Legal Realism Redux

If you have been paying attention, you probably are aware that the United States Supreme Court is hearing two cases related to gay marriage this week. About ten days ago, we learned that Senator Rob Portman (Ohio - Republican) has made a change of heart on the issue after his son told him he was gay. Just yesterday, the internet was abuzz with the news that Chief Judge John Roberts' lesbian cousin will be attending these hearings. This is on top of the articles, discussing Justice Scalia's "fear" of gays and lesbians.

All these events together cause me to think that perhaps legal realism, the idea that the justices personal values, beliefs, and experiences shape their jurisprudence, maybe is more telling than some of the fancy legal theories that scholars use to explain the Court's decisions. I know that when I was researching legal responses to racial discrimination, it always seemed like Justices never quite knew what to make of race-based claims in part because they drew almost exclusively on their experiences when making decisions. I came to think that judges took "judicial notice" (i.e. took their own perceptions as fact) when faced with racial claims.

It seems like many court-watcher think that may be happening now in these gay marriage cases. Does this signal the return of legal realism? I am not sure, but I do hope that the Chief Justice's cousin is correct when she says she trusts him to make a fair and just decision.