Supreme Court's Endorsement of a Politicized Judiciary: A Philosophical Critique

Abstract

Approximately 80% of state judges in the U.S. are elected for office. In an effort to prevent the politicization of these judicial elections, many American states forbade judicial candidates from announcing their views on disputed legal or political issues during their election campaign. In 2002, the U.S. Supreme Court declared these regulations an unconstitutional abridgement of the freedom of speech. The Court rejected the claim that the restrictions were important for judicial impartiality, concluding that although states were free to abandon judicial elections altogether, they had to allow candidates to announce their controversial legal and political views if they held judicial elections. Politicized judicial elections campaigns, said the Court, do not constitute a danger to proper judicial decision-making; in fact, judicial elections were positively aimed at allowing the public to choose the political inclinations of judges. These startling conclusions relied (impliedly) on a theory of legal interpretation having much to do with early legal positivism. Although many contemporary positivists deny that their theory has anything to say about legal interpretation, earlier positivists (including the movement''s modern patriarch, H.L.A. Hart) believed that legal interpretation was simply a matter of following linguistic conventions. Accordingly, legal positivism distinguished between two modes of judicial decision-making: the non-discretionary adherence to the literal language of authoritative legal rules, and judicial legislation - law-making by judicial opinion. Judges either follow legal rules or else write them. When examined through these conceptual lenses, politicized judicial elections are not a danger to judicial impartiality. If judicial decision-making is comprised of the non-discretionary following of the language of authoritative rules, then a judge''s ideological bias can have no proper impact on the decision; and if judicial decision-making is comprised of judicial legislation, then politicized decision-making is presumably unavoidable - since to legislate is to make political choices. Hence, politicized judicial elections - and indeed politicized judicial decision-making - are presumably both unavoidable and in perfect harmony with the ideal of judicial impartiality. The U.S. Supreme Court is not alone in endorsing a conception of legal interpretation which legitimizes politicized judicial decision-making; but that conception - as many modern positivists came to concede (albeit at the price of their theory''s significance) - is utterly mistaken.

Keywords: jurisprudence, constitutional law, judicial elections, freedom of speech, first amendment