Sadomasochistic Judging

Constitutional Commentary, Vol. 35.2, pp. 437-70

34 Pages Posted: 9 Dec 2019 Last revised: 28 Jan 2021

Date Written: June 30, 2020

Abstract

What makes a judicial decision legitimate? Common answers include fidelity to legal texts and precedent, coherence to natural or intersubjectively agreed upon norms, or endorsement from democratically accountable actors. But while these criteria each have strong theoretical appeal, their practical usefulness as a means of validating any contested judicial decision is often limited. In cases of legal indeterminacy or the proverbial “hard cases”, many different outcomes can at least claim to fulfill these requirements. A decision which genuinely fulfills legitimacy criteria and one which is merely going through the motions often will be observationally equivalent.

As a means of practically establishing legal legitimacy in a way verifiable to external observers, pain is an underappreciated but important element of judicial practice. Judges routinely brag of rendering decisions which are painful to them — upholding “uncommonly silly laws”, protecting “speech that we hate”, reluctantly permitting terrible injustices to persist because the law “ties our hands”. Far from being relegated to the embarrassed fringes, such cases play a central role in establishing judges as legitimate actors bound by law, and in many ways represent the demarcation line between good and bad judges — a good judge is one who does not flinch even in the face of great pain. Yet it should be clear that there is great risk in tying the validation of judges to the infliction and receipt of pain. To the extent judges are socialized into associating pain with legitimacy, the legal system that emerges will likely be one which needlessly and gratuitously inflicts pain.

(Book review of Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court)

Keywords: judicial legitimacy, judicial review, sadomasochism

Suggested Citation

Schraub, David H., Sadomasochistic Judging (June 30, 2020). Constitutional Commentary, Vol. 35.2, pp. 437-70, Available at SSRN: https://ssrn.com/abstract=3491535

David H. Schraub (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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