Neil Siegel (Duke University - School of Law) has posted The Virtue of Judicial Statesmanship (Texas Law Review, Vol. 86, No. 5, 2008) on SSRN. Here is the abstract:
Some of America's most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if under appreciated, dimension of judicial role.
I argue 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 over the long run and with respect to the nation as a whole 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 derive judicial statesmanship from an understanding of the preconditions of law's public legitimation and from an understanding of the purposes of the institution of law. I demonstrate that statesmanship is a necessary, although not sufficient, component of judicial role.
I argue 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. But I also argue that statesmanship is necessary if law is to fulfill all of its functions and to take account of the conditions of its own legitimation. The rule of law depends for its practical realization on political trust between the government and the governed. In circumstances in which trust is strained, the virtue of statesmanship is especially valuable and produces leadership.
I illustrate the present importance of judicial statesmanship by engaging some instances of its existence or absence during the U.S. Supreme Court's October 2006 Term. I argue that Justice Kennedy's controlling opinion in Parents Involved in Community Schools v. Seattle School District No. 1 seems in important ways to exhibit the practice of judicial statesmanship but that his majority opinion in Gonzales v. Carhart will in most respects likely prove a failure of statesmanship.
And a bit more from the text:
Judicial statesmanship, an unsympathetic reader might suggest, is just a euphemism for political approval of the lawless conduct, however well intended, in which judges sometimes engage. One version of the argument maintains that judges sit on courts of law, and thus they should simply do their jobs of interpreting and applying the law by following the rules laid down in the various conventional sources of law—that is, the text of the Constitution, historical understandings of the text, relevant statutes, past judicial decisions, etc.189
Several responses seem pertinent. First, statesmanship need not serve only as a safety valve deployed to justify avoidance of the “right answer” as a matter of professional reason in particular cases. Statesmanship may also contribute substantially to the design of legal doctrines in the first place, particularly when the expression of evolving social values and the promotion of social solidarity are internal to one’s approach to constitutional interpretation. Moreover, at least some of those doctrines could take a fairly rule-like cast. For example, the rule of Bolling v. Sharpe190 may be most defensible on grounds of statesmanship, and that rule is fairly determinate in application.
Highly recommended.
As frequent readers of legal theory blog know, I'm very interested in aretaic approaches to legal theory in general and virtue jurisprudence in particular. One interesting question raised by this essay concerns that the nature of "virtue" in general and "judicial virtue" in particular. Can we identify judicial virtues on the basis of desirable actions? (With a virtue simply being a regular pattern of behavior that aligns with good action.) Or is an account of judicial character and disposition essential to the identification of traits that can meaningfully be called virtues? Siegel seems to opt for the former, thinner, account of the nature of virtue.
