All Judges Are Political—Except When They Are Not: by Keith Bybee

By Keith Bybee

We are living in an age the place one person's judicial "activist" legislating from the bench is another's neutral arbiter rather reading the legislation. After the preferrred courtroom ended the 2000 Presidential election with its determination in Bush v. Gore, many critics claimed that the justices had easily voted their political personal tastes. yet Justice Clarence Thomas, between many others, disagreed and insisted that the court docket had acted based on felony precept, declaring: "I plead with you, that, no matter what you do, do not try and follow the principles of the political global to this establishment; they don't apply."

The legitimacy of our courts rests on their potential to provide commonly appropriate solutions to arguable questions. but american citizens are divided of their ideals approximately no matter if our courts function on independent felony precept or political curiosity. evaluating legislations to the perform of universal courtesy, Keith Bybee explains how our courts not just live to tell the tale less than those suspicions of hypocrisy, yet truly rely on them.

Law, like courtesy, furnishes a way of having alongside. It frames disputes in jointly appropriate methods, and it's a routine perform, drummed into the minds of electorate by means of pop culture and formal associations. the rule of thumb of legislation, therefore, is neither really reasonable nor freed from paradoxical tensions, however it endures. even though pervasive public skepticism increases fears of judicial trouble and institutional cave in, such skepticism can be an expression of the way our felony process commonly features.

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Additional info for All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law

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110 If the rule of law is rightly understood, Cass argues, then the judiciary’s pervasive reliance on legal principle becomes clear. Even when considering the most contentious cases on the Supreme Court’s docket—including cases like Bush v. 111 In direct opposition to Cass, Terri Peretti has insisted that a law-centered view of judicial process is flatly wrong. ” 112 Many commentators demonize the Court’s essentially political nature because they fear politics and therefore incorrectly believe that a political judiciary is necessarily out of control.

83 How should this state of affairs be understood? Perhaps the most straightforward way to answer this question is to say that the public’s conflicting views and attendant suspicions pose a growing threat to judicial legitimacy. American courts periodically have been subject to political attacks in the past, with liberals and conservatives each raising questions about judicial power at different times. But the current period—with political perceptions of the judiciary shared by a large majority of the public—may well present new risks.

7 In principle, Spargo easily could have avoided landing in such a bind. He could have stuck to a single role and thus eliminated the appearance of hypocrisy. For example, he could have responded to his courtroom victory by insisting that judicial decisionmaking is a thoroughly political enterprise. The goal, Spargo might have claimed, is not to pretend that judges operate on the basis of neutral legal principles but to recognize that judges are political actors with power over controversial policy questions.

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