Exploring the Vitality of Stare Decisis in America: Debut Symposium Report for The Matthew Fogg Symposia on the Vitality of Stare Decisis in America (original) (raw)

It's Called Lunch: Judicial Ethics and the Political and Legal Space for the Courts to 'Lobby'

Arizona Law Review, 2014

It has long been known that governments build partnerships with, and lobby, other governments for resources, for public policy changes, and to fight off encroachments on their power. The independence of U.S. courts is related to its perception of impartiality, fairness in decision-making, and isolation from politics. To some, this means that it is important that court officials remain above politics and resist urges to become entangled in political battles. As an independent branch of government, how do courts enter the political process, interact with other branches, and participate equally in the political process, if they must also remain impartial and appear “apolitical”? Past research demonstrates that court officials may indeed behave conservatively in their political work out of fear of political entanglement. However, as with any governmental body, the need of resources, creation of policy beneficial to the branch, and to fight off attacks on independence necessitate active and powerful participation in our pluralist, competitive, federalist system of government. I also argue that what judges and court officials know about law and the justice system is imperative for our elected leaders to hear. The judicial voice is important to the creation of good public policy in so many areas of law like family, torts, criminal justice, and how businesses relate to consumers. When lawmakers pursue legal reforms, judicial officials can shed light on unintended positive and negative consequences. Court personnel are said to face additional constraints on their ability to behave openly and politically in the political process. Some of these constraints are legaland ethical. Some constraints are formal and some are norms of behavior adopted and followed over time as customs. This paper explores past research on how courts lobby the other branches and what we can learn from doing more research on this particular topic. Past research demonstrates that courts lobby other branches informally and formally and that they sometimes do so in a sophisticated manner. Of specific attention here is what state codes of judicial conduct tell us about the ability of judges to engage the other branches and the public on political issues. After assessing state codes, I argue that there is significant political and legal “space” for judges to participate more actively in the political system on topics permitted in the codes like “law” and “judicial administration.” In the end, informal lobbying over “lunch” needs a shift of focus to building lobbying capacity and political institutions inside and outside of courts to do this work.

The Collision of Courts, Politics, and the Media

Federal court confirmations in the United States have become openly political affairs, with partisans lining up to support their preferred candidates. Matters in the states are not much different, with once sleepy judicial elections changing into ever more contentious political slugfests, replete with single-issue interest groups and negative campaign advertising. Once on the bench, judges at every level find themselves dogged by charges of politically motivated decisionmaking. In Bench Press, a first-of-its-kind collection of essays, figures from the academy, the bench, and the press reflect on the state of the American judiciary. Using the results of a specially commissioned public opinion poll as a starting point, the contributors examine the complex mix of legal principle, political maneuvering, and press coverage that swirl around judicial selection and judicial decisionmaking today. Essays examine the rise of explicitly political state judicial elections; the merits of judicial appointments; the rhetoric of federal judicial confirmation hearings; the quality of legal reporting; the portrayal of courts on the Internet; the inevitable tensions between judges and journalists; and the importance of regulating judicial appearances. The Two Faces of Judicial Power is the introduction to Bench Press. It assesses popular conceptions of the courts and provides an overview of essays in the volume.

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

This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010). The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes. Comparing law to the practice of common courtesy, the book explains how our courts not only survive under such suspicions of hypocrisy, but actually depend on them. Law, like courtesy, furnishes a means of getting along: it frames disputes in collectively acceptable ways, and it is a habitual practice, drummed into the minds of citizens by popular culture and formal institutions. The rule of law, understood as the rules of etiquette, is neither particularly fair nor free of paradoxical tensions, but it endures. Although pervasive public skepticism raises fears of judicial crisis and institutional collapse, such skepticism is also an expression of how our legal system ordinarily functions.

The Reluctant Tattle-Tale: Closing the Gap in Federal Judicial Discipline

Tennessee Law Review, 2009

for extremely helpful comments and insight. Special thanks to Barbara Wolvovitz for sharing her story, and also the unnamed attorney witness from the Ninth Circuit's judicial misconduct investigation cited in the text accompanying footnotes 151 to 155, for his story. Thanks also to Jess Dichter and Matthew VanCleve for research assistance, and to Clare Raulerson and Thelma Young for editing.