Washington University Law Review

Volume 1971
Issue 2 Symposium: Courts, Judges, Politics—Some Political Science Perspectives

January 1971

Judicial Myth and Reality

Wesley G. Skogan

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Recommended Citation
Wesley G. Skogan, Judicial Myth and Reality, 1971 Wash. U. L. Q. 309 (1971).
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 JUDICIAL MYTH AND JUDICIAL REALITY

WESLEY G. SKOGAN*

I. INTRODUCTION
Today, we are confronted with a crisis in our courts. This disturbing
news is carried not only in the magazines and tabloids, but even in the
Congressional Record. Scandals in Statehouses and the failure of two
Presidential Supreme Court appointments remind us that, at all levels of
government, the quality and character of public officials has come under
scrutiny. While the Chief Justice of the Supreme Court deploringly
relates administrative failure in the local courts to crime in the streets,
police officers organize vigilance committees to monitor the actions of
the bench, youthful defendants mock "juries of their peers", and
militants of all persuasions challenge the right of legal institutions to
regulate their behavior.
All of this reflects a fundamental crisis not only in our courts, but in
all our institutions of government. The basic functions of these
institutions have been opened to debate. Should the courts respond to
change, or should they continue to perform their traditional function of
deferring or buffering the consequences of change? From all points on
the political spectrum outraged voices challenge any resolution to this
question and, in both word and deed, individuals are increasingly
disposed to raise these questions in challenge to the very legitimacy of the
legal system.
We use the term "legitimacy" here in a special way: legitimacy is the
willingness of people, for a variety of reasons, to defer to the decisions of
judges-even if they lose. People may so defer (grant legitimacy) because
they feel that the law in their case was fair and impartial, or, if they do
not like the law, because the judge appeared to exercise his discretion to
look out for their interests. They may defer because the law in point is
politically determined and amenable to change, or because in its
application the judge applied generous measures of common sense. In
short, the citizen may grant legitimacy to the court for substantive
reasons (he wins, he likes the outcome, he feels the law protects his
interests), or for procedural reasons (decisions are made honestly, by
good men, who arrive at their decisions in widely agreed-upon ways).

* Instructor in Political Science, Macalester College.

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What follows is an examination of these foundations of legitimacy, of

the reasoning employed by legal scholars to explain the wide and
powerful support that our courts have enjoyed, and in particular the
notion of a "judicial myth" which underpins a procedural foundation
for legitimacy.

II. THE PROBLEM OF LEGITIMACY

Governmental institutions are formal organizations which both make

and transmit politically determined allocations of resources. A society's
material and symbolic resources are limited and' in the process of
determining the manner in which they are to be allocated, governmental
institutions disturb or reaffirm existing distribution patterns and alter or
preserve the relative status of groups and individuals in society.
Although citizens in a democratic society may participate in the
determination of these allocations, in the end some groups find
themselves relatively disadvantaged by political decisions. Thus, the
classic question in political theory: why do individuals peacefully
acquiesce to decision-makers and decision-making institutions?
The problem of obedience is particularly interesting in the case of the
judiciary. Judges, acting in certain ways and following particular
procedures, allocate society's resources-they perform a political
function. They do not merely transmit allocations of resources (laws)
made elsewhere in the system. In determining the manner in which laws
will be applied in specific situations, and in interpreting the meaning of
often vague legislative mandates, judges play a creative political role.
Laws are, in the end, what judges say they are. In reality, law is then
merely a set of expectations about judicial behavior.I Although they are
traditionally insulated from some of the conflicts which constitute
democratic politics, in the process of making policy decisions--choosing
between alternatives with effective political consequences -members of
2
the judiciary enter the political arena.
A number of differing "causes" of obedience to the decisions of
courts have been postulated. People obey rule-making by decision-
makers, some have stated, because it is rational and instrumental to do
so. While particular decisions allocating social resources may have an
unfavorable effect upon certain social groups and individuals, their stake

1. H. EuLAu &J. SPRAGUE, LAWYERS IN POLITICS 81 (1964).

2. Dahl, Decision Making in a Democracy: The Role of the Supreme Court as a NationalPolicy-
Maker,in READINGS IN AMERICAN POLITICAL BEHAVIOR 166 (R. Wolfinger ed. 1966).
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in preserving social order and predictability in social relationships is

such that they choose to abide by the decisions of duly constituted
authorities. While this explanation of obedience undoubtedly
overestimates the rationality of man and underestimates his personal
involvement in governmental decisions with potentially high material
and symbolic payoff, it does emphasize the fact that human beings in
organized society share common goals which may call for rational
submission to certain kinds of decisions advancing these goals.
Both Plato and Aristotle recognized the importance of another source
of obedience, that of habit. To them, the most important characteristic
of the law was its stability, for ordinary men obeyed law because they
learned early to do so. One of the most important functions of the
legislator was that of education; social stability was thought to be
3
maximized when the law was firmly rooted in the minds of men.
Thomas Hobbes' notion of the nature of man precluded such ideas, or
ideals. To Hobbes, the only source of law was the will of the sovereign,
and the only way men could be compelled to obey it was through fear.
To obtain obedience, the sovereign had to control sufficient coercive
power to exact punishments more horrible than the benefits any man
could reap by disobeying his law.4 As a recent Hobbesian put it:
There is little excuse for any literate American to forget that a fair degree
of law and order is achievable only when police power is so overwhelming
that none but psychopathic persons dare break the law. . . . Law and
order prevail only so long as there is a "lid" to suppress disorder. This lid
is the sovereign's control of overwhelming physical force. If the lid is
removed, the reaction is explosive. 5
But obedience to judicial decisions, like obedience to the decisions of
other institutions, must be in part psychological. If acquiescence to
judicial decisions and judge-made law is only a function of the power of
the courts to command physical violence, stable social life would be
difficult and democratic government impossible. 6 Decisions by the
courts having an unfavorable impact upon major social groups would
ultimately be reduced to trials of force, and conflicts between decision-

3. E. BARKER, THE POLITICAL THOUGHT OF PLATO AND ARISTOTLE 324-26 (1959) [hereinafter
cited as BARKER].
4. C. FRIEDRICK, THE PHILOSOPHY OF LAW IN HISTORICAL PERSPECTIVE 84-85 (1958)
[hereinafter cited as FRIEDRICK].
5. L. GARBER, OF LAW AND NOT OF MEN 6 (1966).
6. D. EASTON, A SYSTEMS ANALYSIS OF POLITICAL LIFE 281-86 (1965); M. EDELMAN, THE
SYMBOLIC USES OF POLITICS 48 (1964); Y. SIMON, THE TRADITION OF NATURAL LAW 116 (1965).

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makers and decision-resisters would be conducted solely on the basis of

the calculated costs of implementing physical sanctions.
An attempt to coerce a large number of people, even short of a majority, is
usually difficult . . . .For if civil disobedience on a grand scale, or even
civil war, is to be avoided, a government engaged in coercing large
minorities needs to have at its disposal an imposing array of coercive
forces-a centralized and disciplined police force, a secret police, a
compliant judiciary, military and bureaucratic establishments ready to
obey the government when 'duty' requires the coercion of large numbers
of fellow citizens, and a body of law, constitutional doctrine, and practices
that permit the government to employ these forces. . . .Although it is
conceivable that a popular government might coerce a large fraction of
the population on infrequent occasions, and survive, the more often it did
so the more the chances of popular government surviving would be
reduced. 7
In a comparatively stable social system, however, more subtle
mechanisms of social control exist which not only reinforce the state's
exercise of physical violence, but often make such exercise unnecessary.
If, in addition to force, the courts are able to rely upon a generalized
predisposition on the part of the populace to voluntarily abide by
judicial decisions, the probability that large numbers of people will resist
such decisions is decreased, and the cost of individual resistance
increases. This is true even if earlier compliance was based upon power.
Forced obedience is likely to wither when the show of force ceases,
whereas obedience motivated by . . .an internalized conformity ...
may be persisted in indefinitely, even after the power subject . is long
forgotten.'
Like other attitudes and opinions, beliefs about law and the judiciary
are learned through a complex process of socialization which begins
early in life. Because they arise out of the social and cultural milieu that
forms the environment which shapes learning, the attitudes which
support judicial legitimacy are closely tied to the general value
orientations which characterize a culture at any particular time. The
history of the development of law and legal institutions, in fact, can be
traced by the changing patterns of beliefs which have served to reinforce
the powers of the judiciary.
Individual citizens arrive at their evaluations of the judiciary within

7. R. DAHL, MODERN POLITICAL ANALYSIS 76 (1963).

8. C. BAY, THE STRUCTURE OF FREEDOM 253 (1965) [hereinafter cited as BAY].

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the general value framework which constitutes their culture. Although

judicial legitimacy in the abstract may perform highly valued social
functions, it exists because the citizenry perceives the judiciary as
embodying its most highly valued norms. Each age has developed its
own pattern of beliefs about judges and judging, and each age has
imputed to the judiciary the quintessence of its most highly regarded
values and most value-supported procedures of conduct. Early law-
giving, for example, was closely associated with cultural religious
patterns.' The mysterious gods which regulated nature and decreed
individual human fate were, for many early societies, the central concern
of the community. Religious sanctions regulated the totality of human
life, and religious beliefs were one of the central reference points upon
which individuals anchored their world view.
The awe of primitive religion which was an integral part of the social
fabric of the times was the source of early judicial legitimacy. Kings and
priests interpreted the law on the basis of divine instruction and served as
mediators between society and its gods. The code of Hammurabi, one of
the earliest legal systems, was prefaced with a pictoral representation of
the Sun God Shamash handing to the King the stone tablets defining the
rules of human conduct." Later, Moses laid the basis of Judaic Law
upon similarly inspired instructions. Law-giving, then, was surrounded
by the mysteries of life, death, and the forces of nature, and the authority
of the judge-priests was grounded in the entire fabric of society.
As society changed, so did man's conception of the law and the
judiciary. With the decline of old religious forms and the personalization
of the gods of ancient Greece, philosophers slowly began to develop the
concept of "natural law". To Plato, law was to be found through reason
and was grounded in timeless and objective reality." Aristotle equated
"dispassionate reason" with morality, morality with legality, and
legality with justice. The law was to be proclaimed by the Guardian, a
skillful, knowledgeable philosopher-king endowed with nearly super-
human wisdom and independence.' 2 Changes in the nature of religion as
well as in the kinds of values and ideas prevalent in society had destroyed
the old bases of judicial legitimacy, and man again seemed to find it
necessary to adopt some explanation for the existence of law and its

9. R. POUND, AN INTRODUCTION TO THE PHILOSOPHY OF THE LAW 26 (1954) [hereinafter cited

as POUND].
10. H. WELLS, THE OUTLINE OF HISTORY 188 (1920).
11. BARKER 326.
12. Id. 323.
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application which removed it from his control. Perhaps, as Roscoe

Pound has speculated, man requires:
a sure basis of authority resting upon something more stable than
human will and the power of those who govern to impose their will for the
time being [for] . . . social control. 3

The close relationship between law and the social forces prevalent in
any given age are also well illustrated in the legal theory of Savigny. The
historical school of law that he advanced had a powerful impact upon
the development of German jurisprudence during the late nineteenth
century. Savigny postulated that law was the organic product of the
forces of history and was the embodiment of the spirit of a people, the
Volksgeist. Law, like language, reflected the spirit of the race and the
nation. This view of the nature of law reflected the kinds of ideas which
were being expressed concurrently in the Pan-Germanic movement."
Demands for ethnic consolidation and national unity, feelings of
"chosenness", "tribal consciousness" and "tribal nationalism" were
dominant social concerns reflected in formal jurisprudence.

III. THE JUDICIAL MYTH

With the development of the common law in England, there arose a

theory of jurisprudence which, although it reached its intellectual
culmination in the late nineteenth century, is believed by many to be the
basis of current popular beliefs about law and the judicial process. 5
The official theory of judicial behavior is that judges stand outside the
body politics. They decide cases, at least the good judges do, by a body of
rules and according to the inexorable and unvarying commands of logic.
They are the spokesmen for the 'law'. Politicians, like Congressmen and
Presidents, should not interfere, for if they do, we will lose our
independent judiciary and will cease to have a government of laws and not
of men. Such is the core of the official theory which has wide and powerful
support and requires those who would influence the judiciary to do so
within the context of this belief."6
This "official theory", or "judicial myth" as it has been described by
several social commentators, supposedly serves the dual purpose of

13. POUND 5.
14. H. ARENDT, THE ORIGINS OF TOTALITARIANISM 222-236 (1958).
15. Lerner, Constitution and Court as Symbols, in COURTS, JUDGES AND POLITICS: AN
INTRODUCTION TO THE JUDICIAL PROCESS 184 (W. Murphy &C. Pritchett eds. 1961).
16. J. PELTASON, FEDERAL COURTS INTHE POLITICAL PROCESS 21 (1955).
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symbolically removing judicial decision-making from worldly processes

and providing a higher source of law, law which members of the
judiciary alone may discover. This model of the judicial decision-making
process was representative of the governmental theories of the age of
constitutionalism, and the same mechanistic, rationalistic (almost
Newtonian) political theory which spawned the American Constitution
was embodied in the formal judicial theory of the day.
The judicial myth consisted of a series of beliefs about law, judges and
the judicial process which were interrelated and interdependent. These
beliefs were the implicit base of the jurisprudence of the eighteenth and
nineteenth centuries in England and the United States. The myth itself
was rarely explicitly stated, and it was not until it began to come under
attack that it was systematically presented, but it is possible to
reconstruct it by integrating the explicit and implicit assumptions of the
legal scholars of the times.
The legal theory implicit in the judicial myth was based upon a belief
in an objectively valid law. 7 Law, which was the "perfection of reason",
was thought to arise out of the evolution of society and acquired, as it
was refined by the wisest men in a succession of ages, an almost
transcendental quality.' Because of its accumulated wisdom and its
objective validity the law could not "but with great hazard and danger"
be changed or altered, and, according to Coke, it superceded even Acts
of Parliament. 9 Not only was the body of the law universal and valid,
but, in addition, its unwritten nature enabled legal theorists to argue that
it constituted a complete and closed body of rules.
The law was taken to be complete and self-sufficient, without antinomies
and without gaps, wanting only arrangement, logical development of the
implications of its several rules and conceptions, and systematic
exposition of its several parts. .... 2.
This conception of law as an objectively valid, systematic, closed and
unchanging set of rules for human conduct is important, for it is central
to the nineteenth century conception of the judicial process. Since law
was perceived to be logically complete and consistent, the function of the
judge was merely to ascertain the relevant facts of a case and, through

17. Oppenheim, The Natural Law Thesis: Affirmation or Denial, 51 AM. POL. SCI. Rsv. 42
(1957).
18. T. BECKER, POLITICAL BEHAVIORALISM AND MODERN JURISPRUDENCE 42-43 (1964)
[hereinafter cited at BECKER].
19. FRIEDRICK 79.
20. POUND 19.
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strict deduction from general principles, apply the law to the case at
hand.
The mechanical theory which postulates absolute legal principles, existing
prior to and independent of all judicial decisions, and merely discovered
and applied by the courts, has been characterized as a theory of a
"judicial slot machine." According to this theory, it is assumed that
provisions have been made in advance for legal principles, so that it is
merely necessary to put the facts into the machine and draw therefrom an
appropriate decision. 2
Thus, judicial decision-making was reduced to the application of
formal reason to the law. Combining the major premise of the law with a
minor premise describing a case produced a decision. 22 Since the
common law was largely unwritten, however, the major premises were
often of the judge's own creation.? Judges were indeed "the depositaries
of the laws, the living oracles, who must decide all cases of doubt
24

The ultimate responsibility of the individual judge for the creation of

the law presented great difficulty for legal theorists expounding the
judicial myth, for while logical processes could be utilized to find the law
in abstract circumstances, most legal theorists realized that judges
themselves were human beings. In order to buttress the argument that
"the rule of law protects us from the rule of men," therefore, it was
necessary to deny that the bench was composed of ordinary mortals.?
While it was possible to disguise most judicial discretion under the
function of the logical completeness of the law, the nagging residual of
clearly judge-made law had to be explained in another way. While legal
scholars emphasized the training and personal skill that individual
judges applied to their tasks, they chiefly relied on the argument that,
while judges did indeed "fill the gaps" of the law, those gaps had the
quality of "higher law", and that, in any event, the morality of the
individual judge was superior to the community. "The morality of the
Courts," argued Dicey, "is higher than the morality of traders or of

21. Haines, General Observation on the Effects of Personal,Political,and Economic Influences

in the Decisions of Judges, in JUDICIAL BEHAVIOR: A READER INTHEORY AND RESEARCH 42.43 (G.
Schubert ed. 1964).
22. BECKER 4243.
23. J. GRAY, THE NATURE AND SOURCES OF THE LAW 252 (1909) [hereinafter cited as GRAY].
24. BLACKSTONE, COMMENTARIES 12 (J. Devereux ed. 1886).
25. GRAY 262-63.

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politicians. ' 2 While "ordinary parlimentary legislation can at best be

called only tentative. . . .the best judicial legislation is scientific."7
The judges are the heads of the legal profession. They have acquired the
intellectual and moral tone of English lawyers. They are men advanced in
life. They are for the most part persons of a conservative disposition. They
are in no way dependent foi their emoluments, dignity, or reputation upon
the favor of the electors. ....2.

As a consequence of these sterling virtues, judges were believed to be

independent of the community and of mere political or personal
considerations. As a result, Sir John Grey argued,
.. .but suppose in a case where there is nothing to guide him [the judge]
but notions of right and wrong, that his notions of right and wrong differ
from those of the community,-which ought he to follow-his own
notions, or the notions of the community. . . .I believe that he should
follow his own notions. 2
The consequences of such a judicial philosophy are obvious. If one
accepts a view of law like that of Aristotle, "the law is reason unaffected
by desire," and endows only members of the judiciary with the
independence, wisdom, morality and training to discover the law, then
judging is not an ordinary human process. This was the view of the law
expounded by Justice Owen J.Roberts in the controversial 1936 case,
United States v. Butler:
When an act of Congress is appropriately challenged in the courts as not
conforming to the constitutional mandate, the judicial branch has only
one duty,-to lay the article of the Constitution which is involved beside
the statute which is challenged and to decide whether the latter squares
with the former."
The judicial myth, therefore, served to legitimate the activities of the
judiciary by denying that they rested upon any but legal foundations.
Judging was a mechanistic, rational-legal process above mere human
passion, and, so long as the courts confined their substantive actions
within the broadest limits of popular toleration, individual actions could
remain unchallengeable.
The elements of the judicial myth were not only consistent with the

26. A. DicEY, LAW AND PUBLIC OPINION IN ENGLAND 368 (1920).

27. Id. 371.
28. Id. 363-64.
29. GRAY 271.
30. 297 U.S. 1, 62 (1936).
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mechanists' political theory of the Englightenment, but they also tapped

all of the basic sources of legitimacy described by Max Weber. 31 First,
judicial decision-making was grounded in rational procedures and
rituals-witness the emphasis on deduction, objectivity and the
mechanistic application of a consistent body of law. Secondly, judicial
decisions were based on traditionallyevolved standards of conduct and,
in the United States, were couched in the terms of a venerable
constitutional document. Finally, the emphasis on the exemplary
character, knowledge and forbearance of the judge, as well as upon the
trappings and formal ritual surrounding the courts, appealed to
charismatic sources of authority.
Other beliefs characteristic of American culture, however, also make
demands upon the functioning of the judiciary, and these demands,
seemingly inconsistent with the judicial myth, actually serve to provide
new bases for judicial legitimacy.
In his brilliant book The American Supreme Court, Robert
McCloskey traces two American political ideas which, rising and falling
in their respective currency during the course of history, have been
important determinants of the fortunes of the Supreme Court in its
struggle to maximize its influence upon the political system.32 One idea,
the doctrine of "fundamental law", supports the notions implicit in the
judicial myth. The, other, the notion of "popular sovereignty",
strengthens the hand of those wishing to limit the power of the court to
thwart the actions of the representatives of the people. In response to this
"will-of-the-people" concept, the populist forces of the Progressive Era
prompted the widespread adoption of a new method of judicial selection
which was alien to the Anglo-American legal tradition: the popular
election of judges. Although the participation of judges in the electoral
process compromises in part certain elements of the judiciary, it gives to
the judiciary the additional quality of representativeness; members of the
judiciary are ultimately responsible to the populace for their behavior.3
Not only does this serve to inhibit judges from stepping outside the
boundaries established by popular conceptions of their role, but it
encourages them actively to pursue identification with these conceptions
and to reinforce them in their public behavior. The hope of any elected
official is to be perceived as embodying all of those characteristics

31. M. WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION 328 (T. Parsons & A.
Henderson eds. 1947).
32. R. MCCLOSKEY, THE AMERICAN SUPREME COURT 12 (1960).
33. See H. KAUFMAN, POLITICS AND POLICIES IN STATE AND LOCAL GOVERNMENT 36-38 (1963).
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essential to the performance of his intended office. Although the election

of judges does clearly cast them into the political arena, the practical
effect of the style of judicial campaign behavior and of the
representativeness gained by the formal recognition of their ultimate
public responsibility has been to expand the basis of judicial legitimacy
in the American system.
The judicial myth was the product of many social forces. As an
argument for judicial independence, it was a powerful weapon in the
hands of Parliament in its struggle for independence from the King. To
the members of the Inns of the Bar, led by Coke, the judicial myth was a
useful tool which increased their political influence and independence.3
One could argue that the judicial myth, like legitimating belief systems
before it, was a conscious product of groups in society concerned with
stability and seeking to inhibit social change. This view of the ideological
bases of legitimacy is undoubtedly correct, at least in part, for in every
age certain men must have realized that their interest in the protection of
the status quo coincided with an interest in the protection of the status of
the judiciary. This may not, however, fully explain the remarkable
tenacity with which legal scholars, journalists, and social philosophers
have expounded upon these myths, and may not explain the widespread
support which has been attributed these ideas.
The tendency of man to assign to the law higher sources which remove
its basic substantive content from day-to-day conflict, and to impute to
judicial institutions the most legitimizing of his beliefs, raises some basic
questions about the functions that beliefs serve in helping man to adjust
to his environment. Why is it that in many societies beliefs have evolved
about law and the judiciary which have had this stabilizing effect? It is
not a universal phenomenon. Certain simple segmentary lineage societies
have evolved stable social relationships without developing even a
general sense of judicial legitimacy. The tenacity of legitimating beliefs
in complex societies seems to indicate that the genesis of such beliefs
must be imbeded in the interaction between man and his social system.
One approach to an analysis of the sources of judicial legitimacy can
be based upon the apparent functions that the judiciary performs in
social life. Courts are essentially institutions that routinize conflict
resolution by channeling disagreements over the allocation of social
resources into orderly and procedurally regularized arenas. As such,
courts provide security for individuals. In order to minimize the anxiety

34. C. FRIEDRICK, CONSTITUTIONAL GOVERNMENT AND DEMOCRACY 101-110 (1950).

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that accompanies uncertainty about continued personal satisfaction,

individuals come to depend upon those institutions which ensure stability
and predictability in social relationships. Avoidance of anxiety is one of
the most basic of human drives, and severe anxiety can lead to a loss of
what Christian Bay refers to as "psychological freedom."' ' Institutions,
then, may become good in themselves because they minimize anxiety and
maximize security.36 The courts are a mechanism contributing to the
stability of social intercourse and maximizing for individuals the
probability that they will continue to enjoy the social benefits that
traditionally accrue to them.
In his Sociology of Religion, George Simmel describes one of the
classic dilemmas of human existence: the conflicting psychological
demands for individual self-determination and for anxiety-reducing
social relationships characterized by harmony, unity, and social
stability.37 This need for Community conflicts with the need for what
Bay has defined as personal "power," the individual's degree of control
over his own fate, the probable difference his own effort will make in his
access to desired goals.Y In their interaction with individuals within
society the courts control power relationships. The judiciary generally
commands sufficient coercive power and manipulative control over
individuals within their jurisdiction that these individuals are virtually
powerless to resist unfavorable, but legal, allocations of their resources.39
The finality of judicial decisions supported by the power of the state
minimizes the individual's feeling of personal power, but at the same
time maximizes the kinds of values associated with Community. One
way to escape this dilemma, to rationalize the required loss of freedom to
another source of collective security, is to create myths that make this
not disagreeable loss of individual power inevitable.
Powers of a personal or objective order, interfering to any degree in our
lives, are sometimes felt as inconvenient or improper. But they
immediately lose this character of interference once the rate of their...
claims are increased. 40

35. BAY 160.

36. Id. 262.
37. G. SIMMEL, SOCIOLOGY OF RELIGION 38-39 (1959) [hereinafter cited as SIMMEL].
38. BAY 163.
39. To Sebastian DeGrazia, members of the Judiciary can in fact become the rulers of a society.
As such they control the environment and regulate a hostile world, and therefore are perceived to be
"superfathers" who must be obeyed and loved in duplication of earliest family relationships. S.
DEGRAZIA, T-I POLITICAL COMMUNITY (1948).
40. SIMMEL 1.
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This could be done by unconsciously imputing to the judiciary, which

controls the distribution of satisfying benefits, particular qualities which
assure the individual that his loss of freedom, his loss of power over this
distribution, is not merely to another individual. 4' Legitimating beliefs,
then, could help bridge the gap between McCloskey's contradictory
concepts of fundamental law and popular sovereignty which are
reflective of the dilemma of man.
If one assumes that most individuals do not possess sufficient
psychological strength to survive the anomic breakdown of the social
order, to tolerate the anxiety associated with ambiguous social
relationships and uncertain access to things they value, then the
propensity of mankind to create institutions of social control would
appear to be a functional response to the need for.security. If, as both
Simmel and Erich Fromm argue, human existence and the desire to be
"free from" are also inseparable, it may be necessary for man to
preserve his individuality and selfhood by retaining at least the fiction
that the controls he places upon himself are part of the natural order of
things. He may require to believe that they are related to those things his
society holds to be of cosmic significance, and do not involve direct
submission to other individuals. Legitimacy, therefore, could be
interpreted as a functional belief which enables man to resolve the
dilemmas of freedom and obedience which arise out of his nature and
which constantly confront him in organized society.

IV. THE SURVEY EVIDENCE

As we have seen, legitimating beliefs about law and the judicial

process have been a persistent characteristic of complex and stable
societies, and the existence of legitimating beliefs has been linked to the
ability of the judiciary to resolve conflicts over the allocation of social
values in a peaceful and orderly, albeit confining, manner. One common
assumption of those describing the function that legitimating beliefs
perform in American society has been that public perceptions of law and
the judiciary are rooted in the nineteenth century idea of the judicial
myth.
Despite every proof to the contrary, we have persisted in attributing to
them (judges) the objectivity and infallibility that are ultimately attributes
only of a godhead.42

41. Id.32.
42. Lerner, Constitution and Court as Symbols, in COURTS, JUDGES AND POLITICS: AN
Washington University
INTRODUCTION TO Open Scholarship
THE JUDICIAL PROCESS 184, 191 (W. Murphy & C. Pritchett eds. 1961).
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One purpose of this research is to test this hypothesis. Certainly, the

little empirical evidence that does exist indicates that at least some
elements of the judicial myth no longer enjoy popular support. Twenty-
five years ago, for example, 43% of the respondents to a national opinion
poll agreed with the statement that "the Supreme Court decides many
questions largely on the basis of politics." 43 The lack of any evidence
about the actual beliefs of the mass of the citizenry before the advent of
scientific polling procedures precludes any comparisons with previous
ages. However, with the use of survey questionnaires we can confront
present populations with elements of the myth and make some estimates
of their persistence.
For this purpose, we have chosen to gauge the attitudes of college
students. Perceptions of social objects, like the courts, change over time
as new belief systems and historical events challenge people's ideas about
their world. The investigation of college student's perceptions of the
foundations of legitimacy should give us some estimates of the
parameters of that legitimacy, for college students are a population
perceived as both open to new beliefs and to the impact of contemporary
events. The sample reported here consists of 342 undergraduate students
at the University of Wisconsin-Milwaukee. Their opinions were polled in
4
the Spring of 1966.1
A second question raised by this study is: to what extent does the
judicial myth reflect the way in which judges actually make decisions?
By presenting judges with a series of questions drawn from elements of
the judicial myth we may be able to make some judgments about its
operational validity. For this purpose, the same questionnaire answered
by the student sample was presented to ten County and Circuit Court
judges in the same urban area. 5 While this is a relatively small sample
even for elite interviews, it did represent a random sample of one half of
the judges sitting at the time; issues raised by questionnaire responses
were extensively discussed with the respondent judges.
Finally, the availability of comparable data on the two populations

43. Strunk, The Quarter'sPolls, 10 PUB. OPIN. Q. 436 (1946).

44. The characteristics of the student sample are more fully explored in W. Skogan, The Judicial
Myth and Judicial Behavior, unpublished thesis submitted in partial fulfillment of the requirements
for the degree of Master of Arts, University of Wisconsin-Milwaukee (1966).
45. These judges ranged in experience from forty-five days to thirty-four years. Circuit and
County judges in this state are elected for six-year terms on a non-partisan basis. Incumbency is
tantamount to re-election, and most were initially appointed to the bench by the governor to fill
unexpired terms made vacant by retirement or death in office. All of the judges interviewed had held
previous public office or filled political roles.
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enables us to probe another question: what are the similarities and

differences in their perceptions? At what points do they agree upon the
nature and functioning of the law, and at what points do their views of
the world diverge? If there is a crisis of judicial legitimacy it should be
apparent in these divergences.
A. Perceptionsof the Law
As we have seen, one of the classic and unresolved problems plaguing
social philosophers has been that of the nature of the law. Be it based on
the strength of the sovereign, common consent, or the will of the deity,
". .. law is so much a part of everyone's life that every person has his
own ideas about its nature."" Two crucial elements of the judicial myth
seem to differentiate it from alternative views of the nature of the judicial
process: the extent to which it isolates the control of individual behavior
from the idiosyncrasies of human intervention and the extent to which it
posits law as a complete system of rules.
The classic rubric, "the rule of law protects us from the rule of men,"
is an articulation of the first element. The notion that the law both
controls the operation of the legal system and the caprice of individual
decision-makers is clearly reflective of the judicial myth even in an age
when "popular sovereignty" overshadows the theory of a more
fundamental law. Emprically we find the following:
The rule of law protects us from the rule of men.
Judges Students
Agree very much ........................... 50% 9%
A gree ................................... 40 33
Don't know; no opinion ..................... 0 8
Disagree ................................. 10 42
Disagree very much ....................... 0 8

Student opinion clearly reflects polarization around this classic

dilemma; fifty percent are unconvinced that law protects against the rule
of individual judges.
Among the judges, on the other hand, belief in the rule of law reflects a
common ideal they all shared, that of achieving through self-discipline
an objectivity that would allow the law rather than their personal beliefs
to govern. As one judge put it:
Law should not be based on the personal predilections of the judge. We

46. C. HOWARD & R. SUMMERS, LAW, IT'S NATURE, FUNCTIONS AND LIMITS 4 (1965).
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have no right to play God. We have to avoid gastronomical jurisprudence

by disciplining ourselves. What we had for breakfast should not affect the
course of society.
The second element of the legal system posited by the judicial myth is
its completeness, i.e., the extent to which it defines the possible universe
of human action. While the assumption of the judicial myth is that the
law is a system of definite, consistent, known rules which are applied by
the judge, both groups would agree with Cardozo that "there are few
'4 7
rules; there are chiefly standards and degrees.
The law contains a rule for every situation.

Judges Students
Agree very much .......................... 10% 0%
A gree ................................... 0 5
Don't know; no opinion ..................... 0 5
Disagree ................................. 60 56
Disagree very much ....................... 30 34
Both students and members of the judiciary are in substantial
agreement that the law does contain many gaps to be filled. "Legislative
foresight is finite, and there is no limit to the variety of situations that
can arise in a complex and dynamic society. No legal code, no aggregate
of statutory directions and judge-made precedents, can ever furnish
explicity and unambiguous commands for every conceivable case." 48
B. Perceptionsof the Decision-Making Process
A more careful look at the factors which are thought to influence and
constrain the process by which judges go about applying those
"standards and degrees" to individual cases reveals the same pattern:
high agreement among judges that they are sensitive to the needs of
individual claimants (in their interpretation, open to society) but
disciplined by the law, and sharp disagreement within the student
community over the same issues. These findings are important as we
suggested at the outset. Consensus on the fairness of the decision-making
process is as crucial as satisfaction with the substantive outcomes of
cases in maintaining sufficient levels of legitimating support for the
judicial system.

47. B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 161 (1921) [hereinafter cited as
CARDOZO].
48. Jones, The Trial Judge-Role Analysis and Profile,in THE COURTS, THE PUBLIC AND THE
LAW EXPLOSION 125, 129 (H. Jones ed. 1965).
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 Vol. 1971:309] JUDICIAL MYTH 325

In order to probe our respondents' perceptions of the decision-making

process, we presented the judges and students with a number of questions
prefaced with the statement:
A judge must weigh a number of factors when he makes a decision in a
case. For each of the following, indicate the extent to which you think they
are factors that judges here in Milwaukee consider when they are making
decisions.
Initially this format will be used to map in a general way the factors
which influence judicial behavior: legal precedent, situational factors,
the need to protect minority rights. In the next section the same format
will be utilized to investigate the political dimension of the judicial role.
Legal precedent is, in theory and in practice, one of the key factors in
judicial decision-making. As one experienced jurist described it, "if the
precedents are plain and to the point, there may be need of nothing more,
for stare decisis is at least the everyday working rule of our law. ' 4
Precedent is one of the major sources of predictability and stability in
the Anglo-American legal system, and a major factor which "isolates"
the law from the personality of the presiding judge. In an important and
continuing series of experiments, Theodore Becker has empirically
demonstrated the power of precedent to both shape the hypothetical
decisions of law students and judges and to reduce the influence of their
previously measured "substantive value perferences" upon their rule
behavior.5
With some student dissent, both judges and their public reflected the
importance of precedent in our samples.
(Importance of) following the legal precedent established in the past.

Judges Students
Very important ........................... 20% 19%
Important ............................... 80 48
Don't know .............................. 0 7
Unimportant ............................. 0 22
Very unimportant ......................... 0 4
The importance of situational factors unique to concrete and often
intractable human reality was also readily recognized by both groups.
Our system of common law relied upon the judge to apply often

49. CARDOZO 20.

50. BECKER 113-146.

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ambiguous statutes and unclear precedents to individual cases. In the

course of applying the law and (hopefully) finding justice, he is forced to
consider each case on its own terms, for no two human interactions are
likely to be identical in every respect.
• . .There is a substantial incidence of cases in which the law is unclear,
that is, in which the judge has no clear mandate to decide one way or
another and must choose between the alternative decisions open to him on
the basis of his best judgment as to which decision is fair between the
parties .... 1l
(Importance of) interpreting the law in light of individual situations.

Judges Students
Very important ........................... 60% 32%
Important ................................ 30 49
Don't know .............................. 0 6
Unimportant ............................. 10 11
Very unimportant ......................... 0 2

Responses to the open-ended questionnaire also reflect the importance

judges place on the interpretation of law in the light of individual
situations.
Judge K, who thought that "applying the letter of the law" is
"unimportant" (in response to another question), defined the law as
"ninety-nine percent common sense." He stressed the importance of
securing out-of-court settlements of cases and argued that major element
of a judge's work is "the practical application of psychological
techniques to get cases settled." Judge H, on the other hand, thought
that individual interpretation is "unimportant" and strict application
important, and he stressed the fact that "the law is justice" and that
"for every wrong there exists an equitable remedy." He stated: "The job
of the judge is to find the law that fits the facts and apply it. The judge
has no right to interfere personally in a case."
While Judge H clearly expressed a role orientation based upon our
classic model of the judicial myth, he also represented a lonely position
vis-a-vis his fellow jurists.
These two judges, as well as the division of student and judicial
opinion in general, reflects a basic dilemma: the problem of reconciling

51. Jones, The Trial Judge-Role Analysis and Profile, in THE COURTS, THE PUBLIC AND THE
LAW EXPLOSION 125, 130 (H. Jones ed. 1965).
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 Vol. 1971:309] JUDICIAL MYTH

justice (substantive satisfaction) with uniform application (procedural

satisfaction, which in the American case is also thought to be a
component of "justice"). For Judge A this apparent dilemma presented
no difficulty.
The function of the courts is to settle disputes. The uniform application of
the law is a social necessity. Often decisions are "unjust" in an ethical
sense to individuals, but pragmatically the uniform application of the law
results in a social good.
The uniform application of the law is necessary, Judge C argued,
because:
The function of the law is to clarify and order confused relationships
between people. Law is the basis upon which we predict relationships.
Despite their various defenses of the uniform application of the law,
the judges realized that they shared the standards and prejudices of their
society. Moreover, they all recognized the ease with which they could
substitute personal judgments for legal standards. The unique aspect of
the judicial system as the judges viewed it stems not from the absence of
such prejudice, but from an equal prejudice based on procedural rules,
rules which all of the judges felt to be as important as substantive ones.
In a large sense it is this prejudice based upon procedural rules which
legitimates individual interpretations by judges even if they deviate from
substantive community prejudices.
One concern which most judges share involved the role of the courts in
the protection of individual citizens. In a large and often impersonal
society even legal benefits can by-pass certain groups and individuals,
therefore, the role of the courts in the protection of minority rights is a
major one. The manner and substance of judicial adjudication at the
trial court level could be an important factor in determining the extent
to which many American minority groups will be integrated into the
mainstream of society. An awareness of this judicial function was
evidenced by the judges and, to a lesser extent by the students.
(Importance of) upholding the rights of the little guy.

Judges Students
Very important ........................... 50% 20%
Important ................................ 40 46
Don't know .............................. 0 10
Unimportant ............................. 10 22
Very unimportant ......................... 0 2

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 328 WASHINGTON UNIVERSITY LAW QUARTERLY [Vol. 1971:309

C. - Perceptionsof Individual Discretion and JudicialPolitics

Despite the fact that "the nineteenth century abhorred judicial
discretion . . .,,52 students clearly realized that judges do exercise a
degree of personal discretion.
How much personal discretion do judges
have in the application of the law?

Students
Very m uch ......................................... 23.4%
Som e ............................................. 5 1.2
A little ............................................ 12.0
N one at all ......................................... 1.5
Don't know ........................................ 11.4
Many of the students interviewed turned a somewhat jaundiced eye
upon the notions of judicial impartiality.
Judges are impartial and do not let their personal
views interfere with their decisions.
Students
Agree very much ..................................... 6%
A gree ............................................. 15.5
Don't know; no opinion ............................... 19.3
Disagree ........................................... 52.0
Disagree very much ................................. 12.6

(Importance of advancing their personal political

and social ideas in decisions.
Students
Very important ..................................... 8.5%
Im portant ........................................... 31.6
Don't know ........................................ 11.4
U nimportant ....................................... 26.6
Very unimportant ................................... . 21.9

The judges were asked, "Do you get much of a chance to work your
personal ideals of 'justice' into your decisions?"
Nine of the ten judges interviewed stated that they did. They all agreed
that this was most common in (1) ambiguous cases where there existed

52. POUND 55.

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no controlling precedents, and (2) in sentencing individuals and fixing

monetary settlements. One judge explicitly stated that his personal
values played an important role in the fixing of sentences for certain
kinds of crimes.
I'm generally a soft touch. If I were a lawyer, I would want to get a judge
like me, (that is) for most crimes, like shoplifting, where there is not much
damage done to people. But for some crimes, like rape, and in some
divorce cases, I'm tough.
Statistical studies of voting on appellate benches suggest the same
reality perceived by the majority of students; behind the on-the-bench
behaviors of judges lie a relatively stable set of general policy preferences
which structure judicial reactions to individual cases and lend a
predictability to their decisions over and above the formally recognized
constraints of stare decisis, legislative enactment, and procedural
regularity.5
Despite their ability to shape certain kinds of decisions, and despite
the widespread recognition (in at least our student sample of the public)
of this power, judges in the American political culture are expected to
remain above the political fray.
The protections that have surrounded judges in the Anglo-American
systems are significant here as supplying evidence of widespread
expectations concerning judicial behavior. These safeguards testify to the
expectation that judges should not be subject to the influence that may be
exercised through civil liability for their official acts, reduction of pay,
and arbitrary removal."
Despite this, local judges are clearly subject to "the vulgar forces that
contend in the market for place and power." 55 While divided, a clear
plurality of the student sample perceives judicial political behavior in
most unsubtle forms.
(Importance of) representing important economic interests.
Students
Very important ..................................... 8.2%
Important ...................................... 36.0
Don't know; no opinion ............................... 15.5
U nimportant ....................................... 29.8
Very unimportant ................................... 10.0
53. G. SCHUBERT, THE JUDICIAL MIND (1965); Spaeth, Warren Court Attitudes Toward
Business, in JUDICIAL DECISION-MAKING 79-108 (G. Schubert ed. 1963).
54. D.TRUMAN, THE GOVERNMENTAL PROCESS 483 (1951).
Washington55.
University
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While any observer of local court systems would have no difficulty in

rec4gnizing the type of judge perceived by the student respondents, Carl
Swisher presents a more charitable interpretation of the average judge's
sensitivities.
Judges being human in their desire for community approval, it is not
surprising that some of them drift with the sentiments of the times and fill
the interstices of the law somewhat as if they were the direct agents of
democracy."
Both the judges and the students were divided about the importance in
the local court of this representL.tional function of shared community
prejudices.
(Importance of) reflecting the desires of the majority of people.
Judges Students
Very important .......................... 20% 10%
Important ................................ 40 46
Don't know .............................. 10 7
Unimportant .............................. 10 30
Very unimportant ......................... 20 7
Both the judges and the students were as divided on this issue as upon
any we investigated in the course of the interviews. While the students
saw a number of factors playing a role in judicial decision-making at the
local level, representing majority interests was not seen as the primary
one. Judges, on the other hand, saw this to be more important than did
the students. This may be in part because of the special sense in which
they interpreted the notion "desires of the people", especially in the
electoral process.
In response to the question, "Do you think the public's expectations
about judges affect what judges here do, and their chances for re-
election," most of the judges replied with an emphatic "yes." In their
analysis, public expectations of judicial behavior set only the broadest of
limits on their publicpolicy decisions. Public demands as they saw them
were largely imposed upon their private lives, upon their probity and
public morality. According to Judge A and others, the public feels
incompetent to judge the content of a judicial decision, but not the
personal life-style of the decision maker. All of the judges stressed the
importance of personal probity on the part of judges and their

56. C. SWISHER, THE SUPREME COURT IN MODERN ROLE 5 (1958).

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immediate families. The judge cannot in his personal conduct or official

demeanor violate the mores of the community.
The public demands that the judge have no taint to his personal life. They
must be held in high regard, for they are the last check between the
individual and the government. They control the lives of others and pass
judgment on personal misconduct every day. (Judge B)
Thus, we would suggest that one crucial difference between the
attitudes of judges and students (although we have only indirect data on
this point) revolves around what they feel judges should do and in fact do
vis-a-vis public expectations. Moreover, the -gap is not one of
"responsiveness", it is a more fundamental difference in the notion of
what publics can and do expect from their judges.
By weighing the responses to the questions above concerning the
factors which influence judicial decision-making, it is possible to rank
them in the order in which both the students and the judges perceive them
to be important in the local courts. The items, with their ranks, are:
Rank Judges Students
I Situational situational
interpretation interpretation
2 protection of reliance on precedent
minority rights
3 reliance on protection of
precedent minority rights
4 reflecting reflecting majority
majority opinion opinion
5 estimating impact
on re-election
6 representing economic
interests
7 advancing personal
political/social
beliefs
What is interesting is that, despite the apparent disagreement on a
number of items, the underlying pattern is the same for both groups.
Weighing each response category by its frequency indicates that both
groups agree upon the primacy of precedent, the middling importance of
reflecting majority opinion, and in the student sample the relatively
lesser importance of purely political factors in judicial decision-making.

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Political scientists almost universally describe courts as political

institutions. Politics involves the authoritative allocation of social
benefits; courts authoritatively allocate social benefits; ergo, courts are
political institutions. To the judges, however, judicial decision-making is
rooted in a series of processes which effectively remove it from normal
interest-group, bargaining, power politics. The judges, and many
students, bow to the importance of doctrines of legal precedent,
objectivity, the protection of minority rights and the rule of law. Judges
realize that they do make the law and that their judicial activity cannot
be abstracted from the cultural milieu of which they are a part, but their
conception of the judicial role and of their political responsibility serves
to sever the "normal" connections between politics and policy in the
judicial process. Although they are elected officials, for example, the
judges interviewed were in agreement that the public is not concerned
with the content of their decisions. They stressed, rather, the importance
of personal characteristics: honesty, humility, objectivity, and human
sympathy. They all stated that their re-election depended almost solely
upon their personification of the attributes that we have described as
characteristic of the judicial myth. If judges believe that their personal
interest in retaining office is dependent upon their judicious conduct,
then not only will their behavior tend to reinforce the judicial myth
among the population, but in addition the independence of their
decision-making from normal political pressures will be enhanced. Thus,
the legal training, experience and self-interest of the local judiciary
enables them to conceive of their jobs, and perhaps to execute them, in
what they believe to be "non-political" terms.

V. ANALYSIS AND CONCLUSION

At one level, the data presented above indicate a rather high level of
consensus between students and judges on the nature of the judicial role
and the nature of the law with which judges deal. Among the judges
themselves we found a consistently high level of agreement on all items.
The impact of legal and political process on them somehow managed to
inculcate in them a strikingly similar set of perceptions about their role.
This consensus is especially striking because the socializing influence to
which the judges were exposed was by no means homogeneous. It ap-
pears that, despite these differences and the different ways in which they
were recruited to the judicial role, the commonly shared experience of
"judging" shaped their attitudes in similar ways. In one sense, we can
indeed talk about the "judicial role"; the empirical data suggests that
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the job which they perform sharply affects, in similar and predictable
ways, the way in which they think about the world.
The extent to which the actual, operative judicial role resembles the
role perscribed by the "judicial myth" is another matter. The data
indicate that in many ways the judges do not share the beliefs ascribed to
that role. We have suggested, however, that although they may not
themselves subscribe to the judicial myth, the way in which they behave
vis-a-vis the electorate may in fact tend to reinforce whatever currency
the myth has in the wider public. Although judges agree (80%) that
through their decisions they "make public policy," and that "political
groups have a lot to do with the election of judges" (80%), they feel that
politics is not related to the substance of their decisions. Judges are
selected, they feel, mostly because they resemble the sort of judge
glorified by the judicial myth. They feel (100%) that "politics shouldn't
have anything to do with the way in which judicial decisions are made,"
and that in fact judicial decision-making is not directly tied to popular
preferences.
Measured by their responses to these questions, it appears that the
majority of the students polled would agree with most of the perceptions
of judges. The two groups were in high agreement on a number of key
items, not the least of which is the highly similar ranking they gave to the
factors in judicial decision-making. This high level of between-group
consensus was manifest in other ways as well. Both groups, for example,
agreed upon the factors they would look for in good judges.

Characteristics respondents would look for in a judge.

Judges Students
Honesty and integrity ...................... 45% 37%
Knowledge of the law ...................... 20 16
Impartiality .............................. 20 16
Activity as a lawyer ....................... 10 4
As we suggested at the outset, it is these commonly shared role
perceptions which lend stability to a political system and ensure the
smooth passage of political institutions from generation to generation.
In the American system, we have historically stressed the importance of
shared procedural perceptions, and in fact it is precisely there that our
data indicate the highest levels of inter-group consensus.
It is important to note, however, that the student sample was much

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less cohesive in their responses, and that on several key items (like
"reflecting social change") there were substantial levels of minority
opinion. A separate analysis of the sources of student opinion on key
items indicated the following patterns:
(1) the more accurately students perceived the conflictful nature of
politics in general, the more "political" was their interpretation of
judicial behavior, and the more unresponsive they perceived those courts
to be;
(2) the more informed students were about the local courts, the more
political were their interpretations, and the more unresponsive they felt
them to be;
(3) students who were older, from higher status backgrounds, and
interested in politics were more likely to see the courts as unresponsive
and political.
While we could go on, the general import of these findings is clear.
Like studies of student activism in general, our analysis indicates that it
is precisely the sorts of people who have traditionally gone on to
positions of power, who have traditionally wielded informal influence in
decision-making, and who were most likely to be active in politics who
are the most critical (as we would interpret it) of the courts as
institutions. Comparing the responses on the items presented above, we
find that it is the same people who dissent on a variety of items, and that
the dissenters are like those whom our leaders have often referred to as
"the leaders of tomorrow." Thus, the congruence between judicial and
majority-student attitudes on key items may hide important differences
within the student population, differences of great political significance.

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