The Supreme Court's Noble Lie

Abstract

Is it ever acceptable for judges to lie to the American public? The Supreme Court believes that it is. In fact, for the better part of a century, the Justices have been propagating a lie that cuts to the very heart of judicial decision making. In public, the Justices profess strict adherence to legal formalism, but in private, they acknowledge that realist considerations influence many of their rulings. In this Article, I highlight this inconsistency and examine the Supreme Court’s reasons for perpetuating its public lie. I argue that the Justices are pursuing a strategy that has been in use since the time of Ancient Greece. Specifically, they are telling a “noble lie” to cultivate judicial legitimacy. Drawing upon work in democratic and legal theory, I maintain that this strategy is incompatible with the U.S. constitutional system. If the Justices are truly concerned with preserving judicial legitimacy, they should abandon the noble lie and begin an honest dialogue with the American people.

Keywords: judicial decision making; legal reaslism; legal formalism