All Judges Are Political Except When They Are Not

We live in an age where one person's judicial "activist" legislating from the bench is another's impartial arbiter fairly interpreting the law. After the Supreme Court ended the 2000 Presidential election with its decision in Bush v. Gore, many critics claimed that the justices had simply voted their political preferences. But Justice Clarence Thomas, among many others, disagreed and insisted that the Court had acted according to legal principle, stating: "I plead with you, that, whatever you do, don't try to apply the rules of the political world to this institution; they do not apply." The legitimacy of our courts rests on their capacity to give broadly acceptable answers to controversial questions. Yet Americans are divided in their beliefs about whether our courts operate on unbiased legal principle or political interest. Comparing law to the practice of common courtesy, Keith Bybee explains how our courts not only survive under these suspicions of hypocrisy, but actually depend on them. Law, like courtesy, furnishes a means of getting along. It frames disputes in collectively acceptable ways, and it is a habitual practice, drummed into the minds of citizens by popular culture and formal institutions. The rule of law, thus, is neither particularly fair nor free of paradoxical tensions, but it endures. Although pervasive public skepticism raises fears of judicial crisis and institutional collapse, such skepticism is also an expression of how our legal system ordinarily functions.

This publication is the latest in a series of steps to assist judges in carrying out their onerous responsibilities, and represents a concise yet comprehensive set of principles addressing the many difficult ethical issues that confront judges as they work and live in their communities. It also provides a sound basis to promote a more complete understanding of the role of the judge in society and of the ethical dilemmas they so often encounter. Sections of the publication cover the following: the purpose of the publication; judicial independence; integrity; diligence; equality; and impartiality, including judicial demeanour, civic and charitable activity, political activity, and conflicts of interest.

Unjust by Design describes a system in need of major restructuring. Written by a respected critic, it presents a modern theory of administrative justice fit for that purpose. It also provides detailed blueprints for the changes the author believes would be necessary if justice were to in fact assume its proper role in Canada’s administrative justice system.

Over the past two decades, the United States has seen an intense debate about the composition of the federal judiciary. Are judges "activists"? Should they stop "legislating from the bench"? Are they abusing their authority? Or are they protecting fundamental rights, in a way that is indispensable in a free society? Are Judges Political? cuts through the noise by looking at what judges actually do. Drawing on a unique data set consisting of thousands of judicial votes, Cass Sunstein and his colleagues analyze the influence of ideology on judicial voting, principally in the courts of appeal. They focus on two questions: Do judges appointed by Republican Presidents vote differently from Democratic appointees in ideologically contested cases? And do judges vote differently depending on the ideological leanings of the other judges hearing the same case? After examining votes on a broad range of issues--including abortion, affirmative action, and capital punishment--the authors do more than just confirm that Democratic and Republican appointees often vote in different ways. They inject precision into an all-too-often impressionistic debate by quantifying this effect and analyzing the conditions under which it holds. This approach sometimes generates surprising results: under certain conditions, for example, Democrat-appointed judges turn out to have more conservative voting patterns than Republican appointees. As a general rule, ideology should not and does not affect legal judgments. Frequently, the law is clear and judges simply implement it, whatever their political commitments. But what happens when the law is unclear? Are Judges Political? addresses this vital question.

Comparing law to the American practice of common courtesy, this book explains how our courts not only survive under conditions of suspected hypocrisy, but actually depend on these conditions to function.

A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases. When conventional legal materials enable judges to ascertain the true facts of a case and apply clear pre-existing legal rules to them, Posner argues, they do so straightforwardly; that is the domain of legalist reasoning. However, in non-routine cases, the conventional materials run out and judges are on their own, navigating uncharted seas with equipment consisting of experience, emotions, and often unconscious beliefs. In doing so, they take on a legislative role, though one that is confined by internal and external constraints, such as professional ethics, opinions of respected colleagues, and limitations imposed by other branches of government on freewheeling judicial discretion. Occasional legislators, judges are motivated by political considerations in a broad and sometimes a narrow sense of that term. In that open area, most American judges are legal pragmatists. Legal pragmatism is forward-looking and policy-based. It focuses on the consequences of a decision in both the short and the long term, rather than on its antecedent logic. Legal pragmatism so understood is really just a form of ordinary practical reasoning, rather than some special kind of legal reasoning. Supreme Court justices are uniquely free from the constraints on ordinary judges and uniquely tempted to engage in legislative forms of adjudication. More than any other court, the Supreme Court is best understood as a political court.

Top US legal scholars and political scientists examine how the law shapes judges’ behavior and decisions, and what it means for society at large. Although there is a growing consensus among legal scholars and political scientists, significant points of divergence remain. Contributors to What’s Law Got to Do with It? explore ways to reach greater accord on the complexity and nuance of judicial decision making and judicial elections, while acknowledging that agreement on what judges do is not likely to occur any time soon. As the first forum in which political scientists and legal scholars engage with one another on these hot button issues, this volume strives to establish a true interdisciplinary conversation. The inclusion of reactions from practicing judges puts into high relief the deep-seated and opposing beliefs about the roles of law and politics in judicial work. Praise for What’s Law Got to Do with It? “Geyh (associate dean for research and John F. Kimberling professor of law, Indiana Univ. School of Law) is well qualified to edit this reader about the interaction of law and politics in contemporary society. The contributors . . . are among the very best scholars in the legal and political science realm . . . . The writing is lively and easy to follow for the somewhat sophisticated reader . . . . Highly recommended.” —Choice “Readers will find these essays fascinating, thoughtful and sometimes infuriating, as conventional disciplinary wisdom is defended, modified and refuted. The result is a terrific text for all students of the legal process.” —Mark A. Graber, University of Maryland “This volume pulls together an excellent cast to examine one of the most intriguing and most difficult questions in the study of law and politics today—what role does law play in the job of judging? There is a lot to learn in these pages, and this book does a fine job of pushing the conversation forward.” —Keith Whittington, Princeton University