6 ideas
Legal decision-making rests on 'everyday pragmatism' — a practical disposition to judge actions by their reasonable consequences rather than on conformity to a priori rules or moral theory. This is distinct from the academic philosophy of pragmatism (Peirce, Dewey, Rorty), which judges have no need to master to decide cases well.
A pragmatic judge decides cases by assessing the likely consequences of competing rulings for the parties and for the future, rather than by mechanically applying precedent, text, or abstract principle. Legal doctrine functions as a repository of accumulated experience and a constraint on costs, not as a source of logically compelled outcomes.
Concept-driven inquiry starts from definitions and seeks the essence of things like 'law' or 'democracy,' generating sterile semantic disputes. Activity-driven inquiry instead asks what work a concept does and how systems actually operate, treating words as tools for getting things done rather than mirrors of metaphysical realities.
Concept 1 democracy imagines citizens deliberating toward a common good guided by reason and civic virtue; Concept 2, the realistic model, treats democracy as competition among political elites for the votes of a largely passive, self-interested electorate. The second view recasts elections as a method for peacefully replacing rulers and constraining their abuses, not for expressing a collective will.
Judges should evaluate the institutional capacities of courts against legislatures and agencies before deciding how far to reach into policy questions. Recognizing that courts lack the fact-finding tools, democratic accountability, and forward-looking information of other branches counsels restraint where those branches are better equipped.
Abstract moral and political philosophy provides no reliable algorithm for deciding contested cases, because reasonable people disagree on first principles and theory rarely dictates concrete outcomes. Judges therefore do better appealing to widely shared practical intentions and observable consequences than to grand normative systems.