Judicial Character (and Does it Matter)
Constitutional Commentary, Forthcoming
77 Pages Posted: 8 Aug 2009
Date Written: August 6, 2009
This Essay, forthcoming in Constitutional Commentary, discusses three recent books about judicial decision making: Richard A. Posner's How Judges Think, H. Jefferson Powell's Constitutional Conscience: The Moral Dimension of Judicial Decision, and Daniel A. Farber and Suzanna Sherry's Judgment Calls: Principle and Politics in Constitutional Law. It uses them as the foundation for an exploration of the nature and role of judicial character, or judicial virtue, in constitutional judging.
All three books have in common the rejection of any single comprehensive theory of or approach to constitutional judging. What divides them is the extent to which they focus descriptively on the "is" of judging or normatively on the "ought" of judging: here, Posner and Powell represent the respective poles, with Farber and Sherry located somewhat awkwardly in the middle. I argue that in order for us to find some livable space between the "is" and the "ought," we must take the aretaic turn: we must focus on the nature of judicial character or virtue and what it demands of the judge. Drawing on work on virtue ethics and virtue jurisprudence, I explore the role of judicial virtue and its relationship to constitutional decision making. I argue that the aretaic turn may help us to develop an understanding of judging that is both consistent with the judicial "is" and productive of new ways of thinking about the judicial "ought." In particular, I argue that reflection on the meaning and implications of the judicial oath may provide a fertile space in which to recapture and reconceive a normative sense of the judicial virtues without neglecting the real-world motivations and limitations that act on judges. This Essay is a prelude to larger work on the relationship between oaths and the Constitution.
Keywords: posner, powell, farber, sherry, judicial decision making, judging, constitutional law, legal process, aretaic, virtue ethics, virtue jurisprudence, judicial oath
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