The Active Virtues

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