Since its inception, New York Court Watcher has published over 300 commentaries. Virtually all of them are based on original research. Voting patterns of Justices and judges, as well as decisional patterns of the courts on which they sit, are a staple of the commentaries. Courts, Justices and judges, and the politics surrounding them--as well as practiced by them--are examined from a realistic and practical perspective. That is, legal realism as opposed to formalism. From the perspective of a political scientist as well as a lawyer.
To be sure, the author's (i.e., my) educational and career background have influenced his outlook on the judiciary and judicial politics. Studying under his doctoral mentors at the University of Virginia, Henry J. Abraham and David M. O'Brien, clerking at the New York Court of Appeals for Judges Matthew J. Jasen and then Stewart H. Hancock, Jr., and being exposed to the Supreme Court during his Supreme Court Fellowship have certainly had their effect on the way he views courts, judges, and the judicial process generally.
The guiding principles underlying New York Court Watcher and the commentaries posted by the author are best stated in the oft-quoted works of two of America's greatest jurists. In his essay, The Path of the Law, Oliver Wendell Holmes put it this way:
The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding....
I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious.A quarter of a century later, Benjamin N. Cardozo, Holmes's successor on the Supreme Court, articulated much the same in an inimitable, elegant style that is unmistakably his own. He did so in lectures entitled The Nature of the Judicial Process:
I take judge-made law as one of the existing realities of life. There, before us, is the brew. Not a judge on the bench but has had a hand in the making. The elements have not come together by chance. Some principle however unavowed and inarticulate and subconscious, has regulated the infusion. It may not have been the same principle for all judges at any time, nor the same principle for any judge at all times. But a choice there has been, not a submission to the decree of Fate; and the considerations and motives determining the choice, even if often obscure, do not utterly resist analysis....
More subtle are the forces so far beneath the surface that they cannot reasonably be classified as other than subconscious. It is often through these subconscious forces that judges are kept consistent with themselves, and inconsistent with one another...There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals.It is this legal realism, of Holmes and Cardozo, that informs the commentaries on New York Court Watcher --however imperfectly and much less eloquently.
