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Unpublished Paper
ExpressO (2007)
  • Gregory C. Pingree

Gregory C. Pingree Article Abstract

Where Lies the Emperor’s Robe?

An Inquiry Into The Problem of Judicial Legitimacy

Today the American judiciary is, by any reasonable assessment, under attack. In politicians’ pious calls for religious retribution in response to controversial judicial decisions (e.g., in the Terri Schiavo case); in recent state ballot initiatives calling for “Jail-4 Judges” who don’t render decisions ideologically satisfactory to some groups; in the embattled and nearly intractable confirmation process for federal judges; and certainly in the wake of Bush v. Gore, which left many Americans convinced that the judiciary is not the impartial branch it once was, or should be – in all of this we see a national judiciary whose fundamental independence, that precious quality that distinguishes the judicial from the executive and legislative branches of government, is at the center of various highly politicized public battles.

Yet examples that demonstrate the embattled cultural status of the judiciary, while plentiful, do little to reveal – and much to obscure – the problem at the root of the situation: that we do not have anything approaching a consensus understanding of what judicial legitimacy means – of what precisely makes courts and judges worth respecting, trusting, and obeying. Moreover, if the embattled status of the judiciary is symptomatic of uncertainty and disagreement about the meaning of judicial legitimacy itself, then that uncertainty also surrounds the principles that constitute judicial legitimacy and thus collectively anchor our judicial system. Among these supporting (and overlapping) principles are legal compliance, impartiality, and –what is largely the product of these first two – avoiding the appearance of impropriety.

In this article, I probe the concept of judicial legitimacy by exploring how and why that concept, for all its importance, tends to remain murky and difficult to apprehend clearly, like a stone embedded in the sediment of a deep, rushing river. As I have suggested, to explore the difficulty of defining judicial legitimacy means to discuss the difficulty of interpreting at least three of its key components: (1) judicial compliance with the law; (2) judicial impartiality; and (3) judicial avoidance of the appearance of impropriety. I will argue that two closely related defects, vagueness and indeterminacy, prevent, like the shifting currents of that rushing river, clear apprehension and thus meaningful discussion of judicial legitimacy and its core components. Those components remain vague because generally they are not presented or considered in factual context; they remain indeterminate because, without the grounding of those factual, specific, community contexts, the public always will have difficulty interpreting the meaning of basic terms of judicial legitimacy, and thus the meaning of judicial legitimacy itself.

I will illustrate the three core components of judicial legitimacy by invoking past and current debates about those components and by scrutinizing several examples of putative judicial misconduct. As we shall see from these conceptual debates and judicial narratives, however difficult it is to interpret these three core components of judicial legitimacy, the degree to which the public perceives that judges honor them largely determines the public’s confidence in the judiciary and thus the character and meaning of judicial legitimacy in our society.

Finally, beyond diagnosing symptoms of the difficulty of defining judicial legitimacy, I will offer a partial antidote: discussion of community values and narratives, undervalued aspects in the calculus of judicial legitimacy. By community values and narratives I mean an emphasis on the specific ways in which different communities, informed by their cultural, religious, economic, racial, ethnic, and other values, function as “the public” in any given judicial controversy and thus significantly affect the shape and quality of judicial legitimacy in that context. Given the increasing diversity of cultural values – and thus of interpretive communities – in American life, it stands to reason that public perception of the judiciary, the most crucial part of the judicial legitimacy equation, actually is the sum of innumerable perceptions, each representing a different way of evaluating judicial conduct.

By discussing the impact of this diversity of community values and meanings we can more accurately and meaningfully address the difficulty of interpreting principles of judicial conduct (compliance, impartiality, and appearance of impropriety) that tend to remain vague and indeterminate. In concluding this article, then, I will argue that focusing on community values and narratives is one concrete way toward developing greater clarity of definition and interpretive traction about the meaning of judicial legitimacy. While focusing on community values and narratives for purposes of interpretation is far from a complete or ideal way to refine public conversation and understanding about judicial legitimacy, it nonetheless provides useful insight into this challenging hermeneutic situation and enables us to avoid the superficiality that characterizes much of the public conversation about the judiciary.

Publication Date
August, 2007
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