on their being shared, and here, too, we see weakening. In part, this is a product of changes internal to the profession. The rise of the Federalist Society and, to a lesser degree, the American Constitution Society have helped foster an increasing divide, which largely reflects the high degree of polarization present in society more generally. Other forces are also at work. Ours is a society that is skeptical of tacit knowledge of the sort that forms the law’s dark matter. Cost-benefit analysis and economic-based thinking more generally drive policymaking and crowd out consideration of the nonquantifiable. We prefer metrics-driven assessment to reliance on expertise. And this, in the estimation of Iain McGilchrist, is symptomatic of a society that has habituated itself to dealing with information in an isolated, decontextualized way that emphasizes express, linear, and sequential reasoning rather than in a holistic fashion of the sort that facilitates insight and intuitive problem-solving. The majority opinion in Rucho exemplifies this sort of thinking.

Chapter 7 focuses on two additional mechanisms for channeling judicial behavior. The first is specialization, which promises to harness expertise to restore some of what has been lost. Though further specialization may be inevitable, as we will see, there are associated costs. The second is the possibility that methodology provides an effective remedy to the erosion of the constraints explored in the Chapters 4–6. Methodologies – devices for getting decision-makers to focus on certain features of a situation while minimizing or disregarding others – are a familiar and useful tool in law. And so the idea seems compelling: if the system’s traditional mechanisms no longer provide an appropriate level of constraint, then the solution is to supply judges with a more precise decisional template. Viewed in that light, it is not surprising that the level of interest in methodological frameworks has risen as the forces that have historically provided constraint have receded. The most salient of these are originalism and textualism, both of which serve as responses to the demise of traditional sources of discipline and as efforts to shift the boundaries of permissible legal argumentation. Both also resonate in a general way with the broader social move toward a preference for the tangible and quantifiable by depicting legal reasoning as a fundamentally algorithmic process that aims to extract a fixed and discernable meaning from legal texts, a move most clearly apparent in efforts to use corpus linguistics (the computerized effort to extract the linguistic meaning of terms from a large database) to guide statutory and constitutional interpretation. As noted earlier, proponents defend these approaches on both ontological and pragmatic grounds, sometimes arguing that a proper conception of law requires resorting to such methodologies, and other times suggesting they are appropriate because they best constrain judicial behavior. Both approaches claim relative certainty, objectivity, and the diminishment of the perceived subjectivity inherent in traditional approaches to judging. Yet there are reasons to believe that methodological frameworks cannot deliver on their promises. To tackle first the pragmatic justification, no methodology can constrain a judge consciously motivated to reach a certain result. And it is but a small step from there to the conclusion that methodology will likewise fully constrain the judge unconsciously motivated to reach a result – a conclusion supported by the seemingly opportunistic use of originalism by justices who claim adherence to the approach. Even if we assume an appropriate lack of conscious or unconscious motivation, most judges lack the time, resources, and cognitive bandwidth to faithfully and consistently implement such an approach in cases of even moderate complexity. There will be errors, but they will likely be skewed in one ideological direction. (Hence the general understanding that textualism and originalism are both conservative methodologies.) The ontological justification also falls short. To regard a theoretical ideal as inherent in the workings of a legal system is to fall prey to a form of utopianism. Institutional designers are not primarily interested in theoretical purity or elegance but rather in creating a system that can accommodate all the inconsistent and incommensurable goals and values that a society holds. Zealous methodological commitments can lead judges to regard fidelity to theory as an end in itself, rather than as a tool to accomplish the goals of government. This in turn can lead to a tendency for adherents to invoke the rhetoric of ontological necessity, claiming that their approach is the only proper approach, such that judges with whom they disagree are not merely wrong but that they are acting illegitimately. Among other things, such accusations work to undermine the triadic logic central to the entire endeavor.

The analysis to this point having established that law, even when accompanied by process and methodology, cannot always reliably take us the entire way to the resolution of specific disputes, it then turns back to the person of the judge. Judging inevitably draws upon judgment. It follows that we should seek to have judges with good judgment. Chapter 8 explores what that might mean and what we might look for in identifying judges who have that characteristic. The chapter surveys work developing the idea that judicial character matters and emphasizes two characteristics – practical wisdom and intellectual humility – that I contend should be central to a character-based approach. The latter has received comparatively little attention in past treatments, and I draw upon a growing body of work in psychology and philosophy that investigates the concept of intellectual humility and its contribution to thought and decision-making. The chapter concludes by outlining ways in which a renewed emphasis on judicial character might be implemented. A brief conclusion follows.