Judges, Critics, and the Realist Tradition

Abstract

In reviewing contemporary criticism of the constitutional decisions of the Supreme Court during the tenure of Chief Justice Earl Warren, Judge J. Skelly Wright1 characterized as the "scholarly tradition" a way of thinking about constitutional law that he found exemplified by the early Oliver Wendell Holmes lectures, the Harvard Law Review's annual Supreme Court forewords, and particularly the recent writings of Professor Alexander Bickel and Professor Philip B. Kurland.2 The judge's critique of the critics raises the question whether the criteria of this "scholarly tradition" are the proper measure either of constitutional law or of the performance of the Supreme Court. Characteristically, questions of constitutional law and questions of the role of the Supreme Court are generally treated as the same thing. This faithfully reflects the tradition of two generations of legal realism -the common core of tradition shared by most scholarship and most appellate judging today. The identity between the law in operation and the role of courts is a premise first year students absorb in such time-hallowed epigrams as Holmes's definition of law as a prophecy of what a court will do in fact,3 and Hughes's "the Constitution is what the judges say it is." 4 It is "the realist school of jurisprudence to which both sides of the alleged controversy over the Warren Court pretend to adhere" wrote Kurland,3 and Bickel devoted a brilliant opening chapter of The Supreme Court and the Idea of Progress to sketching the intellectual and political ascendancy of the "Progressive Realists" in constitutional law.0 But there is more to the scholarly tradition of legal realism than a facile derivation of law from the judicial function. Never a closely