The Active Virtues

56 Pages Posted: 6 Apr 2019

See all articles by Michael D. Gilbert

Michael D. Gilbert

University of Virginia School of Law

Mauricio Guim

Instituto Tecnológico Autónomo de México (ITAM) - Law School

Date Written: April 3, 2019

Abstract

The Supreme Court exercises “passive virtues” when it avoids divisive cases. This avoidance, Alexander Bickel claimed, preserves the Court’s legitimacy. This Article inverts the logic. Whereas Bickel argued that divisive cases, meaning cases where law and politics collide, weaken the judiciary, we argue that “congruent” cases, meaning cases where law and politics align, strengthen the judiciary. When judges attract congruent cases—when they seek disputes to enhance their legitimacy—they exercise active virtues. We develop the theory of active virtues and give examples of its use. The examples come from the U.S. Supreme Court and tribunals in Mexico and Pakistan, and they involve topics like pirates, police, and exploding oil stoves. Our examples lead to a typology of case attraction strategies. We also consider the conceptual and normative implications of active virtues. In theory, courts are supposed to wait passively for cases to arise. In practice, courts attract cases. This is not necessarily a violation of the judicial ideal. On the contrary, by promoting courts’ legitimacy, active virtues can make that ideal possible.

Keywords: passive virtues, case selection, docket control, judicial legitimacy, judicial independence, judicial power, constitutional design

Suggested Citation

Gilbert, Michael and Guim, Mauricio, The Active Virtues (April 3, 2019). Virginia Public Law and Legal Theory Research Paper No. 2019-21. Available at SSRN: https://ssrn.com/abstract=3366512

Michael Gilbert (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Mauricio Guim

Instituto Tecnológico Autónomo de México (ITAM) - Law School ( email )

Río Hondo No.1
Álvaro Obregón, Mexico City
Mexico

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