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Geyh on Judicial Politics

By Lawrence Solum

Charles G. Geyh (Indiana University School of Law-Bloomington) has posted Judicial Politics, the Rule of Law and the Future of an Ermine Myth on SSRN. Here is the abstract:

According to a Renaissance myth, the ermine would rather die than soil its pristine, white coat. English and later American judges would adopt the ermine as a symbol of the judiciary?s purity and commitment to the rule of law. This ?ermine myth? remains central to the legal establishment?s conception of the judicial role: independent judges, the argument goes, disregard extralegal influences and instead follow the law strictly. In contrast, political scientists had long theorized that judicial independence liberates judges to disregard the law and substitute their extralegal policy preferences. A recent spate of interdisciplinary research, however, has led to an emerging consensus among law professors and political scientists that judges are subject to a complex array of legal and extralegal influences. This emerging scholarly consensus stands in stark contrast to the simplistic and dichotomous public policy debate, where court critics seek to control ?activist? judges, whom they accuse of ignoring the law and legislating from the bench, while the legal establishment defends judges and their independence from attack, citing the ermine myth that independent judges are committed solely to upholding the law.

This article explores the future of the ermine myth that has guided the legal establishment for centuries. It argues that as the public gradually internalizes the view it shares with scholars that judges are subject to legal and extralegal influences, the legal establishment?s claims that independent judges are influenced by law alone will become increasingly unsustainable. That, in turn, will culminate in an erosion of rule of law values, a decline of public confidence in the courts, and the imposition of greater popular and political controls on judicial decision-making. This fate is not inevitable, however; the judiciary?s independence can and should be defended on less antiquated grounds than those embedded in the ermine myth. The solution is to reorient the myth itself to embrace more a contemporary and realistic conception of the judicial role. The judicial role, as reconceptualized, must justify public support for the independence of a judiciary that is subject to legal and extralegal influences. That can be done, the article concludes, if we begin from the premise that judges inevitably exercise discretion that is profitably informed by extralegal influences, and defend the independence of such judges on the grounds that it will promote due process, sound, pragmatic decision-making, and a more flexible conception of the rule of law.

And from the paper:

What happens next? There are at least three possibilities. At one extreme, is nothing: independent judges will continue to be influenced by law and extralegal factors but will say that they are influenced by law alone, and will do so with the public?s continued support?the ermine myth will remain intact and unscathed. At the other extreme, is constitutional crisis: the judicial establishment has already lost the public policy debate, and the public is poised to lose its faith in an independent judiciary that it regards as overtly politicized, indifferent to the rule of law and unaccountable to the public it serves?the ermine myth will die. In the middle (and where I suspect that we are most likely headed), is a gradual erosion of rule of law norms: an increasingly cynical public will become less receptive to claims that judges are influenced by law alone, and more receptive to imposing greater popular and political controls on the judiciary?s independence?the power of the ermine myth will fade.

Highly recommended.  As frequent readers of LTB might guess, I am skeptical about a key (most implicit) premise in Geyh's argument--that the ideological nature of judging is a necessary (as opposed to contingent) feature of judicial practice.  My view is that politicization is contingent on a variety of factors, including intellectual developments (the rise of instrumentalist realism in the legal academy) and political contingencies (the particular historical reasons for politicization of the bench in the post-New Deal era).  But disagreements aside, this is a very fine essay.  I think most readers of LTB will profit from its careful argument, coached in very readable prose.

Full post as published by Legal Theory Blog on May 05, 2010 (boomark / email).