Out: Condemning "judicial activism." In: Condemning "legal realism"!

Unlike judicial activism, a loaded label few judges would accept, Legal Realism has been embraced wholly or partially by prominent jurists from across the political spectrum, from the late Supreme Court Justice Benjamin Cardozo, a liberal, to the federal appeals court judge Richard Posner, an influential conservative. Among the most famous quotations by the late Supreme Court Justice Oliver Wendell Holmes Jr. is a classic statement of Legal Realism: “The life of the law has not been logic; it has been experience.”

Yet conservative legal activists assert Legal Realism is just code for judicial activism and is far outside the mainstream of American law…

“Everybody who knows anything knows that Legal Realism is a description of what judges really do,” he said. “I give [Sotomayor] a lot of credit, frankly, for talking about it openly. It’s unusual for a sitting judge to say it openly, because judges don’t want to attract the political heat from acknowledging what everyone already knows, which is that appellate judges especially have to make new law – that they can’t just apply the law as written.”