Judge Says: "Humanism Should Replace Formalism In The Courts"

Contemporary American judges have more in common with medieval monks than just wearing robes.

Today's courts are dominated by formalists. After reviewing decisions from the last several months — about guns, abortion and industrial pollution — they remind me of work by the 13th and 14th century scholastics, dominated by the monks who dictated thinking in Europe prior to the Renaissance.

Scholastics believed they could find truth using formal exercises handed down from Aristotle through men like St. Thomas Aquinas. They typically began their work by studying a book on the topic at hand by a renowned scholar.

Scholastics might then study documents related to that book. They would debate snippets of competing text. They would scrutinize minutely the meaning of individual words and then use formal logic to show that contradictions were merely mistakes of subjectivity by the reader.

This should sound familiar to readers of opinions by contemporary court formalists who prefer labels like "textualist" and "originalist." Read U.S. Supreme Court Justice Clarence Thomas' 2022 opinion holding that requiring license applicants to show the need for a handgun violated the Second Amendment in New York State Rifle & Pistol Association Inc. v. Bruen.[1]

Justice Thomas' approach intentionally did not consider the relevant human condition — mass shootings, out-gunned police officers and the like — and a concurring opinion by Justice Samuel Alito said the dissent erred by considering them.

Instead, Justice Thomas focused on the structure and definition of the words in the Constitution and then invoked scholarship from the "founding era" and the 19th century while laboring over the precise relevance of English history, only to have this antique scholarship disputed and contradicted by the ancient manuscript studies invoked by former Justice Stephen Breyer in dissent.

Indeed, to Justice Thomas it was not appropriate to consider whether the ruling might lead to more shootings. Instead, he wondered whether the court should give more weight to thinking from 1791 when the Second Amendment was adopted or to 1868 when the Fourteenth Amendment that applied to the states was adopted.

Like the scholastics, Justice Thomas focused on this process of scholarship as a way to weed out the subjectivity from his decision and gave us a "true" answer. Justice Alito used a similar approach in his 2022 decision in Dobbs v. Jackson Women's Health Organization where the court held that women had no constitutional right to an abortion.[2]

Justice Alito studied sources about women's historical rights to abortion while noting that it was not appropriate to consider what the court's ruling meant to specific women or the general public.

This other worldliness may dissatisfy many of us in the same way Renaissance humanists were dissatisfied with the pronouncements of church scholastics 700 years ago. It's because, when we look closely, we can see that the writer's preferences decided the issues more than logical compulsion.

In his Second Amendment decision, Justice Thomas continued the practice of giving no force to the words "well-regulated militia," which are often labeled a merely "prefatory clause" to the actual rule — its "operative clause."

He continued to discount the predominately military origins of what it meant to "bear arms." Instead, he echoed earlier rulings giving decisive weight to "the right of the people to keep … arms" and to his selective history.

In Dobbs, Justice Alito chose to rely on the Supreme Court's 1997 ruling in Washington v. Glucksberg that assisted suicide wasn't protected under the Constitution because it wasn't deeply rooted in American history and tradition.

By choosing this precedent over the forward-looking reasoning of cases like the Supreme Court's 1954 Brown v. Board of Education where the court overturned school segregation, he guaranteed that he would find, as was historically the case, that a woman had no rights, including to an abortion.

It's hard to credit claims of objectivity when we can see the decisive personal choices being made. It was no surprise that medieval scholastic monks usually sided with Catholic orthodoxy.

Was anyone surprised that Justice Thomas and Justice Alito voted against gun control and abortion rights? Wouldn't the justices have been more convincing if they admitted they were using personal judgment and then justified that judgment against current realities?

This isn't to criticize such conservatism in any century or to praise it either. It's to say that judges are more credible when they are open about their judgments and defend them in terms we can understand.

In favor of gun rights, Justice Thomas might have argued that the right to self-defense today is as vital as it ever was in a country of vast spaces and limited law enforcement.

Justice Alito might have argued that granting women a constitutional right to abortion strikes the balance between two lives, or one real and one potential life, too strongly in favor of the one over the other. It's the failure to place the real human issues at the center of the discussion that's the problem, even for those who agree with Justices Thomas' and Alito's views.

Today, the formula in the formalist approach dominates most legal opinions, including in business litigation.

Consider Judge Michelle Friedland's 2023 opinion about the Clean Water Act for the U.S. Court of Appeals for the Ninth Circuit in American Rivers v. American Petroleum Institute.[3]

There's nothing sinister about it. It's just typically inaccessible contemporary judicial reasoning. First, despite the ease of finding this information from the court's online docket, readers must slog through eight pages of information about the numerous parties and their status in the case.

The staff-created summary takes up three pages, and then three pages are needed to list all the lawyers. Is it helpful to readers to take up 14 pages before we see what the court has to say?

Mercifully, Judge Friedland begins her opinion by summarizing the holding: Courts remanding to an agency a challenge to a regulation can't vacate the regulation during the remand without finding the regulation unlawful. This is helpful, except we don't know why they can't, and why is what matters.

To know why, the court then takes us through the usual formula. The text of the law at issue and its background are described at needless length. While reading it we have no idea of why it's important. It's more of an incantation.

About 20 pages in, we get back to where the court started — can it vacate a regulation during a remand.

Like many opinions, but later than most opinions, the court then detours again to address challenges to the court's jurisdiction — now needlessly common in most cases. This takes another four pages, and, 25 pages in, we still haven't heard anything about the core matter — why the court can't vacate a regulation while it's remanded.

When the issue is finally joined, it's back to the sacred manuscripts. Precedent says that the court's equitable powers are limited by those of the English equity courts at the time of separation.

Thankfully, the court makes no deep dive in this subjective direction, but then it does something worse. It leans mostly on the fallacy that because a court hasn't vacated a regulation on remand before, the court can't do it. Why is that a bar? There is a first for everything.

Next, the opinion jumps to a scholastic favorite, the canon expressio unius est exclusio alterius — the law says we can set aside unlawful regulations, therefore we can't set aside regulations not held unlawful.

Of the opinion's 31 pages, only about five address the main issue. They are filled mostly by quotations from other courts. There are five or six sentences reflecting the court's own thinking. They rely mostly on dogma.

The least attention is given to what matters to the people and businesses involved in the case. Remanding the case leaves a potentially unlawful regulation in place — probably for years.

Perhaps the court should have thought more seriously about ruling on the legality of the regulation rather than spending years litigating precisely how to avoid the question by sending it back to the agency.

The decision records that the challenged regulation was adopted by the Trump administration. The Biden administration wants the remand to potentially remove the regulation.

By the time it gets around to doing it, there may be another Trump administration, DeSantis administration, or what have you. Courts decide what is law. Avoiding the task, delaying the task, often makes the courts useless.

Likewise, vacating a regulation without finding anything wrong with it is as unfair to businesses relying on it as it is to assume a person is guilty until proven innocent. The court's equitable powers certainly embrace finding at least this much common sense.

In short, the court would have done better to address the human values and consequences at stake then to spend most of its opinion on collateral matters only to resolve the case with a fallacy and a canon of construction.

Courts haven't always acted this way. Justice Oliver Wendell Holmes and Justice Louis Brandeis were perfect opponents of scholasticism and formalism. Justice Holmes declared that the law was alive, not "a brooding omnipresence in the sky," and that "the life of the law has not been logic but experience."

Similarly, Justice Brandeis understood that human values and consequences matter most in arguing that: "If we desire respect for the law, we must first make the law respectable." Where did we go wrong?

Perhaps it has just become easier for us to point to mechanical means of reaching a decision rather than dealing with the flesh, bones and blood of a living controversy. We say: "It's just the law talking, not me." But this should worry us. The triumph of formalism in American decision writing has coincided with an historic decline in respect for the courts.

To reverse this trend, courts should place humanism above scholasticism and formalism in decision making. Trial courts should say who wins and why under the basic legal principle at stake and the facts of the case before them — not the facts of some other case.

Appellate courts should develop understandable legal standards and justify them in human terms — how will they affect the fortunes of the parties in the case and the parties who come after them. Appellate courts should have the courage to speak in their own voices and not speak principally through disembodied quotations from decisions they have chosen to quote over other contrary decisions.

It's not hard. Indeed, decisions are easier to write when a judge sees them for what they are — their opinions. Matters of judgment. By a human. About other humans — standing alone or gathered in a business. Whatever a judge's perspective, we all have a stake in judges writing credible opinions for the sake of a credible judiciary and a more stable nation.

Judges should take this to heart. They should throw off formalism and speak to the parties in front of them and the nation at large as people trying earnestly to sort out the troubles of litigants using principles embodied in law and wisdom.

It's fine for judges to wear robes, but we would all profit if they would throw off their cowls and look us in the eye.


Thomas G. Moukawsher is a judge on the Connecticut Superior Court. He is the author of the forthcoming book, "The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It"