We live in an age where one person's judicial "activist" legislating
from the bench is another's impartial arbiter fairly interpreting the
law. After the Supreme Court ended the 2000 Presidential election with
its decision in Bush v. Gore, many critics claimed that the justices
had simply voted their political preferences. But Justice Clarence
Thomas, among many others, disagreed and insisted that the Court had
acted according to legal principle, stating: "I plead with you, that,
whatever you do, don't try to apply the rules of the political world to
this institution; they do not apply."
The legitimacy of our courts rests on their capacity to give broadly
acceptable answers to controversial questions. Yet Americans are divided
in their beliefs about whether our courts operate on unbiased legal
principle or political interest. Comparing law to the practice of common
courtesy, Keith Bybee explains how our courts not only survive under
these suspicions of hypocrisy, but actually depend on them.
Law, like courtesy, furnishes a means of getting along. It frames
disputes in collectively acceptable ways, and it is a habitual practice,
drummed into the minds of citizens by popular culture and formal
institutions. The rule of law, thus, is neither particularly fair nor
free of paradoxical tensions, but it endures. Although pervasive public
skepticism raises fears of judicial crisis and institutional collapse,
such skepticism is also an expression of how our legal system ordinarily
functions.
