Special Issue: The Discourse of Judging: Volume 58

Rights constitute a familiar feature of the liberal discourse of judging. This chapter seeks to recast this discourse away from the language of rights by considering two cases where liberals often invoke it: abortion and same-sex marriage. I argue that the presence of rights in American constitutional discourse exacerbates the counter-majoritarian nature of judicial review. We do better to recast the language of judging from an emphasis on protecting rights to an emphasis on making sure that the demos acts on publicly justifiable reasons. In doing so, I proffer a novel analysis of liberal theory's extant commitment to public reason, one that conceptualizes public reason as representing the scope of state power.

C. Herman Pritchett saw politics in law without losing the sense that law was not simply politics. This synthesis from the 1940s was lost in the last half of the 20th century and it deserves to be brought back. While denial that politics matters is a staple of Supreme Court confirmation hearings, this position is no longer credible. In constitutional law in particular, politics has pushed law aside in the minds of scholars, journalists, and many Americans. This makes it hard to find a place for law in the study of the Supreme Court. This chapter advocates a return to the balance that was in place over 50 years ago when we were first taught that Supreme Court decisions were political.

Undergraduate legal studies classrooms are ideal places in which to engage discourses on judging, and to invite students to analyze and understand contemporary cultural and political representations of the proper roles of judges and judging in democracies. This chapter examines undergraduate understandings of judicial independence and judicial activism, via class discussions surrounding the judicial retention election in Iowa in 2010. The election was occasioned by the groundbreaking state supreme court case Varnum et al. v. Brien (2009), legalizing same-sex marriage in the state. Drawing on participant–observation research as a professor in these courses, and examining student dialogue, class discussion, and web-board postings on the topic, I find that legal studies students are able to articulate a complex range of views regarding the judiciary, judicial activism, and same-sex marriage. Their ability to engage in (mostly) civil discourse on the topic of judging is of particular societal importance, given the limitations of contemporary public discourses about judging. These findings point, as well, to the potential role for engaged academics in expanding and contextualizing public conversations about judicial independence, judicial activism, and rights. The chapter also highlights, however, limits in that educational experience, in particular students' lionization of legal processes, simultaneous to their cynicism about, and lack of engagement in, electoral/political processes. This points to the development of interdisciplinary legal studies curricula as a means toward effective education for democracy.

One of the most dramatic controversies over judicial independence in the United States occurred at the state level, in antebellum Kentucky, when two entirely different state high courts remained in operation, each claiming to be the only legitimate tribunal. This chapter describes Kentucky's two-court crisis, but focuses primarily on the constitutional convention of 1849, which followed it. Through the lens of modern scholarship about judicial independence, the lessons that antebellum Kentuckians drew from their own history seem quite counterintuitive. They did not view their project of judicial design as a matter of balancing judicial independence with accountability, a task that many modern scholars of American politics have posited as the central problem of judicial design. Instead, Kentucky's constitutional convention sought to structure an institution that would allow the state's courts to respond to popular sentiment without compromising their independence. Thus, these debates suggest frameworks for understanding judicial independence that do not pit independence against judicial accountability or popular politics, but attempt to discern which forms of politics threaten the independence of courts, and which forms may not.

This chapter offers a reading of the inclusion of Susan Glaspell's short story, A Jury of Her Peers, in the casebook, Procedure. What does it mean that the editors turn to a secular, literary narrative to ground a consideration of “The Problem of Judgment?” How should we read the irony of the reading instructions they provide, which reproduce the blindness to form – to the significance of “trifles” – that the text describes? How do we read literature in the context of law? More specifically, what does attention to the form of the story yield for an understanding of legal judgment?

This article examines the four primary discourses of judging that dominate discussion of the European Court of Justice (ECJ) and its role in the process of European integration. These discourses present sharply contrasting views of what the Court does and what role it plays in the EU's legal system. The article argues that these conflicting discourses are not merely rival depictions of the ECJ, but that they have also influenced the process of European legal integration – and not always in the ways those voicing them intended.