Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet. Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends long-standing constitutional rights, leaks confidential drafts, and countenances judicial failures to recuse despite questionable impartiality. Assuming all these claims are true, not all of them are inherently bad for democracy and the rule of law. Rather, democracy has seen and survived overruling of precedent, counter-majoritarian rulings, and a pendulum of opinions steeped in politics. It has survived ethical failings. Some of these occurrences are measurably bad for the federal judiciary and society, and they threaten democracy, but ultimately, the rule of law will survive. It must. For its survival, ink must be spilled, reforms must flow, partisan advocates must be careful what they wish for, and judges themselves must do better. The measure of a person is what one does in the face of a crisis. This Article asserts that this crisis is not unprecedented, but it is nonetheless real and serious. Perhaps it is a genuine moment to look to higher powers and within ourselves to “save this honorable Court” and, in turn, save democracy. This Article defines and promotes novel conceptions of judicial fidelity. Judges must answer to a duty beyond pure individualistic or tribal motives. Judicial fidelity requires aiming towards judicial ideals such as judicial humility, a balance of heart and mind, transparent reasoning, respect for coordinate branches, fairness towards litigants, and good-faith decision-making. This work offers positive and negative examples in recent Supreme Court cases from high-visibility constitutional cases to low-visibility remedial and procedural cases. We are past the claim of neutral principles devoid of any normative wants, but judges can transparently show their reasoning, values, and favored interpretive methods. Accountability must increase for thoughtful critics to promote meaningful reform. Ideally, each party’s judicial nominations will be better stewards of this sacred role federal judges play individually and collectively. A well-functioning federal judiciary must perform its essential functions under Article III with healthy separation-of-powers tension with other government branches, basic procedural checks visibly in place and operating, well-reasoned opinions, and the wise exercise of discretion where the case or its remedy dictate a pivot in the law. Otherwise, those tears in the fabric of democracy will continue to fray and the very foundational constitutional rights at stake will lose their force. With a renewed fidelity to judicial ideals by all actors, the federal judiciary can do its part to protect the rule of law and serve democratic values.
Caprice L. Roberts
51 Pepp. L. Rev.
Available at: https://digitalcommons.pepperdine.edu/plr/vol51/iss1/1