Gerald Sauer, Sauer & Wagner (Photo: Courtesy photo)

Imagine scientists manipulating data in order to prove their hypotheses. That would be considered a gross violation of scientific protocol, mandating the harshest sanctions against the researchers and rejection of their research.

But judges do it all the time. They reach decisions on matters before them, then find laws to support their predetermined result. They may ignore laws that dictate a different outcome and conveniently disregard prior decisions that have a bearing on the cases in front of them. The end result is a system akin to quicksand, in which attorneys can no longer rely on solid ground beneath them.

It's called “legal realism,” and it starts with the nation's highest court. On May 13, the U.S. Supreme Court ruled in Franchise Tax Board of California v. Hyatt that a private party cannot sue a state in the courts of a different state without its consent. The decision by Justice Clarence Thomas overruled the court's 1979 decision to the contrary in Nevada v. Hall. The dissent, written by Justice Stephen Breyer, warns about the danger of legal uncertainty posed by this decision. “To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the court will overrule and which cases are here to stay.”

Legal realism is nothing new. Its roots go back as far as Aristotle, and great legal minds such as Oliver Wendell Holmes and Jerome Frank have espoused some form of judicial realism. The movement arose from a belief that judges should not be forced to look solely to the laws in rendering opinions and that the logical application of legal rules and principles in a purely objective fashion will not produce true justice.

Judges are not automatons, and each judge brings to the bench a personal history and set of emotions and beliefs that cannot be checked at the door. We value these qualities in judges because they inject a human element into a complex system whose purpose is to improve the human condition. We rely on judges to consider a range of factors, including historical context and moral principles in rendering decisions, but laws remain the bedrock of legal analysis. Chief Justice Charles Evans Hughes famously observed, “at the constitutional level where we work, 90% of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.”

When judges use legal realism to decide cases on other grounds than law, they justify their decisions by cherry-picking whatever is needed to support those decisions. Part of a judge's charter is to interpret the law, but such interpretation must be bound by the doctrine of stare decisis and the letter of the law. Any other approach undermines the importance of both precedent and legislative intent. That precedents should sometimes be set aside is a given. Cases such as Dredd Scott demand correction; and significant historical, societal and technological changes should drive new legal interpretations. What we should not tolerate is a complete disregard for laws and case precedent in pursuit of an agenda.

In the course of my career, I've seen the worst side of legal realism. I've seen it at all levels, from trial courts through the California Supreme Court, and I've seen it become more brazen and more commonplace. At the trial level, realism is inescapable. Judges exert almost unlimited control, setting the length of time for arguments and cross-examination, determining what evidence the jury sees, asking questions that can influence a jury's perspective, dictating jury instructions, and—if the verdict doesn't align with his inclinations—ordering a new trial or judgment notwithstanding the verdict. In the judge's sole discretion, a seemingly simple case can be subjected to a judicially induced complexity multiplier that drives up both costs and years.

I once represented a young man with high-functioning autism who mistakenly believed that his uncensored comments on Facebook could not be seen by his professor at a local junior college. When the professor learned of the remarks, well after the class had ended, she notified the junior college, which took immediate steps to obtain a restraining order against my client. At the permanent injunction hearing, the judge allowed my client to have use of a courtroom accommodation: his mother's assistance to facilitate communications between him and the judge. The judge denied the injunction, finding that my client was not a threat to the professor; he had communication deficits and no prior history of violence or trouble with law enforcement. The judge's ruling was affirmed on appeal.

The professor decided to take another shot, filing in her individual capacity, and the new judge, who had taught at the same junior college, granted a restraining order barring my client from coming on campus. On the day of the permanent injunction hearing, the new judge acknowledged his conflict of interest and transferred the case to a commissioner. That commissioner, noting my client's absence from the courtroom—which had been excused by the judge—granted the injunction. No courtroom accommodation was provided to my client.

The appellate court issued an unpublished opinion—not reviewable by the California Supreme Court—that used a circuitous path to affirm the granting of the tainted injunction. In the first instance, the trial judge and appellate court applied the law with respect to granting courtroom accommodations and evaluating the evidence needed to obtain an injunction. In the second instance, my client's rights were disregarded by both the trial and appellate courts, more concerned with public perception than the law.

Understanding the political drivers that shape too many court decisions, as well as the politics that have shaped the current U.S. Supreme Court, it's just a matter of time before justices identify the “right cases” to overturn a wide swath of established and important legal precedents. The current politicization of the judiciary makes “legal realism” a real threat to America's legal system. It's time we took a serious look at how the law is being compromised by political agendas and find a way to require our judicial officers to adhere to established law and precedent in good faith, without manipulation to achieve a predetermined result.

Veteran civil trial attorney ​Gerald Sauer​ is a founding partner at ​Sauer & Wagner of Los Angeles. He focuses his practice on intellectual property, employment and business law​.