Are American judges impartial arbiters of the law who must be insulated from political control, as the bench and bar have long claimed? Or are they politicians in robes, who will disregard the law and impose their personal preferences unless they are held accountable to the people they serve, as court critics contend? Courting Peril argues that the truth lies between these extremes, and page 99 summarizes the essential features of a new “legal culture paradigm” that describes this middle ground.Learn more about Courting Peril at the Oxford University Press website.
On page 99, I conclude that judges, by virtue of their education and training, are acculturated to take law seriously. But law isn’t mathematics—in close cases, when the facts and law are unclear, judges must choose between comparably compelling alternatives. Deciding which alternative is “right” or “best” requires the exercise of judgment that is inevitably informed by the judge’s education, life experience and world view. Because judges are subject to extralegal influences that can override their commitment to law and justice, they must be held accountable in ways that the legal establishment has historically rejected. But that does not justify treating them like politicians in robes who should be brought to heel for unpopular decisions, because the rule of law, due process, and the administration of justice are better served if judges are afforded a measure of independence from popular control.
Hence, as page 99 explains, “the operative task is to engage in a perpetual balancing act” between judicial independence and accountability “across three dimensions” or perspectives 1) the perspective of parties in litigation who seek a fair hearing; 2) the perspective of the general public, which seeks a judiciary that is politically acceptable; and 3) the perspective of judges themselves, who seek to abide by the ethical responsibilities of their roles. This is more than an arid, academic exercise. As the impending ideological brawl to name Justice Scalia’s successor makes clear, the future of justice in America will turn on how we as a people balance law and politics.