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Posted at 1:34 PM ET, 01/ 3/2011

Politics or impartiality in the courtroom?

By Keith J. Bybee
Guest Blogger

About this blog: Many Americans aren’t sure if our courts – most importantly, the Supreme Court – operate on unbiased legal principle or political interest. Keith J. Bybee, a law professor at Syracuse University, ponders the implications of this tension in “All Judges Are Political – Except When They Are Not: Acceptable Hypocrisies and the Rule of Law,” recently released by Stanford University Press. Surprisingly, he finds that courts not only survive under the suspicion of hypocrisy but depend on it. Here, he explains why.


Supreme Court Justice Antonin Scalia recently made news by railing against a “burst of progressivism” that gave voters the right to elect U.S. senators in 1913, thereby diminishing the states by taking Senate elections away from state legislatures.

Given his sensitivity to a century-old slight against state sovereignty, can Scalia really be trusted to rule impartially when a states’ rights case comes before the Court today?

Although Scalia invites such a question by being outspoken, he is hardly the only justice who might be suspected of harboring an agenda. After all, Supreme Court confirmations often look like a search for nominees who will reliably advance the interests of specific political constituencies.

The politicians and pressure groups running the confirmation process do, of course, speak in terms of impartiality and judicial restraint. But behind all the talk of neutrality and modesty, it seems plain that the players in the process are competing to install ideological compatriots on the Court. The nominees themselves also appear in a political light and are frequently suspected of pledging fidelity to law merely as a means of smuggling their own political commitments onto the bench.

The real question, then, is not whether Scalia can be trusted to be a fair arbiter in one area, but why Americans put up with a Supreme Court where any one of the justices at any given time might appear to be using law as a fig leaf to obscure partisan purposes.

Why do we tolerate a system where one person’s impartial judge fairly interpreting the law can easily be seen as another’s judicial activist legislating from the bench?

This contradictory state of affairs persists, I think, because we want contradictory things from our courts.

If we believe that people rely on the judicial process strictly as a source of impartial adjudication, then the perception that any given set of judges may operate on the basis of partisanship can only be corrosive.

Yet if we think that people not only seek principled and impartial judgment from courts, but also may wish merely to drape themselves in law’s mantle of principled impartiality, then we can begin to see how a court shot through with paradoxical tensions may cohere.

We value law because it asks individuals to seek impartial standards of judgment outside their own will. But we also value law because it lends an air of principle and reason to the pursuit of personal interests and political attachments. We want to have a neutral and fair system of dispute resolution and we also want to make sure that our side prevails. Our judicial system indulges both desires at once.

The result can certainly look hypocritical, with participants in the judicial process dutifully reciting the requirements of principle while appearing to exploit every opportunity to mold law to match their own interests. And we may rightly criticize the unfairness of having judges who invoke law yet seem to be deciding a case on the basis of politics.

But we should also realize this arrangement suits the individuals who are governed by it.

By Keith J. Bybee  | January 3, 2011; 1:34 PM ET
Categories:  Guest Blogger  | Tags:  politics and courts; supreme court politics;  
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