In a recent article in the Daily Journal [subscription required], Emily Green reads the available tea leaves to assess the likely judicial philosophy of recent California Supreme Court appointee Mariano-Florentino Cuellar. Green points out that Cuellar’s writings endorse legal realism, which, in her words, “champions the idea that courts can and should consider the law in a broader social and political context when making their decisions.” Green notes that Cuellar wrote in his 2001 doctoral thesis that “ ‘[a]s far as the law is concerned, political responses are actually fair game for interpreters [i.e., judges] to consider when crafting their decisions.’ ” The central idea of Cuellar’s thesis, Green adds, is that, in the complex relationship between courts and elected officials, judicial decisions are not the last word on an issue but simply a starting point, “ ‘the tip of the iceberg.’ ” Green properly contrasts Cuellar’s legal realism with legal formalism, the notion that judges should decide cases based on the strict language of the law and the facts, without regard for social context or policy outcomes. Given his appointment by the left-of-center Governor Brown, Cuellar’s embrace of legal realism probably will not come as much of a surprise to Court watchers.

Just as important as Cuellar’s likely judicial outlook is his possible judicial temperament. And in that area Green may have shed some much-needed light. She describes Cuellar as cautious and sensitive to political realities, quoting his fellow Stanford Law prof Hank Greely as saying Cuellar is “ ‘a pragmatic Democrat . . . Very policy-oriented, very practical, very realistic. He has a good sense of how things work and is unlikely to go off on futile crusades.’ ” Green also quotes Caroline Frederickson, executive director of the progressive American Constitution Society—on whose board Cuellar served with Justice Goodwin Liu (appointed to the Court by Governor Brown in 2011). Much like Greely, Frederickson describes Cuellar as “ ‘[t]houghtful, careful, thorough. . . . He thinks deeply before he makes suggestions or expresses himself.’ ”

Such forecasts are excellent fodder for discussion and debate. But as watchers of the U.S. Supreme Court know, predicting judicial behavior before a candidate even dons the robe is a dicey endeavor. As tempting as such prognostication is, we would do well to remember Winston Churchill’s observation: “It is always wise to look ahead, but difficult to look further than you can see.”