Summary
This article conceptualizes the elusive phenomenon of judicial statesmanship, and it defends statesmanship as a core dimension of judicial role. It argues that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself by accomplishing two paradoxically related preconditions and purposes of law: expressing social values as social circumstances change and sustaining social solidarity amidst reasonable, irreconcilable disagreement. The article argues that judicial statesmanship is not sufficient to legitimate the legal system because there are other major purposes of law with which statesmanship can be in tension, especially those advanced by maintaining fidelity to such rule-of-law values as consistency and transparency. The article illustrates the present importance of judicial statesmanship by engaging some instances of its existence or absence during the US Supreme Court's October 2006 Term.
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Extract
The Virtue of Judicial Statesmanship
[B]ut this much I think I do know-that a society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes, no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture ofthat spirit, that spirit in the end will perish. What is the spirit of moderation? It is the temper which does not press a partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens-real and not the factitious product of propaganda-which recognizes their common fate and their common aspirations-in a word, which has faith in the sacredness of the individual.
-Learned Hand1Judge Hand was right about many things. He certainly was correct that no court can save an increasingly polarized political community that refuses to save itself. He was also right that no court need try to save a community in which "the spirit of moderation" abounds. But what about the vast middle between those extremes? What about a culture in which citizens are divided over profound questions of individual and collective identity and the spirit of moderation appears at times to be imperiled, yet it would be unduly pessimistic to conclude that the spirit of moderation is gone? In such circumstances, is it sufficient for a judge to observe that "in a society which evades its responsibility by thrusting upon the courts the nurture ofthat spirit, that spirit in the end will perish"? Or might such a judge be courting an evasion of his or her own responsibility, the responsibility to adopt "the posture of statesmanship"?2Some of America's most important judges have embraced the thing that Brandeis, Frankfurter, and others called judicial statesmanship. It is not easy, however, to specify what they meant by the idea. Justice Frankfurter, for example, was perhaps the foremost advocate of statesmanship on the Supreme Court, yet he tended to champion the practice in relatively vague terms. He did not clearly identify what he conceived statesmanship to entail and how its various, potentially conflicting facets fit together.3 Among other things, he emphasized the open-endedness of constitutional language;4 the enormous difficulty of the problems facing the Court and the limited experience of any individual judge;5 the need for law to keep up with the times;6 the responsibility to imagine the needs of the future;7 the related necessity of possessing a vision of the future and of finding ways to achieve it;8 the perils of insisting upon absolutes;9 the obligation to view society as a whole;10 the importance of judicial deference to legislative judgments;11 and a number of other purportedly statesmanlike qualities that judges ought to possess.12 That descriptive litany is no doubt understandable, as it is difficult to make general statements about the subject of judicial statesmanship. Sometimes one simply seems to know statesmanship when one sees it-or when one does not see it. Yet if that is all that confidently can be said about the matter-if the very notion of judicial statesmanship eludes even rough conceptualization-then it makes scant sense to describe a judicial opinion as statesmanlike or unstatesmanlike.In this Article, I argue that there is more that can be said about the matter. I analyze the notoriously "elusive" phenomenon of judicial statesmanship,13 and I defend the practice of statesmanship as a core, if underappreciated, dimension of judicial role.Judicial statesmanship, I suggest, defines a virtue in the role of a judge. That virtue is best derived from a proper understanding of the preconditions of law's public legitimation and the purposes of the institution of law. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself by accomplishing two paradoxically related preconditions and purposes of law: expressing social values as social circumstances change and sustaining social solidarity amidst reasonable, irreconcilable disagreement. I argue that judicial statesmanship is a necessary, although not sufficient, component of judicial role in the American constitutional order.14 Statesmanship is not sufficient to legitimate the legal system because there are other important purposes of law with which statesmanship can be in tension, particularly those secured by maintaining fidelity to such rule-of-law values as consistency and transparency. But statesmanship is necessary if law is to fulfill all of its functions and to sustain its legitimacy over the long run and with respect to the nation as a whole. I conceive of law as an institution that must accomplish a diversity of purposes and that must account for the conditions of its own legitimation. It follows that the practice of judicial statesmanship is always already inside the rule of law. The judicial statesman understands legality in ways that mediate among the multi...See the full content of this document
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