Judicial Discretion in Constitutional Cases

49 Pages Posted: 24 Nov 2010 Last revised: 9 May 2011

See all articles by Todd E. Pettys

Todd E. Pettys

University of Iowa - College of Law

Date Written: November 23, 2010


A popular but damaging dichotomy is hindering citizens' ability to talk intelligently and constructively about the constitutional work of the courts. The "legitimacy dichotomy" holds that, when adjudicating constitutional disputes, judges either obey the sovereign people’s determinate constitutional instructions or illegitimately trump the sovereign people’s value judgments with their own. The legitimacy dichotomy leaves little or no room for the possibility that an array of conflicting interpretations of the Constitution might be reasonably available to a judge; it leaves little or no room, in other words, for judicial discretion. This article begins by examining the legitimacy dichotomy from three different vantage points: evidence which suggests that rhetorical invocations of the legitimacy dichotomy mask more complex beliefs about the role of judicial discretion in constitutional adjudication; Justice Kagan’s critique of the now-famous umpire analogy during her confirmation hearing in June 2010; and the debate between Justice Stevens and Justice Scalia in McDonald v. City of Chicago about the extent to which judges may properly exercise their discretion when adjudicating questions of substantive due process. The article then suggests that law schools are inadvertently encouraging at least some of their students to believe that judges’ discretion is almost entirely unconstrained and that judges often behave as democratically illegitimate actors. Finally, in an effort to provide law students and others with an understanding of constitutional adjudication and of constitutional change that is both descriptively accurate and democratically legitimate, the article draws connections between democratic constitutionalism and judicial discretion, and then offers metaphors for explaining that relationship.

Keywords: judicial, judges, discretion, constitution, constitutional interpretation, legitimacy, dichotomy, umpire, democratic constitutionalism

JEL Classification: K10, K19, K40, K49

Suggested Citation

Pettys, Todd E., Judicial Discretion in Constitutional Cases (November 23, 2010). Journal of Law and Politics, Vol. 26, p. 123, 2011, U Iowa Legal Studies Research Paper No. 10-36, Available at SSRN: https://ssrn.com/abstract=1717074

Todd E. Pettys (Contact Author)

University of Iowa - College of Law ( email )

Melrose and Byington
Iowa City, IA 52242
United States
319-335-6814 (Phone)
319-335-9098 (Fax)

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