The Supreme Court’s Endorsement of A Politicized Judiciary - A Philosophical Critique -
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Approximately 80% of state judges in the U.S. are elected for office. In aneffort to prevent the politicization of these judicial elections, many Americanstates forbade judicial candidates from announcing their views on disputed legalor political issues during their election campaign. In 2002, the U.S. SupremeCourt declared these regulations an unconstitutional abridgement of the freedom of speech. The Court rejected the claim that the restrictions were important forjudicial impartiality, concluding that although states were free to abandon judicialelections altogether, they had to allow candidates to announce their controversiallegal and political views if they held judicial elections. Politicized judicial electionscampaigns, said the Court, do not constitute a danger to proper judicialdecision-making; in fact, judicial elections were positively aimed at allowing thepublic to choose the political inclinations of judges. These startling conclusionsrelied (impliedly) on a theory of legal interpretation having much to do with earlylegal positivism. Although many contemporary positivists deny that their theoryhas anything to say about legal interpretation, earlier positivists (including themovement''s modern patriarch, H.L.A. Hart) believed that legal interpretation wassimply a matter of following linguistic conventions. Accordingly, legal positivismdistinguished between two modes of judicial decision-making: thenon-discretionary adherence to the literal language of authoritative legal rules,and judicial legislation - law-making by judicial opinion. Judges either followlegal rules or else write them. When examined through these conceptual lenses,politicized judicial elections are not a danger to judicial impartiality. If judicialdecision-making is comprised of the non-discretionary following of the languageof authoritative rules, then a judge''s ideological bias can have no proper impacton the decision; and if judicial decision-making is comprised of judiciallegislation, then politicized decision-making is presumably unavoidable - sinceto legislate is to make political choices. Hence, politicized judicial elections - andindeed politicized judicial decision-making - are presumably both unavoidableand in perfect harmony with the ideal of judicial impartiality. The U.S. SupremeCourt is not alone in endorsing a conception of legal interpretation whichlegitimizes politicized judicial decision-making; but that conception - as manymodern positivists came to concede (albeit at the price of their theory''ssignificance) - is utterly mistaken.
Abstract
Approximately 80% of state judges in the U.S. are elected for office. In aneffort to prevent the politicization of these judicial elections, many Americanstates forbade judicial candidates from announcing their views on disputed legalor political issues during their election campaign. In 2002, the U.S. SupremeCourt declared these regulations an unconstitutional abridgement of the freedom of speech. The Court rejected the claim that the restrictions were important forjudicial impartiality, concluding that although states were free to abandon judicialelections altogether, they had to allow candidates to announce their controversiallegal and political views if they held judicial elections. Politicized judicial electionscampaigns, said the Court, do not constitute a danger to proper judicialdecision-making; in fact, judicial elections were positively aimed at allowing thepublic to choose the political inclinations of judges. These startling conclusionsrelied (impliedly) on a theory of legal interpretation having much to do with earlylegal positivism. Although many contemporary positivists deny that their theoryhas anything to say about legal interpretation, earlier positivists (including themovement''s modern patriarch, H.L.A. Hart) believed that legal interpretation wassimply a matter of following linguistic conventions. Accordingly, legal positivismdistinguished between two modes of judicial decision-making: thenon-discretionary adherence to the literal language of authoritative legal rules,and judicial legislation - law-making by judicial opinion. Judges either followlegal rules or else write them. When examined through these conceptual lenses,politicized judicial elections are not a danger to judicial impartiality. If judicialdecision-making is comprised of the non-discretionary following of the languageof authoritative rules, then a judge''s ideological bias can have no proper impacton the decision; and if judicial decision-making is comprised of judiciallegislation, then politicized decision-making is presumably unavoidable - sinceto legislate is to make political choices. Hence, politicized judicial elections - andindeed politicized judicial decision-making - are presumably both unavoidableand in perfect harmony with the ideal of judicial impartiality. The U.S. SupremeCourt is not alone in endorsing a conception of legal interpretation whichlegitimizes politicized judicial decision-making; but that conception - as manymodern positivists came to concede (albeit at the price of their theory''ssignificance) - is utterly mistaken.
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