Judging from the Gut.

Legal Realism and the fait accompli.

"The Moped and the Robe"

Now this is the story, and but not a true one, yet contains as much truth as a historical biography, It concerns one Justice Thistlewaite, who sat in the Crown Court at Lambeth and wore his robes like a man born to the bench, though he once told me he'd have traded the lot for a morning pipe and a good saddle horse. But this tale is not about horses—it is about Rome, and about muggers, and about how even judges are men after all.

It was during the August Assizes that Thistlewaite took his leave, and with Lady Thistlewaite—one of those stiff-laced Englishwomen who endure the Continent with grit and linen gloves—he went to Rome to study marbles, drink bitter coffee, and feel, as he put it, “a little less English for a week.”

But on the third day, just near the Piazza Navona, a moped came like a bullet out of Hadrian’s shadow, and in one swoop a lad in a leather jacket tore her handbag from her shoulder, sending Lady Thistlewaite to the ground, her dignity scattered like prayer-books at a garden party.

The boy vanished into traffic like a lizard into the stone, and though there were police and apologies, the holiday was spoiled. Justice Thistlewaite did not speak much at dinner. He took his wine stiff, and watched the candlelight dance on his fork.

When he returned to Lambeth, the very first case upon the docket—by some devilry of fate—was a mugging. The accused: a lank boy of nineteen, with eyes like flint and a jaw set in insolence. He’d stolen a purse near Vauxhall, and roughed a pensioner besides. The law gave latitude. Thistlewaite had always been a liberal benchman—he knew men were made, not born, to crime. But that morning he remembered his wife's scream, the blood on her glove, and the Roman policeman scribbling uselessly into a notebook.

So he donned his robe, and with his gavel came down like thunder. The boy got seven years.

Later, over brandy at the club, old Sir Julian said:

“Bit stiff, Thistle. Bit stiff for a first offence.”

Thistlewaite only looked into the fire and said:

“The law is blind, Julian. But the judge is not.”

And that, dear reader, is the way of it. Whether it was justice, or merely retribution dressed in ermine, I cannot say. But I do know this: even the fairest of robes may hang heavy with memory, and Rome is a place where one does not always leave what one finds.

There was a time when we understood law as law: a fixed, ascertainable body of text, to be interpreted according to its original public meaning. The Constitution, like any written document, meant what it meant when it was adopted. It was not a canvas for elite improvisation, nor a mirror for judges to see their own reflections staring nobly back. Today, however, we live under the long shadow of legal realism, a jurisprudential cancer that has all but devoured the idea that law should govern men, and not men the law.

Legal realism, the brainchild of early twentieth-century sceptics like Oliver Wendell Holmes Jr., Jerome Frank, and their intellectual offspring, holds that judicial decision-making is less a matter of deduction from legal premises and more a matter of personal temperament, political preference, and unconscious bias. Law, they say, is what judges do in fact. The reasons offered in judicial opinions are not the cause of the decision, but the rationalization of a judgment already rendered by instinct or ideology. If that is true—if that is really how the law works—then we might as well dispense with constitutional text altogether, and issue robes to philosophers, sociologists, or perhaps the judge’s eldest daughter.

Take, for instance, the well-cited but rarely interrogated case of Justice Harry Blackmun in Roe v. Wade. A man of mild disposition, methodical temperament, and a professional history as legal counsel to the Mayo Clinic, Blackmun was no radical. But once he took up the case, something shifted. Biographers have noted that his daughters’ strong pro-choice views may have swayed his thinking. The final opinion in Roe reads not like a product of constitutional interpretation, but of ethical reflection, medical paternalism, and elite consensus.

This intervention invented, let us speak plainly, a constitutional right to abortion, ex nihilo. The Constitution mentions no such thing. The word “privacy” appears nowhere. The substantive content of the “due process” clause of the Fourteenth Amendment was tortured and stretched until it could justify a judicial framework so gossamer and convoluted that even its defenders struggled to explain it. John Hart Ely, no conservative, called Roe “bad constitutional law, or rather... it is not constitutional law and gives almost no sense of an obligation to try to be.” That is not judging. That is legislating with a thesaurus. Moreover, Blackmun’s intellectual cowardice led to the deaths of millions of innocent human beings.

If legal realism is correct, then Justice Blackmun did nothing unusual. He simply “felt” that abortion should be legal, and then reverse-engineered a constitutional justification. However, legal realism merely describes reality rather than imposing something normative. But if that is how the law functions, then what protection remains for the citizen? What confidence can the governed have that their fundamental law is stable, rather than mutable according to the private convictions of nine unelected elites? Strip away the veneer and the legal system begins to look very different to that which we are sold.

The implications grow darker still. Realists, and even the pragmatic disciples of Richard Posner, now admit that judicial behaviour may be influenced by the pettiest of stimuli—whether the judge had breakfast, suffered indigestion, or had a sour holiday abroad. Shall we anchor constitutional rights to the burnt toast of the judiciary? If a mugger in Rome steals a judge’s wife’s handbag, shall we expect justice in a robbery case the following Monday to reflect the eternal principles of ordered liberty, or the fleeting mood of a husband scorned? Realism, rather than reducing law to judicial weather: partly cloudy with a chance of empathy, it describes a fatal flaw in an institution held to such reverence as any Holy book.

To ignore the reality of how the law works in reality than fiction is not a jurisprudence of restraint. It is a jurisprudence of ego, it is where moral certitude masquerades as constitutional authority. It opens the floodgates not to liberty, but to an unending erosion of the separation of powers. The Constitution, so we are told, belongs to the people. It was written, ratified, and amended by the people. When judges declare that the text no longer binds them because the “times have changed,” they do not interpret the Constitution, they replace it. But this too is a reflection of ideology, not neutrality.

Let us not pretend that originalism is without values too. Of course it is. Its primary value is fidelity to the meaning of enacted text. It is the only method that binds the judge to something outside himself, something real, public, and historically grounded. Living constitutionalism, by contrast, binds the judge only to his own sense of justice, and therefore, ultimately, to nothing at all. Yet, this all presupposes the honesty connected with the process that birthed it-democracy. If a people can be utterly deceived into representing a pre-ordained outcome that has the appearances of organic ratification, then, how honest can it be?

However, even Posner, who rightly critiques the myth of judicial neutrality, ends up replacing it not with moral restraint, but with pragmatic consequentialism; a managerial vision of the judge as policy-maker. He trades the robes of a priest for those of a bureaucrat, but the hubris remains. Whether a judge consults the Federalist Papers, the Travaux Préparatoires or a cost-benefit analysis is irrelevant if both simply serve to justify conclusions drawn from intuition or ideology.

It might help explain why there has emerged, with far more frequency, decisions that seem very predictable. Now, one might argue, “isn’t the law meant to be predictable? Is that not how we avoid prosecution in the first place, having certainty?”. This, however, conflates certainty in regards to consistent application of the law versus predictability of politicalised courts. For those who think the law acts dispassionately, well, this can appear quite frightening and it should be.

let’s not labour under any delusions. The fiction of impartial judicial selection is among the most insidious and well-guarded illusions in modern democracies. Consider us here in the Republic of Ireland, which assures the public that its judges are chosen through a neutral appointments process; refined, procedural, and above all, depoliticized. On paper, yes. In practice however, the judges are too often ideological facsimiles of those who elevate them, selected not despite their philosophical alignment with power, but precisely because of it.

The Irish judicial appointment system, while formally clothed in the vestments of neutrality, transparency, and procedural integrity, is in reality deeply shaped by political influence and executive discretion. The system maintains the appearance of impartiality, but upon scrutiny, it reveals itself to be a political mechanism thinly veiled in procedural decorum.

Since 1995, judicial appointments in Ireland have formally passed through the Judicial Appointments Advisory Board (JAAB). The JAAB's role, we are told, is to recommend, dispassionately, suitable candidates for judicial office to the Government. Its membership includes the Chief Justice, the Presidents of the courts, the Attorney General, and representatives from the legal professions.

On paper, this appears balanced. In practice however the Attorney General is a political appointee, sitting at the Cabinet table, and can heavily influence recommendations. The JAAB's recommendations, it should be noted are also non-binding and the Government retains full discretion in whom to nominate, even if multiple candidates are recommended—or none at all.

In the case of existing judges seeking promotion, they do not have to go through JAAB at all. Thus, the most significant and frequent judicial moves, promotions, bypass even the illusion of competitive vetting. Under Article 35 of the Irish Constitution, judges are formally appointed by the President “on the advice of the Government.” In practice, the Cabinet, led by the Taoiseach and the Minister for Justice, controls the process. This means that cabinet ministers can and do nominate persons based on political proximity, ideological alignment, or long-standing relationships. In addition, there is no obligation to explain why one candidate is chosen over another, for as long as the candidate is legally qualified, the appointment cannot be challenged, no matter how partisan the choice may appear.

Appointments to the Court of Appeal and Supreme Court, in particular, have raised quiet concern about the influence of executive preference in shaping judicial tone, simply because appointments are made by those in power have a natural tendency toward the reproduction of ideological consensus. As discussed in a previous essay about the Catholic Church and control of schools, real power exists only in its reproducibility. Governments will rarely appoint judges whose interpretive philosophies challenge their core political agenda. We see the same phenomenon occur in the United States which explains why senate scrutiny of proposed judges can be highly politically charged events. If the law was neutral, then there would be no outcry over who is selected and who isn’t.

This leads to judicial homogeneity, especially on constitutional questions involving state power, social policy, or administrative action. Even personally, many of these appointments are entertained in the same country clubs, attended the same schools as political elites. In reality, the system creates the appearance of judicial restraint, when in fact the court may be engaging in ideological deference to the prevailing regime. The government may not ask a candidate about abortion, COVID restrictions, or religious liberty, but it rarely needs to, because it already knows where they stand, informally.

Nowhere was this more apparent than in the Waters and O'Doherty case, where two Irish citizens attempted to challenge the constitutionality of COVID emergency laws, laws which effectively restricted the movement, speech, and assembly of the population under the pretext of a sanitary emergency. Did they get a fair hearing? No-they were impeded legally before they even had the opportunity to argue the substance of their case. The key distinction is that something legal is not necessary politically neutral. They were, arguably, not ruled against after deliberation, but halted in their tracks, procedurally quarantined, one might say.

This is not neutral justice. This is judicial prophylaxis against political contagion, it is a court protecting not the Constitution, but the executive. For the common good, someone should have tested this very overreaching disportionate legislation, in particular the lame duck President, Micheal D, Higgins, using one of the few real weapons in the arsenal of an Irish president. Instead, Higgins stood by while fundamental freedoms were abridged, and suspended.

Such decisions are not isolated. They signal a broader and deeply troubling trend: the transformation of courts into instruments of governance, with selective rigor applied not according to law, but according to the political expedience of the day. The effect is not equal justice under law, but two-tiered justice under ideology. And underlying it all? The false assumption that the law appears neutral, wholly rational and immune from the vagaries of human frailties and corruptions.

We saw the same dynamic unfold in England, where rioters protesting the tragic deaths of three girls were sentenced with severity and swiftness. Yet when grooming gangs, operating for years in the underbelly of neglected towns, came to light, often involving minority perpetrators and institutional failures the sentences were, to say the least, unremarkable. We are told this is nuance. But nuance that aligns consistently with the preservation of state control and the avoidance of cultural criticism is no longer nuance—it is a political rendering of justice, filtered through fear and institutional cowardice.

Let us be clear: when judges begin to anticipate the political cost of their decisions more than their fidelity to constitutional principle, we no longer have a rule of law—we have a rule of preferences, and the Constitution becomes a stage prop for elite performance. What ensures this flagrant politicisation of the courts is the neglect in societal education that instructs the public that the law is, inevitably, flawed. As a catholic, Christ was put to death due to the indue influence of Jews upon a very weak politician and judge, Pontius Pilate.

There is no greater betrayal of judicial office than the avoidance of hard truths to protect the comfort of the powerful. And there is no greater fraud than to cloak such betrayals in the garments of process and neutrality.

We are a nation of laws. We have a constitution but if the means to render justice with regards to it become an illusion, then what does that say of the Constitution? If that Constitution is flawed, we may amend it, but that too is tainted by another illusion, of down- top democracy. If rights can be rewritten from the bench because a judge’s daughter argued persuasively over dinner as was the case of Justice Harry Blackmun who conceived the majority opinion of Roe v Wade, then we do not confer judicial power to represent justice but rather to indulge sentiment. The reality is that the law can be shaped by the contents of a breakfast, biography, or biography disguised as empathy.

In conclusion, the legal realist diagnosis is not wholly wrong: judges are human, and their decisions are not purely mechanical. The problem with human institutions is that they are established and run by humans. However, the realist prescription, a demand for more honesty about subjectivity, more room for pragmatic discretion, cures only the façade but not the disease. So where does that leave us? Well, the only place, that those of us defer to the authority of Justice, always knew to look, and that is God and His Church, and to recognise that true justice (although we should always strive to render it) may never be realisable on this plain but elsewhere, by justice Himself.