Jamesian Philosophy Refreshed

The United States seems to have lost a comforting illusion. The Republican trickery of keeping a seat open for a year until their own guy could fill it, then four years later rushing through a confirmation because ... the next guy couldn't be allowed to fill it -- this has been rather hard on the notion that Supreme Court Justices are in some important sense above the grubby world of politics. Should we regret the loss of that illusion?  In a book I wrote decades ago, about the history of the politics of the Supreme Court, focusing on the period from FDR to George H.W. Bush, from the court-packing plan to the Clarence Thomas hearings, I took a broad position I called "minimal formalism."  A full-blooded or maximalist formalist would answer "yes" to this question. Indeed, he would probably say, "It has not always been an illusion, for important parts of American history it has been the truth -- we should regret, first, the fact that it became an illusion and...

In the philosophy of law, "positivism" generally stands for the view that the law is the will of the state, as expressed in legislation understood as a natural, historical fact. It is antithetical to any theory that posits "natural law," a Way Things Ought to Be to which those legislators must respond at the cost otherwise of losing their own legitimacy. Also in the philosophy of law, "realism" stands for the view that there are no formal and direct inferences from rules of law to applications -- from what the legislators do to what the judges do -- or from precedents sent down from the appellate court up high to the decisions of the ground-level trial courts. Realism is a critique of formalism. Positivism and realism as so defined are neither at odds nor allied. They don't address the same questions, they do not share the same foes (natural law theory is not identical to formalism). Historically, though, representatives of positivism and realism...