Pragmatism and Judgment: A Comment on Lund

Nelson Lund's article is entitled The Rehnquist Court's Pragmatic Approach to Civil Rights.' I raise three questions about his analysis, two of which take off from the phrasing of his title. First, calling the present Court the Rehnquist Court is obviously easy, and I do it myself in the subtitle of my forthcoming book. Professor Lund has of course taken his charge from the conveners of this Symposium, and I do not mean to criticize him for doing so. Still, it may be worth pointing out that convening a symposium that encourages people to think in terms of "the Rehnquist Court" might not be the most intellectually productive approach to understanding the contemporary Supreme Court . . . Second, I wonder about describing the present Court as pragmatic. The term seems to me to have become an all-purpose and almost meaningless label for quite traditional judicial decisions. One reason is that pragmatism is a theory, that is, an account offered by outsiders of a practice they observe. Judges - or perhaps courts as aggregations of judges - are almost inevitably pragmatic in the following sense. Judges attempt to develop legal rules that in their judgment will make society and government "work" reasonably well, and revise those rules when things seem not to be working as well as they could. Even the most "theoretical" judges do so, because such judges adopt those theories that, in their view, will make society and government work well overall.