For the second time in a short period, Professors Miles and Sunstein have brought powerful tools of statistical analysis and diligent coding of circuit court of appeals opinions together to demonstrate what the Realists long ago taught us to suspect, that significant elements of judging can be explained in terms of the jurist’s political world view—that the tension between law and politics is alive in judicial work as elsewhere and that it is only an aspiration to seek a world of laws and not of men. Elements of their work, though, appear as if in criticism of contemporary doctrine rather than as confirmation of human nature. Without for a moment wishing to deny that we are better served by judges who do not permit themselves the freedom to enact personal politics, and that the “tenacity of a taught tradition” and appropriately framed legal propositions purporting to constrain such preferences serve us well, I want to suggest that in targeting two notable Supreme Court cases, each approaching its silver anniversary (Chevron U.S.A. Inc v NRDC and Motor Vehicle Manufacturers Association v State Farm Mutual Automobile Insurance Co), they may mistake the context in which the inevitable presently appears for its cause. The issues these cases address are not new. And the cases establish a more reasonable framework for the appropriate relationship between executive and judicial action than Professors Miles and Sunstein suggest.
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