Order without Formalism

Abstract

The quest for order and structure is a powerful force underlying influential jurisprudential theories such as originalism and textualism. This Article suggests that Justice Ginsburg’s jurisprudence represented an alternative vision of order in federal judicial practice—one guided by commitment to judicial virtues like concern for the methodical administration of justice, sensitivity to context, and epistemic humility. In short, Justice Ginsburg’s jurisprudence highlights the possibility of order without formalism. Justice Ginsburg’s attachment to that vision emerges from her opinions on topics including jurisdiction, procedure, and stare decisis. The Article draws out implications of Justice Ginsburg’s approach for current controversies, such as the role of precedent and the meaning of judicial restraint.

Keywords: Formalism, textualism, originalism, civil procedure, federal courts