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49 Rutgers L. Rev. 859 (1996-1997)
Judicial Legitimacy - Judith and Marc Joseph Lecture

handle is hein.journals/rutlr49 and id is 877 raw text is: JUDICIAL LEGITIMACY- JUDITH AND MARC JOSEPH LECTURE November 29, 1984 Drew University Madison, New Jersey I. INTRODUCTION Most people have some idea of how Congress and legisla- tures make law, and how presidents and governors often pro- pose and, in effect, also make law-and why. Less is generally known about judges, who are thought to decide cases on the basis of what the law is. Where and how they find that law is my subject. I suggest at the outset that no one really knows, including the judges. Judge Cardozo, after being a judge for seven years, and eleven years before becoming a Justice of the United States Supreme Court, expressed his opinion: The work of deciding cases goes on every day in hundreds of courts throughout the land. Any judge, one might suppose, would frnd it easy to describe the process which he had. fol- lowed a thousand times and more. Nothing could be farther from the truth. Let some intelligent layman ask him to ex- plain: he will not go very far before taking refuge in the ex- cuse that the language of craftsmen is unintelligible to those untutored in the craft. Such an excuse may cover with a semblance of respectability an otherwise ignominious retreat. It will hardly serve to still the pricks of curiosity and con- science. In moments of introspection, when there is no longer a necessity of putting off with a show of wisdom the uniniti- ated interlocutor, the troublesome problem will recur, and press for a solution. What is it that I do when I decide a case?1 859 1. See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PRO- CESS 9-10 (1921).