Afterword
The average Supreme Court judge, I believe, takes his constitutional theory very
seriously . ... To them such phrases as the separation of powers, checks and
balance, ;udiciai independence, national supremacy, states' rights, freedom of
contract, vested rights, police power, not only express important realities, they
are
realities-they are forms of thought with a vitality and validity of their
own.-Edward Corwin
(1925)'
The
Lochner
era ushered in a change in the way American legal scholars
thought about courts and judicial behavior. As people's experiences
began to diverge from the assumptions underlying the jurisprudence of
Lochner-assumptions
about how individuals relate to one another in a
free market and the possibility of class-neutral exercises of state power-
members of the the legal community began to question whether judges
were "really" basing their decisions on the principles they espoused,
principles that to many seemed increasingly biased and detached from
reality.
It
was not long before legal "realists" concluded that legal mate-
rials were merely rhetorical devices used by judges to mask (and hopefully
legitimize) the exercise of raw power. Even some judges began to agree
with the realists' conclusion that judges really decided cases on the basis
of hunches and then justified them with whatever materials were handy.2
Realists sought to transform the legal community's conception of
jurisprudence: what had been traditionally understood to be a legal
science was now to be treated as a politically charged effort to impose an
image of rationality and order on what in fact were exercises of political
will and conditions of disorder. This belief in the theatrical, mystical,
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