There's been much debate about Judge Sonia Sotomayor's choice of words and views. But not as much time has been spent defining the two primary views of law from which the debate stems.
Legal Realism “began in 1881 when Oliver Wendell Holmes, Jr. published ‘The Common Law’ attacking the orthodox view of law” by stating “‘the life of the law has not been logic, it has been experience.’ Legal realism ruled in the 1920s and 1930s.” As stated in West's Encyclopedia of American Law, "Legal realists maintain that common-law adjudication is an inherently subjective system that produces inconsistent and sometimes incoherent results that are largely based on the political, social, and moral predilections of state and federal judges." It has declined but still remains influential in how the law is looked at.
Legal Formalism can be described as a rule- and principle-based view of decision-making. It charges judges with basing their decisions on what the law says and not what the law should be. This was the prevalent view in the early years of this country and still is viewed by many as the proper way to decide cases. When looking at constitutional law, legal formalists believe it should be interpreted by its original meaning. Today, Justice Scalia is best known for interpreting the Constitution in this manner. The “plain meaning” of the law, in which “the words and phrases have their ordinary meaning,” should be the guide for interpreting statutes. The belief of this view is that Legal Formalism “provide[s] certainty, stability, and predictability to the law.”
These two views are at opposite ends of the legal spectrum. On one end, with Legal Realism, we find no absolutes. Rulings are dependent on the judge, their experiences, personal persuasions, and even how they feel that particular day. It can also depend on who the participants in the case are. Decisions should be made for the greater good. And if a judge perceives a wrong that the legislature hasn’t made right, they might create the law themselves. An example of this would be the legalization of gay marriage by the Massachusetts Supreme Court. In other words everything is relevant.
On the other end, Legal Formalism believes that absolutes exist. Cases are decided by specific rules, standards, and common meaning of the laws in force. The judge's experiences, persuasions, and how he or she feels play no part. Formalists do not view themselves as legislators but interpreters only.
Looking at Sotomayor's words and actions (such as her judgment in the Ricci case), we can gather at which end of the spectrum she would place herself. During her testimony before the Senate committee, she tried to come across more as a Formalist than a Realist. However, she didn't really distance herself from any of her comments. I find that, at best, disingenous and, at worst, dishonest. In her current position she is somewhat limited in her rulings because of precedence, but once she was on the Supreme Court, these restrictions would be eliminated.
What disturbs me more is that President Obama leans this way as well. One of his main criteria for Supreme Court justices is empathy. Should there be more vacancies on the Court during Obama's presidence, it is quite probable we will see a dramatic shift of the Court towards Realism. This will further alter the balance of powers between the three branches of the U.S. government.
Alexander Hamilton wrote about the judiciary in “The Federalist No. 78” that it was "the least dangerous branch" because it had "neither force nor will, but merely judgment." Naming justices like Judge Sonia Sotomayor to the Supreme Court will lead us down a path not meant by the Founding Fathers.