Litigation

Judicial Elections, ?Popular Constitutionalism? Explored

By Peter Hardin

Judicial elections are examined through a different lens in a new law review article evaluating them in light of the theory of popular constitutionalism–and also evaluating that theory in light of judicial elections.

David Pozen looks at the topic in “Judicial Elections as Popular Constitutionalism,” in the Columbia Law Review and available through the Social Science Research Network. He is a recent Yale Law School graduate, the author of other works on judicial elections, and a recent Supreme Court clerk.

Pozen first tackles an analysis to build a popular constitutionalism case on behalf of judicial elections, then changes direction to explore how they may be harmful for democracy. Here is an excerpt from his conclusion:

“At the same time that it provides an important new framework and vocabulary with which to defend elective judiciaries, the Article has argued, popular constitutionalism also points the way toward an original critique. For in the service of aligning judges more closely with ‘the people,’ judicial elections do more than threaten collateral damage to values such as legality and equality: They threaten to undermine the democratic aspirations of popular constitutionalism itself.”

Popular constitutionalism is an idea “that the final authority to control the interpretation and implementation of our constitutional law resides at all times in the community in an active sense,” according to a law review article by Larry D. Kramer, dean of the Stanford Law School, excerpted in a New York Times article earlier this year.

Full post as published by The Gavel on November 19, 2010 (boomark / email).