15 Feb Judicial Legitimacy
I have been thinking and writing about judicial legitimacy for a number of years.
There once was a time when the legitimacy of courts and the rule of law were closely related.
Observance of the rule of law was a necessary and possibly even a sufficient condition for judicial legitimacy; a court was legitimate if it served to uphold the rule of law. Embedded within the general concept of the rule of law was a number of related, or perhaps derivative, ideas—that law was static, that law was discovered, and that judging was simply about applying the law, or finding it and then applying it.
As a result of this paradigm, judicial legitimacy was rooted in proper procedure.
So long as proper procedure was followed, the law would be appropriately discovered (where necessary) and then applied. This idea at least in part explains the importance of the due process clauses in the Fifth and Fourteenth Amendments.
Over the last hundred or so years, however, this formalistic view of law has given way to a realism that recognizes that in many if not all instances, the law itself does little to control legal outcomes. This is particularly true for “important” legal issues due to the open-textured way in which individual rights and their protections are phrased in the Constitution. The effect this shift in thought had on the idea of judicial legitimacy explains much of the rancor and wrangling over judicial appointments and judicial elections. In the past, the rule of law was protected through the proper application of procedure, thus ensuring the proper conditions for judicial legitimacy.
Once people realized that law did little to constrain judicial behavior, there was a paradigm shift in what made judicial decision making legitimate. It became clear that judicial legitimacy was about substantive outcomes, not the ability to process a set of facts through a static set of laws via the proper procedure.
This realization of the paradigm shift from procedural to substantive legitimacy explains the acrimony that often attends contemporary discussions on judicial decision making. Any particular individual will have their own set of desired substantive outcomes, and a particular judge’s legitimacy will be measured by the extent to which his or her decisions achieve or undermine those desired outcomes.
The shift from procedural to substantive legitimacy also highlights the inadequacy of the Constitution’s method for selecting judges.
Federal judges are appointed by the President but must be approved by the Senate. If a judge’s job is mechanical, and the issue is simply whether the nominee has sufficient experience or intelligence to find and apply the law in a straightforward process, the Senate’s duty is a simply one, and most if not all nominees will be qualified. But when judicial legitimacy is about substantive results, the nomination process is much more difficult, particular when, as now, there are such strong divisions about what is ultimately the correct substantive result on any particular issue.