The Rule of Law is Dead! Long Live the Rule of Law!
This paper was prepared for presentation at the “What’s Law Got to Do With It?” Conference, Indiana University School of Law – Bloomington, March 27-28, 2009. Please do not cite or quote without permission. The author thanks Ellen Palminteri and Kyle Somers for their valuable research assistance.
Polls show that a significant proportion of the public considers judges to be political. This result holds whether Americans are asked about Supreme Court justices, federal judges, state judges, or judges in general. At the same time, a large majority of the public also believes that judges are fair and impartial arbiters, and this belief also applies across the board. In this paper, I consider what this half-law-half-politics understanding of the courts means for judicial legitimacy and the public confidence on which that legitimacy rests. Drawing on the Legal Realists, and particularly on the work of Thurman Arnold, I argue against the notion that the contradictory views must be resolved in order for judicial legitimacy to remain intact. A rule of law built on contending legal and political beliefs is not necessarily fair or just. But it can be stable. At least in the context of law and courts, a house divided may stand.
Keith J. Bybee. "The Rule of Law is Dead! Long Live the Rule of Law!" College of Law Faculty Scholarship (2009).
Available at: http://works.bepress.com/keith_bybee/1