Politics
Quo Vadis, Legal Realism?
The moving ideology behind hug-a-thug law enforcement is down, but not yet out.
Is the American criminal justice system rigged on behalf of defendants, even the guilty—and if so, why? And what is to be done?
Yes, there’s a conservative majority on the Supreme Court, and yes, Stephen Miller is on watch at the White House. Yet this is no moment for complacency. Too many times, in too many places, it’s Criminals 1, Victims 0. Let’s consider five illustrative news items, just from September 2025:
First, on September 6, the world learned of the murder of Iryna Zarutska, tragically slain in a viral video by someone who looks just like Decarlos Brown. Brown had been arrested 14 times before and been in and out—mostly out—of various facilities.
Second, on September 16, a New York City judge ruled that Luigi Mangione, accused of shooting a health insurance executive, will be convicted of, at most, second degree murder. So even though Mangione appears to have stalked, ambushed, cold-bloodedly killed, and then cooly fled, the calculated assassination is now being treated as a crime of impulsive passion.
Third, on September 19, Anibal Hernandez Santana allegedly fired three bullets, from a school zone, into a TV station in Sacramento. In California, a state that emphasizes gun control, Hernandez Santana was… immediately released on bail. The FBI then locked him up, no doubt to the relief of liberal locals, who now have at least one reason to like Kash Patel.
Fourth, on September 23, an illegal alien, Navarette Romero, accused of raping a Virginia woman in 2024, was judged incompetent to stand trial. Yet he was competent enough to get arrested on many earlier occasions, including for assault, battery, weapons possession, and indecent exposure.
Fifth, on September 24, Aaron Walker allegedly sucker-punched an off-duty policeman in a New York City subway station, knocking the cop off the platform and onto the tracks. Walker had 18 prior arrests.
Of course, anyone paying attention to the news can think of 100 more such cases—they are that common, month after month, year after year. Which is the point: the ubiquity of leniency is that obvious.
So let’s get right to the key question: How did the criminal justice get so dang liberal? Why is that we all know so much about “slap on the wrist,” “turn ‘em loose,” and “revolving door”?
This superstructure of mayhem and chaos has been built upon a substrate of ideas, undergirded, of course, by a different kind of foundation—liberal philanthropy.
Meet the philosophy known as legal realism. Its origins reach back to the late 19th century, although it gained momentum in the 1920s. Since then, this intellectual movement has become a cascade—an avalanche of criminality. That’s why so many Americans don’t feel safe and why we, as a society, can’t have nice things.
According to Cornell University, legal realism means “judges consider not only abstract rules, but also social interests and public policy when deciding a case.” In other words, the judicial realm must factor in other issues and ideas, outside and beyond the letter of the law itself.
Cornell points to Oliver Wendell Holmes, Jr. as a pioneering legal realist. Holmes wrote in 1881: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices.”
So there’s the legal realist argument: Yes, there’s the letter of the law, and yet we must consider the felt necessities, moral and political theories, intuitions of public policy, and prejudices. In other words, Do what you think best.
For better or worse, Holmes stands as a giant of jurisprudence. He served on the Supreme Court for three decades; a 2000 survey found his opinions to be the third-most cited in American law.
Another key figure in legal realism—he first called it “sociological jurisprudence”—was Roscoe Pound, dean of Harvard Law School from 1916 to 1936. “The classical juristic theory is that law may be deduced directly from justice,” Pound wrote, treating the old idea with modernist detachment. Much better, he argued, to “demand that social engineering be increasingly and continuously improved.” (To think: Once upon a time, “social engineering” was once a term of endearment, not a synonym for unintended consequences.)
Responding and upholding the paleo view, Fr. Linus J. McManaman, a professor of natural philosophy and ethics at St. Benedict’s College, wrote that “Pound attempts to build a juridical system without any juridical norms,” adding, “He expressly denies that law is a reflection of divine reason governing the universe or of a God-given order.” Admittedly, not everyone believes in God, but if they don’t, they still end up believing in something—such as, say, all the social science that goes into legal realism.
Interestingly, what Pound called “classical”—and others have persisted in calling natural law—has been retroactively dubbed “legal formalism.” The makers of that moniker knew what they were doing: The goal was to characterize the classical ideal as old-think, as dusty and desiccated, suitable for the ash-heap of history. So of course it was time for thinking as new as the new century.
Now it must be noted that Holmes died in 1935, and Pound in 1964. So while it’s hard to hold them responsible for all the craziness of current law, it’s impossible to hold them harmless: After all, having worked to disconnect the law from right-and-wrong morality, they opened the door to relativism.
Indeed, legal realism is the funnel through which social science and cultural taste-making flow into the legal system. It’s the rationale for non-prosecuting prosecutors, activist judges, soft-headed parole boards, and for all the other litigators, operators, and performers who make up the galaxy of laxity.
Of course, we shouldn’t assume that many outside of a few egghead law schools have ever even heard of legal realism. But they have heard of “liberalism,” or “progressivism,” because that’s what they are (even if, depending on the locale, they choose to deny it).
But by any name, we see their fruits all around us; they helped make possible, even inevitable, the killing of Iryna Zarutska.
The new faith in social science always faced pushback. In 1925, the New York Times quoted William Carter, a Brooklyn pastor, deriding the “easy-minded, mushy-hearted, and slobberingly sentimental” thinking that would “let the most hardened and bloody-minded criminals go free.” What was needed instead, Carter continued, was Bible-based thinking: “The Church says it’s a sin. And the wages of sin is death.” Yes, Carter also preached in favor of capital punishment.
We can pause to observe: If there’s one single issue that most separates the older vision of justice from the newer vision, it’s the death penalty. So yes, a century ago the Times printed the words of that outer-borough divine, and just as surely, the Manhattan smart set was rolling its eyes.
Yet still, even at the peak do-gooder liberalism, the thought that sly crooks were scamming the bleeding hearts persisted. In the song “Gee, Officer Krupke,” from the mid-century show West Side Story, a hood mockingly parrots what the social workers want to hear: “Hey! I’m depraved on account I’m deprived!”
Still, in those days, the carapace of liberalism was so strong that the murderers and maniacs simply bounced off. All the Hubert Humphreys and John Lindsays chorused together: We must focus, not on crime, but on crime’s root causes. Such an examination, guided by Ivied experts, led to the conclusion that society was to blame—which meant, of course, that the actual criminal was somewhere between a fellow victim and outright innocent.
This Matrix-like mental envelopment was so strong that even when Republicans won, their ideas lost. Thus Dwight Eisenhower, a moderate, inadvertently appointed activist liberals Earl Warren and William Brennan to the Supreme Court. Two decades later, three of Richard Nixon’s four SCOTUS appointees voted for Roe v. Wade. (That decision, of course, is perhaps the greatest triumph of legal realism in American history—the moment when the black robes donned white coats to opine on the fine points of medicine and abortion.) Two decades after that, George H. W. Bush was snookered by David Souter.
Still, for all its ideological power, legal realism confronted a limit—the capacity of the system to manage the multiplying claims of “due process,” “fairness,” and “social justice.” What happens when anyone can claim that just about anything is a contributing factor to crime and is thus a mitigating factor in favor of the criminal? We have found out.
Each passing year brings some new excuse for crime dressed up as social- or medical science. Baby Boomers remember the “Twinkie defense,” a successful legal effort in the 1970s, citing sugar consumption as a reason to commit double murder. Since then, we’ve seen defenses based on structural racism, climate change, social media addiction, and a few hundred more du jours. So bring on the gravy train of expert witnesses, flamboyant arguments, and new social constructions. How long before we see defenses based on some nefarious aspect of AI?
This multiplicity of causations has given the legal system a Prufrockian sense of doubt and hesitation. Indeed, since it’s run by liberals, many of them self-hating, how can they be sure that they’re the good guys? That they themselves aren’t the guilty ones? That criminals, in their authenticity, aren’t speaking some deeper truth?
Yes, it’s ironic that legal realism cracked up on its inability to say no. It can’t say no to pettifoggery; and that’s why, for example, the case of Luigi Mangione has already dragged on nearly a year, with even the beginning of the trial nowhere in sight. The system also can’t say no to the defenders of Decarlos Brown, who persuaded a judge to send their client to a state psychiatric hospital, where he will reside for at least 60 days of “observation.”
We can say of these, and myriad other cases, that the goal is always the same—file every motion, push every button, bollix the system, frustrate the Man, invoke Cloward-Piven.
Yet eventually, the normies woke up and smelled the wokeness. The Silent Majority had never been asked for its opinion on legal realism and crime liberalism. Knowing that such a query would be ill-received by the proles, legal realists and liberals were shrewd enough not to pose it. Instead, the relativist left marched through the institutions, acceding to each criminal claim and psychopathic demand, hoping that the public would not notice that justice had been made intersectional—and thus ridiculous.
The stone-cold truth: Legal realism is unrealistic, because it doesn’t have any threshing mechanism—as that rejected, retro canon, natural law, had once provided—for weeding out the absurd and the destructive.
Welcome to the backlash. But hey, we’ve already met Stephen Miller. In a recent appearance on Fox News, the White House Hammer defined the Democratic Party as “an entity devoted exclusively to the defense of hardened criminals, gang-bangers, and illegal, alien killers and terrorists.”
To put it mildly, not every American agrees with Miller, and yet plenty do. CNN’s Steve Enten marvels at polling data showing Republicans winning the crime issue by 22 points.
As we have seen, conservatives have won the politics of law and order in the past and still lost the policy in judges’ chambers. Will that happen again? The Federalist Society is training cadres in legal formalism’s sibling, originalism, and FedSoc is now bolstered by the overlapping Millerites.
Thanks to these battering rams, we’re seeing things that people wouldn’t otherwise believe. Walls being built on the border, drug ships on fire in the Caribbean, troops patrolling the cities, and the federal death penalty being restored.
This is how criminal liberalism, the debauched descendant of legal realism, can be undone, at least in places that yearn for normalcy. And if one piece of the puzzle is intellectual, the other piece is financial.
We all know that George Soros has financed ultra-progressive prosecutors across the country. Indeed, attention-paying right-wingers have come to regard him as a Magneto-like figure of malevolence. The Capital Research Center has documented his “philanthropic” links to antifa. Indeed, CRC has further connected the dots on like-minded organizations, including Arabella Advisors, Tides, and, of course, The Ford Foundation.
Quo vadis, legal realism? As Eric Hoffer said of movements, they start out as a crusade, turn into a business—and end up as a racket.
So now, can Miller & Co. bust this racket? We know President Trump is on board, and that clinches the support of half the country. Indeed, the Trump administration now boasts a domestic counter-terror strategy. By this light, Soros & Co. are to be seen as somewhere in the same zone as domestic communists in the middle of the last century and the Islamists of this century.
But of course, Trump, Miller, and the Republicans don’t speak for the other half of the country, the Democratic half. This author has been writing for years that red states and blue states are going their separate ways. So now let’s add intense anti-crime, and maybe even counter-terror, to the roster of red-blue rumble-issues.
To be sure, criminal liberalism is so terrible that even some Democrats are abandoning it, even as they stick with their party. Yet at the same time, blue-state elites hate Trump so much that it’s easy to foresee massive resistance to the coming Miller Raids. George Soros and his activist heir Alex aren’t exactly populists, but they could prove to be folk heroes to Blue, as local juries simply nullify Bondi-ite prosecutions.
It’s been a long time since legal realism. It went from young reformist cause to cynical old swindle, and yet now that it’s under siege, it could yet find a new life as #Resistance.
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