All Judges Are Political—Except When They Are Not: by Keith Bybee

By Keith Bybee

We are living in an age the place one person's judicial "activist" legislating from the bench is another's neutral arbiter quite studying the legislations. After the ideally suited court docket ended the 2000 Presidential election with its choice in Bush v. Gore, many critics claimed that the justices had easily voted their political personal tastes. yet Justice Clarence Thomas, between many others, disagreed and insisted that the court docket had acted in accordance with felony precept, declaring: "I plead with you, that, no matter what you do, do not try and follow the principles of the political global to this establishment; they don't apply."

The legitimacy of our courts rests on their ability to offer extensively applicable solutions to debatable questions. but american citizens are divided of their ideals approximately no matter if our courts function on impartial felony precept or political curiosity. evaluating legislation to the perform of universal courtesy, Keith Bybee explains how our courts not just live to tell the tale lower than those suspicions of hypocrisy, yet really depend upon them.

Law, like courtesy, furnishes a method of having alongside. It frames disputes in jointly appropriate methods, and it's a routine perform, drummed into the minds of electorate by way of pop culture and formal associations. the rule of thumb of legislations, hence, is neither rather reasonable nor freed from paradoxical tensions, however it endures. even if pervasive public skepticism increases fears of judicial difficulty and institutional cave in, such skepticism is usually an expression of ways our criminal procedure usually capabilities.

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Additional resources for All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law

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Spargo could have run a low-key, nonpartisan campaign and muted his political participation once on the bench. Indeed, he could have argued against the whole idea of judicial elections and insisted that a judge’s loyalty to the law rightly renders him indifferent to popularity. ” He would have had no reason to contest charges leveled by the Commission on Judicial Conduct, since he would have never engaged in any judicially untoward actions in the first place. And yet Spargo did not adopt either of these alternative strategies.

P. cm. Includes bibliographical references and index. 9780804775618 1. Judicial process—United States. 2. Political questions and judicial power—United States. 3. Rule of law—United States. I. Title. 5 Adobe Garamond For Jennifer, Evan, and Ava Table of Contents Title Page Copyright Page Dedication Part I - Legal Realism: Dead and Alive Law and Politics in the State Courts Law and Politics in the Federal Courts Public Views of the Courts in General The Nature of the Problem Conclusion Part II - Elements of Common Courtesy How Can Courtesy Be Compared to Law?

110 If the rule of law is rightly understood, Cass argues, then the judiciary’s pervasive reliance on legal principle becomes clear. Even when considering the most contentious cases on the Supreme Court’s docket—including cases like Bush v. 111 In direct opposition to Cass, Terri Peretti has insisted that a law-centered view of judicial process is flatly wrong. ” 112 Many commentators demonize the Court’s essentially political nature because they fear politics and therefore incorrectly believe that a political judiciary is necessarily out of control.

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