Constitutional Rhetoric

For close to a century, students of judicial behavior have suggested that what judges think is not altogether the same as what they say. Within the legal academy, this claim has long been associated with legal realists who have argued that the formal legal rules explicated in judicial opinions are at least partly epiphenomenal, masking the influence that the personal characteristics and dispositions of adjudicators exercise over legal outcomes. Political scientists have argued, variously, that such outcomes are determined by ideology, social background, or political, professional, or other institutional constraints. The notion that at least some “extralegal” factors influence judicial decision making is sufficiently intuitive and well established to be regarded as a fact. It is fair to expect, moreover, that such factors wield still greater influence in close cases of constitutional law, and particularly in cases involving constitutional rights. The outcomes of such cases are tightly bound up with deep and fundamentally divergent political commitments and social values. A vast and growing literature explores these and related issues