Sunstein on Dworkin.

Cass Sunstein reviews Ronald Dworkin's "Justice in Robes." Excerpt:

Dworkin agrees that judges generally must be faithful to existing legal materials, but he insists that they are not merely "following" something. The law is often unclear. Dworkin contends that when resolving real disputes, judges must select the principle that puts previous decisions in their most attractive light. For this reason, the task of interpretation requires judges to think seriously about what morality requires, and they might well end up moving the law in dramatic and novel directions. ...

... Dworkin's central arguments are right. Legal reasoning typically works by attempting both to "fit" past decisions and to "justify" them, by making them into sense rather than nonsense. Too much of the time, politicians and judges ignore the fact that judicial judgments, about principle and policy, play an inevitable role in determining what the law is. ...

Dworkin's second claim is that the Supreme Court should adopt an approach that calls on the justices to make large-scale judgments about the meaning of our highest ideals. I think that the Court should, most of the time, refuse to assume such a role. It should refuse to do so because fallible judges ought to avoid engaging, in particular cases, with the most fundamental problems in morality and politics. No theory of interpretation can avoid moral and political controversy, but it is possible to adopt, on moral and political grounds, a theory of interpretation that asks judges to decline to deploy their own moral and political judgments as weapons against the democratic process.