• Selected
• Entire List

Abstract:
In the United States, courts are publicly defined by their distance from politics. Politics is said to be a matter of interest, competition, and compromise. Law, by contrast, is said to be a matter of principle and impartial reason. This distinction between courts and politics, though common, is also commonly doubted - and this raises difficult questions. How can the courts at once be in politics yet not be of politics? If the judiciary is mired in politics, how can one be sure that all the talk of law is not just mummery designed to disguise the pursuit of partisan interests? In one sense, an ambivalent public understanding of the courts and suspicions of judicial hypocrisy pose a threat to judicial and democratic legitimacy. Yet, in another sense, public ambivalence and suspected hypocrisy may actually open up space for the exercise of legal power. I illustrate and critique the enabling capacities of ambivalence and hypocrisy by drawing an analogy to common courtesy.

Judicial decisionmaking, politics, culture, courtesy, hypocrisy

Abstract:
Polls show that a significant proportion of the public considers judges to be political. This result holds whether Americans are asked about Supreme Court justices, federal judges, state judges, or judges in general. At the same time, a large majority of the public also believes that judges are fair and impartial arbiters, and this belief also applies across the board. In this paper, I consider what this half-law-half-politics understanding of the courts means for judicial legitimacy and the public confidence on which that legitimacy rests. Drawing on the Legal Realists, and particularly on the work of Thurman Arnold, I argue against the notion that the contradictory views must be resolved in order for judicial legitimacy to remain intact. A rule of law built on contending legal and political beliefs is not necessarily fair or just. But it can be stable. At least in the context of law and courts, a house divided may stand.

This paper was prepared for presentation at the “What’s Law Got to Do With It?” Conference, Indiana University School of Law – Bloomington, March 27-28, 2009. Please do not cite or quote without permission. The author thanks Ellen Palminteri and Kyle Somers for their valuable research assistance.

Judicial Legitimacy, Public Opinion, Legal Realism, Thurman Arnold

Abstract:
Federal court confirmations in the United States have become openly political affairs, with partisans lining up to support their preferred candidates. Matters in the states are not much different, with once sleepy judicial elections changing into ever more contentious political slugfests, replete with single-issue interest groups and negative campaign advertising. Once on the bench, judges at every level find themselves dogged by charges of politically motivated decisionmaking. In Bench Press, a first-of-its-kind collection of essays, figures from the academy, the bench, and the press reflect on the state of the American judiciary. Using the results of a specially commissioned public opinion poll as a starting point, the contributors examine the complex mix of legal principle, political maneuvering, and press coverage that swirl around judicial selection and judicial decisionmaking today. Essays examine the rise of explicitly political state judicial elections; the merits of judicial appointments; the rhetoric of federal judicial confirmation hearings; the quality of legal reporting; the portrayal of courts on the Internet; the inevitable tensions between judges and journalists; and the importance of regulating judicial appearances. The Two Faces of Judicial Power is the introduction to Bench Press. It assesses popular conceptions of the courts and provides an overview of essays in the volume.

Judicial Independence, Judicial Elections, Politics, Media, Public Opinion

Abstract:
This paper proposes that ambiguous arguments play a crucial role in the management of radical disputes in democratic deliberation. Lofty though it might be, public reason is an impoverished ideal, and its celebrated role in democratic deliberation is vastly overrated, particularly among liberal theorists. In the courts of law and in the larger world, radical disputes unfold as messy, incomplete, ambiguous arguments are proposed by parties. This does not mean that all communication between parties must break down because parties do not abide by the rules of argumentation and evidentiary reasoning. It only implies that the language of ambiguity offers possibilities for democratic deliberation that are different from those presented in the discourse on public reason. Ordinary people have strong opinions but their arguments are, more often than not, incompletely theorized - a fact that by no means indicates that such arguments are failures. We illustrate our argument by examining the ambiguous, fragmented use of American Dream talk in the debate over same-sex marriage.

Legal Reason, Public Reason, Same-Sex Marriage, American Dream

Abstract:
In this paper, I argue that the expansion of LGBT rights requires engagement with the common practices of courtesy that confer and reinforce social standing. In order to understand what this engagement with good manners might look like, I outline the basic features of common courtesy and illustrate how courtesy depends on a mix of utility, habit, and pleasure. I argue that if the practice of courtesy is to be re-appropriated, then all three of the factors that underwrite courtesy must be addressed. I also consider the general possibilities for re-configuring courtesy. And, in this vein, I suggest that the law may provide an important means by which the re-appropriation of common courtesy can occur.

Gay Rights, Same-Sex Marriage, Courtesy, Politeness, Legal Process

Abstract:
Although members of the Supreme Court have debated the legitimacy of affirmative action for more than 20 years, they have yet to agree on a clear conclusion. Rather than simply supporting the proliferation of racial preferences or directly mandating strict colorblindness, the Court has repeatedly re-affirmed a more ambiguous settlement: it has allowed a little bit of affirmative action, but not too much. This article argues that such ambiguous judicial results serve an important political purpose. By weakly endorsing some racial preferences while leaving the overall validity of affirmative action open to question, the Court has created a space for on-going judicial action in the context of modern interest-group politics. Thus, even though the Court's jurisprudence of affirmative action is riddled with unresolved tensions and uncertain logic, it nonetheless helps the judiciary adapt to the dynamics of American politics.

Abstract:
Is it ever legitimate to redraw electoral districts on the basis of race? In its long struggle with this question, the U.S. Supreme Court has treated race-conscious redistricting either as a requirement of political fairness or as an exercise in corrosive racial quotas. Cutting through these contradictory positions, Keith Bybee examines the theoretical foundations of the Court's decisions and the ideological controversy those decisions have engendered. He uncovers erroneous assumptions about political identity on both sides of the debate and formulates new terms on which minority representation can be pursued.

As Bybee shows, the Court has for the last twenty years encouraged a division between individualist and group concepts of political identity. He demonstrates that both individualist and group proponents share the misguided notion that political identity is formed prior to and apart from politics itself. According to Bybee, this "mistaken identity" should be abandoned for a more flexible, politically informed understanding of who the "people" really are. Thus, a misdirected debate will be replaced by a more considered discussion, in which the people can speak for themselves, even as the Court speaks on their behalf. Engaged in the politics of minority representation, the Court will be able to help citizens articulate and achieve more fruitful forms of political community.