Special Issue: the Discourse of Judging : The Discourse of Judging 9781780528717, 9781780528700

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SPECIAL ISSUE: THE DISCOURSE OF JUDGING

STUDIES IN LAW, POLITICS, AND SOCIETY Series Editor: Austin Sarat Recent Volumes: Volumes 1–2:

Edited by Rita J. Simon

Volume 3:

Edited by Steven Spitzer

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Edited by Steven Spitzer and Andrew S. Scull

Volumes 10–16:

Edited by Susan S. Sibey and Austin Sarat

Volumes 17–33:

Edited by Austin Sarat and Patricia Ewick

Volumes 34–58:

Edited by Austin Sarat

STUDIES IN LAW, POLITICS, AND SOCIETY VOLUME 58

SPECIAL ISSUE: THE DISCOURSE OF JUDGING EDITED BY

AUSTIN SARAT Department of Law, Jurisprudence & Social Thought and Political Science, Amherst College, USA

United Kingdom – North America – Japan India – Malaysia – China

Emerald Group Publishing Limited Howard House, Wagon Lane, Bingley BD16 1WA, UK First edition 2012 Copyright r 2012 Emerald Group Publishing Limited Reprints and permission service Contact: [email protected] No part of this book may be reproduced, stored in a retrieval system, transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise without either the prior written permission of the publisher or a licence permitting restricted copying issued in the UK by The Copyright Licensing Agency and in the USA by The Copyright Clearance Center. No responsibility is accepted for the accuracy of information contained in the text, illustrations or advertisements. The opinions expressed in these chapters are not necessarily those of the Editor or the publisher. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library ISBN: 978-1-78052-870-0 ISSN: 1059-4337 (Series)

CONTENTS LIST OF CONTRIBUTORS

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EDITORIAL BOARD

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JUDGING WITHOUT RIGHTS: PUBLIC REASON AND THE COUNTER-MAJORITARIAN DIFFICULTY Sonu Bedi

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ON POLITICS AND LAW: RECOVERING THE PRITCHETT SYNTHESIS John Brigham

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‘‘DON’T THEY UNDERSTAND JUDICIAL INDEPENDENCE?’’ DISCOURSES OF JUDGING IN UNDERGRADUATE LEGAL STUDIES CLASSROOMS: JUDICIAL RETENTION AND SAME-SEX MARRIAGE RULINGS Renee Ann Cramer

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KENTUCKY’S CONSTITUTIONAL CRISIS AND THE MANY MEANINGS OF JUDICIAL INDEPENDENCE Emily Zackin

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NOMOS AND FORM: READING A JURY OF HER PEERS AND ‘‘THE PROBLEM OF JUDGMENT’’ IN PROCEDURE Matthew Anderson

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TALKING ABOUT THE EUROPEAN COURT: DISCOURSES OF JUDGING IN THE EUROPEAN UNION R. Daniel Kelemen

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LIST OF CONTRIBUTORS Matthew Anderson

Department of English, University of New England, Biddeford, ME, USA

Sonu Bedi

Department of Government, Dartmouth College, Hanover, NH, USA

John Brigham

Department of Political Science, University of Massachusetts, Amherst, MA, USA

Renee Ann Cramer

Program in Law, Politics, and Society, Drake University, Des Moines, IA, USA

R. Daniel Kelemen

Department of Political Science, Rutgers University, New Brunswick, NJ, USA

Emily Zackin

Department of Political Science, Hunter College of the City University of New York, New York, NY, USA

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EDITORIAL BOARD Gad Barzilai Political Science, University of Washington, USA and Tel Aviv University, Israel

David Garland Law, New York University, USA Jonathan Goldberg-Hiller Political Science, University of Hawaii, USA

Paul Berman Law, George Washington University, USA

Laura Gomez Law, University of New Mexico, USA

Roger Cotterrell Legal Theory, Queen Mary College, University of London, UK

Piyel Haldar Law, Birkbeck College, University of London, UK

Jennifer Culbert Political Science, Johns Hopkins University, USA

Thomas Hilbink Open Society Institute, USA

Eve Darian-Smith Global Studies, University of California, Santa Barbara, USA

Desmond Manderson Law, College of Law and College of Arts & Social Sciences, Australian National University, Australia

David Delaney Law, Jurisprudence, and Social Thought, Amherst College, USA Florence Dore English, University of North Carolina, USA

Jennifer Mnookin Law, U.C.L.A., USA Laura Beth Nielsen Research Fellow, American Bar Foundation, USA

David Engel Law, State University of New York at Buffalo, USA

Paul Passavant Political Science, Hobart and William Smith College, USA

Anthony Farley Law, Albany Law School, USA ix

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Susan Schmeiser Law, University of Connecticut, USA Jonathan Simon Jurisprudence and Social Policy, University of California, Berkeley, USA

EDITORIAL BOARD

Marianna Valverde Criminology, University of Toronto, Canada Alison Young Criminology, University of Melbourne, Australia

JUDGING WITHOUT RIGHTS: PUBLIC REASON AND THE COUNTER-MAJORITARIAN DIFFICULTY Sonu Bedi ABSTRACT 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.

The conventional role of a constitutional court in a liberal democracy is to protect rights. Rights constitute a familiar feature of the liberal discourse of judging. Consider that liberals invoke the language of rights to strike down

Special Issue: The Discourse of Judging Studies in Law, Politics, and Society, Volume 58, 1–27 Copyright r 2012 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000058004

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laws against abortion and same-sex marriage. And it is precisely in these cases that the charge of ‘‘judicial activism’’ is often made. From a scholarly perspective, when a court does strike down these illiberal laws, it invites the counter-majoritarian (CM) difficulty, a difficulty made famous by Alexander Bickel (1962). Bickel defines it as one where a court ‘‘thwarts the will of representatives of the actual people of the here and now’’ by exercising ‘‘control, not in behalf of the prevailing majority but against it’’ (1962, p. 17). This tension is at the center of judicial review in a constitutional liberal democracy: on one hand is our commitment to democratic rule and on the other hand is our commitment to ensuring liberty and equality. When a court strikes down laws in the name of liberty or equality, it acts in a counter-majoritarian fashion. The sting of ‘‘judicial activism,’’ then, informs the counter-majoritarian nature of judicial review. It suggests that the court has problematically acted against the democratic majority. Most scholarly work focuses on solving this puzzle or extinguishing the sting of counter-majoritarianism. Scholars aim to provide an answer to the question of why judicial review is important even necessary to liberal democracy. My focus, however, is not on why a court ought to have the ability to strike down laws and policies. I examine how a court does so. I suggest that the langue the Court deploys in striking down legislation is of critical normative importance. In short, this chapter hopes to mitigate but not extinguish the sting of counter-majoritarianism by recasting the language of judging from an emphasis on protecting rights to an emphasis on making sure that the demos acts on publicly justifiable reasons. Doing so, as I argue, makes for a more democratic discourse in striking down legislation on liberal grounds. This chapter is not about a particular theory of constitutional interpretation: originalism, non-originalism, interpretivism, pragmatism, textualism, etc. Mine is a conceptually prior question about the language a court ought to deploy in a constitutional liberal democracy. While my examples draw from American constitutional law and the United States Supreme Court, this chapter is not primarily an analysis or critique of current constitutional doctrine. Mine is a normative inquiry that seeks to recast the discourse of judging away from the language of rights by considering two cases where liberals often invoke it: abortion and same-sex marriage. By ‘‘rights’’ I mean those constitutional interests, areas, or classifications off limits to state regulation. Rights attach to individuals or groups of individuals (cf. Shapiro, 1986, p. 14). We say that A has a right to x. Or that a group of Bs has a right to y. This is the conventional way liberal constitutional theory limits democratic government. For example, laws restricting

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abortion are unconstitutional, because they violate a right to privacy or bodily integrity. Similarly, a prohibition on same-sex marriage is unconstitutional, because it violates the rights of gays or lesbians. There are at least two other kinds of constitutional rights: affirmative rights (e.g., rights to welfare, education, or accommodation/exemption) and political rights (e.g., right to vote, right to run for office, right to free speech). Affirmative rights represent positive obligations that the democratic state ought to undertake such as providing its members with housing or welfare. These rights may also include ethno-cultural group rights, rights that are at the center of much multicultural theory (see, e.g., Kymlicka, 1995; Parekh, 2000; Shachar, 2001; Young, 1990). Political rights ensure that state is and remains democratic. My argument does not concern these rights. In this chapter, by ‘‘rights’’ I only mean the language or discourse a constitutional court usually deploys to strike down legislation. My chapter is in two parts. The first part, which is primarily critical, argues that the presence of rights in the constitutional debates over abortion and same-sex marriage exacerbates the counter-majoritarian nature of judicial review. This happens in two distinct ways. By deploying the language of rights in the case of abortion, a court forecloses democratic compromise. It definitely decides that the state may not prohibit abortion given that it would violate a right. This, in turn, makes constructive debate nearly impossible. Simultaneously, a court’s use of identity rights to invalidate prohibitions on same-sex marriage turns out to be antidemocratic. The discourse of identity rights separates citizens in a polity rather than draws them together. This in turn often invites the species retort of ‘‘special rights.’’ The second part, which is constructive, argues we must rethink the language of judging. Again, my concern is not with a court’s ability to strike down democratically enacted laws or polices – this is the conventional question scholarly work seeks to answer. This chapter focuses on the language a court deploys in doing so. Reframing this discourse away from rights and toward justification channels debate rather than squelches it and draws citizens together rather than separates them. This framework provides a more democratic objection to laws against abortion and same-sex marriage. 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. The distinction between rights and powers stands at the center of my positive argument. I make two important caveats. First, my argument is self-consciously a liberal one. I seek to proffer an alternative conception of liberal constitutional discourse. As one political philosopher puts it in his analysis of John

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Rawls: you ‘‘do not argue in political philosophy over the benefits of constitutional liberal democracy; what you try to do is see what that concept leads to, what it entails, what it demands’’ (Dreben, 2003, p. 323). My analysis thereby automatically excludes perfectionist or antiliberal accounts of constitutionalism. Second, while this argument may be applicable to other cases, this chapter focuses just on abortion and same-sex marriage. If the distinction between the discourse of rights and powers is instructive in these two cases, it may prove beneficial in others where liberals seek to invalidate laws and policies.

EXACERBATING THE COUNTER-MAJORITARIAN DIFFICULTY Most scholarly work on the CM difficulty seeks to extinguish this difficulty. Scholars challenge both assumptions of the difficulty. On one hand, they argue that when a court invalidates laws and policies, it reflects rather than contravenes majoritarian preferences (see, e.g., Ackerman, 1993; Dahl, 1957; Graber, 2002; Powe, 2000). On the other hand, they argue that legislative decisions often do not reflect majority preferences (see, e.g., Lemieux & Watkins, 2009, pp. 36–37; Shapiro, 1966). My chapter does not seek to extinguish this difficulty by challenging its premises. I assume that there is a presumptive democratic problem when a court strikes down a law against abortion or same-sex marriage that the relevant democratic body has passed. My chapter focuses on the language a court deploys to do so, something that has been under-theorized in this literature. I argue that the discourse of rights exacerbates the sting of the CM difficulty in these two cases by ruling out a democratic option and by separating citizens in a polity on the basis of identity.

Rules Out Democratic Options When a court declares that a law violates a particular right, this often forecloses the possibility of democratic compromise. It is not merely that invoking rights ‘‘trumps’’ a relevant democratic decision (Dworkin, 1984). This trumping occurs in a particular way. By declaring that a law violates a right, a court rules out a certain option the polity may take. In Roe v. Wade (1973) the court held that as a general matter laws prohibiting

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abortion violate a right to privacy. The discourse of rights stands at the center of the Court’s reasoning. Those who challenged the abortion law in Roe argued that it ‘‘improperly invade[d] a right, said to be possessed by the pregnant woman, to choose to terminate her pregnancy’’ (Roe, p. 129). The Court agreed holding that ‘‘the right of personal privacy includes the abortion decision’’ (Roe, p. 154). By deploying the discourse of rights to strike down such a law, the Court has ruled out the possibility of prohibiting the vast majority of abortions. Simply put, that option is now no longer available to the majority. This has been the current state of constitutional law since 1973. Planned Parenthood v. Casey (1992) (invalidating a spousal notification requirement before procuring an abortion) has reframed the nature of this right by holding that a law is unconstitutional if it unduly burdens a woman’s right to privacy. But this question – whether a law unduly burdens the right – does not change the winner take all feature of the discourse of rights. For once a court holds that the law is unduly burdensome of the right, that is the end of the debate. Those who favor abortion laws are definitive losers. By declaring such laws unconstitutional on the basis of a right to privacy, a court has categorically ruled out the option of prohibiting abortion. This makes compromise among the pro-life and pro-choice adherents moot. In fact, armed with the trimester framework, the Court in Roe left the losers outside the conversation by making this compromise on its own. The Court held that up to the first trimester, the state could not regulate abortion. Subsequent to this and up to viability, the state may regulate it as long as such regulations are reasonably related to maternal health. After viability, the state could go so far as prohibiting abortion altogether except where necessary for the ‘‘preservation of life or health of the mother’’ (Roe, pp. 164–165). The Roe Court effectively fashioned a statute in laying out the trimester framework for the regulation of abortion. Justice Antonin Scalia has criticized the Court’s abortion cases for preempting ‘‘all participants, even the losers, the satisfaction of a fair hearing and an honest fight’’ (Casey, p. 1002, dissenting). Even Justice Ruth Bader Ginsburg remarks that Roe ‘‘invited no dialogue with legislators. Instead it seemed entirely to remove the ball from the legislators’ court’’ (Ginsburg, 1992, p. 1205; see also Burt, 1992, pp. 358–359). While she does not connect her argument to the CM difficulty, Mary Ann Glendon (1993) recognizes that framing ‘‘nearly every social controversy in terms of a clash of rights y impedes compromise, mutual understanding, and the discovery of common ground’’ (Glendon, 1993, p. xi; see also MacIntyre, 1984, p. 7). I suggest that this failure to find common ground

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arises precisely because the discourse of rights rules out options. It is not merely that the pro-life democratic majority is the loser – pointing to the familiar counter-majoritarian nature of judicial review. Rather, by deploying the language of rights to strike abortion laws or policies, a court goes farther by ruling out a popularly endorsed option altogether. This exacerbates the force of the CM difficulty, because it makes any deliberation about compromise impossible. Those who favor severe restrictions on abortion even desiring to prohibit them altogether are effectively silenced with a court’s discourse of rights. This makes compromise moot, because a court has taken the option – namely prohibiting abortion – ‘‘off the table.’’ There is nothing left to deliberate about. As long as a court invalidates laws and policies by invoking rights, this is unavoidable. In just this way, the discourse of rights may intensify or even inform the charge of ‘‘judicial activism.’’ While judicial activism has been associated with liberal judges since Earl Warren’s tenure as Chief Justice of the Court, during which the Court struck down legislation to expand the scope of individual rights in such areas as privacy and criminal procedure, conservative justices also invalidate democratically enacted laws and polices. In fact, according to Thomas Keck, the Court under Chief Justice William Rehnquist was the ‘‘most activist in American history’’ (Keck, 2004, p. 203). Nevertheless, the point is that the charge of ‘‘judicial activism’’ is often made against liberal decisions: Roe being a paradigmatic example. If judicial activism connotes a kind of ‘‘over reaching,’’ the language of rights allows a court to do just that. Armed with the liberal discourse of rights, a court can foreclose a particular option. If a democratic polity may no longer prohibit abortion, those who are pro-life may view Roe as a hated decision, one where the Court has dealt a definitive blow in the abortion debate. If liberal constitutional discourse insists on deploying the language of rights to strike down laws against abortion, it exacerbates the charge of ‘‘judicial activism.’’ Unsurprisingly, those who have been on the losing side of the abortion issue seek to overturn cases like Roe and Casey, by replacing liberal justices with conservatives ones or even amend the Constitution to prohibit abortion. For some, Roe has left them with no other option but to intimate, harass, or even kill abortion doctors or the pregnant women who seek an abortion. Consider that Congress passed the Freedom of Access to Clinic Entrances Act in 1994 specifically to curtail these more extreme antiabortion responses.1 The Court’s decision in Roe, then, has not set the terms of the democratic debate in a constructive way. The constitutional focus is simply on the

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abortion – the act of destroying the fetus. Is this act murder? Or is it part of a right to bodily control or privacy? Once a court answers affirmatively saying that the act of procuring an abortion is indeed an exercise of a right, there is nothing left to discuss or debate. Rather than channeling democratic deliberation in a more fruitful direction, a court stymies it by relying on the language of rights. Since the discourse of rights rules out the option of prohibiting abortion, it leaves no space for compromise among those who are pro-life and pro-choice.

Separates Citizens in a Polity The liberal discourse of rights also exacerbates the sting of the CM difficulty by often making the constitutional objection about a particular group or class. This occurs in those instances where a court invokes identity rights to invalidate laws or policies. While a court may speak in the language of identity, scholars and advocates often speak in terms of rights. Liberal constitutional jurisprudence frames a prohibition on same-sex marriage as an issue of sexual orientation discrimination. Empirical work in political science codes it as one about ‘‘gay rights’’ (see, e.g., Lax & Phillips, 2009; Pinello, 2003). Whether the claim is that such a prohibition violates the rights of gays and lesbians or discriminates on the basis of sexual orientation, the logic is the same: these arguments invalidate limitations on samesex marriage on behalf of a particular identity group – here gays and lesbians. They structure the constitutional objection in terms of identity. This is the conventional discourse courts deploy to strike down this kind of legislation (see generally Lister, 2005). This conventional discourse frames the same-sex marriage debate in a way that separates citizens in a polity rather than draws them together. It divides the demos into those that are members of the identity group or class (gays and lesbians) and those who are not. To deem a law invalid on the basis of identity rights, then, turns out to be in particular opposition to the majority. This kind of constitutional objection flows from groups not the polity itself. John Ely’s (1980) classic defense of judicial review argues that a court ought to strike down laws and policies that discriminate against subordinated minorities. Ely’s representation reinforcement theory of judicial review suggests that a court remedy democratic defects in legislation. For Ely, these defects arise when the relevant majority singles out for adverse treatment a vulnerable class like gays and lesbians (1980, p. 163).

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But making the constitutional discourse about identity has the potential to frustrate deliberative democracy (see, e.g., Elshtain, 1993; Quong, 2002; Schlesinger, 1992; Simon, 1999; Waldron, 2000). Much of this scholarly work primarily takes aim at ethno-cultural rights encompassing rights to self-government and accommodation (see Barry, 2001; Kukathas, 2003; Quong, 2002; Waldron, 2000), rights that this chapter is not concerned with. Now this is not to imply that groups makes no contribution to democracy. Amy Gutmann suggests ‘‘mutual identification makes political organization easier,’’ aiding in aggregating and mobilizing individuals (2004, p. 194). My focus is on the democratic deficiency of constitutional objections to discriminatory laws and policies grounded in the language of identity, a criticism that is often under-theorized in scholarly work. The core problem is that identity claims are not made on behalf of all citizens. Jean Bethke Elshtain (1993) puts it (provocatively to say the least) in the following way: ‘‘To the extent that citizens begin to retribalize into ethnic or other ‘fixed-identity groups,’ democracy falters. Any possibility for human dialogue, for democratic communication and commonality, vanishes as so much froth on the polluted sea of phony equality’’ (Elshtain, 1993, p. 75). To contend that a prohibition on same-sex marriage is invalid because it harms gays and lesbians makes the discourse about a particular group. According to the standard view of deliberative democracy, an objection ought to ‘‘be recognizably moral in form and mutually acceptable in content’’ (Gutmann & Thompson, 1996, p. 57). Said differently, deliberative democracy requires that we advance arguments that all can reasonably accept, an argument that runs through the literature on public reason (see, e.g., Ackerman, 1980; Forst, 2002; Habermas, 1990, 2001; Larmore, 1987; Rawls, 1996 [1993]; see also Scanlon, 1998, p. 202). It rules out arguments that are sectarian or based on self-interest. A focus on gays and lesbians, however, seems to undermine this deliberative requirement. When the California Supreme Court struck down that state’s prohibition on same-sex marriage, it based its argument on identity: ‘‘Because a person’s sexual orientation is so integral an aspect of one’s identity, it is not appropriate to require a person to repudiate or change his or her sexual orientation in order to avoid discriminatory treatment’’ (In re Marriage (Ca. 2008, p. 98)). It is simply unfair for the state to ask gays and lesbians to change whom they are attracted to. Similarly, the Iowa Supreme Court contends that with a prohibition on same-sex marriage, ‘‘gay and lesbian individuals cannot simultaneously fulfill their deeply felt need for a committed personal relationship, as influenced by their sexual orientation’’ (Varnum v. Brien (Iowa, 2009, p. 30)). The Iowa Court goes on to say that

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being gay is ‘‘so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change [it]’’ (Varnum v. Brien (Iowa, 2009, p. 30)). The constitutional discourse of rights contends that this kind of prohibition is invalid, because it harms a particular identity group. The logic of this discourse separates members in a polity. It makes the constitutional objection about the interests of a particular group not the interests of all (see Mason, 2010). If a ban on same-sex marriage is illegitimate, because it discriminates against a certain group, that group seems to benefit (see Gerstmann, 1999, pp. 38–39). This, in turn, invites detractors to say if we are singling out gays and lesbians for recognition, why not other groups? This triggers the ‘‘us’’ versus ‘‘them’’ pathology of the ‘‘special rights’’ retort, a retort that is often made by those who defend prohibitions on same-sex marriage (see generally Cahill, 2004, pp. 70–72; Goldberg, 1995). By emphasizing the interests of a minority, the conventional logic highlights the countermajoritarian difficulty. It suggests that a court is not taking into account the interests of all, only those of the relevant group in striking down a prohibition on same-sex marriage. The ‘‘special rights’’ retort threatens to make constructive debate difficult if not impossible (Bybee & Ghosh, 2009, pp. 144–145). This retort is seemingly powerful, because it turns the minority into the oppressors and the majority – who passed the discriminatory legislation – into their victims (see generally Dudas, 2005, 2008; Goldberg-Hiller, 1998; Goldberg-Hiller & Milner, 2003; Schacter, 1994). In his criticism of conventional equal protection theory, Christopher Kutz puts this point in the following way ‘‘[the language of group identity] threatens to (and does) invite a politics of zero sum, interest group competition, rather than a politics of common aspiration and collective achievement’’ (2003, p. 9). When the Hawaii Supreme Court (Baehr v. Lewin (Hawaii), 1993) became the first court explicitly to question the constitutionality of a prohibition on same-sex marriage in 1993 under a state constitution, it triggered a severe democratic backlash. Many states amended their constitutions or passed statutes declaring marriage between same-sex couples void or invalid. The federal government passed the Defense of Marriage Act, the federal law that does not recognize valid same-sex marriages under state law. When the California State Supreme Court invalidated that state’s prohibition on same-sex marriage on grounds of sexual orientation discrimination, it invited Proposition 8, a state amendment overturning the decision. By making the constitutional objection about identity, courts may invite democratic backlash.

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Gerald Rosenberg criticizes the language of rights courts deploy to overturn prohibitions on same-sex marriage: Same sex marriage proponents had not built a successful movement that could persuade their fellow citizens to support their cause and pressure political leaders to change the law. Without such a movement behind them, winning these court cases sparked an enormous backlash. They confused a judicial pronouncement of rights with the attainment of those rights. (2006, p. 813; see also Klarman, 2005)2

While Rosenberg does not connect this backlash to the retort of ‘‘special rights,’’ his logic informs my analysis here. If a prohibition on same-sex marriage is problematic because it discriminates against gays and lesbians, this makes the argument about that particular identity group. It permits detractors to view (perversely to be sure) gays as the oppressors, imposing their preferences on the straight majority. From a democratic perspective, this will invariably make it more difficult to persuade fellow citizens about the unconstitutionality of such a prohibition. The conventional logic pits them – gays and lesbians – against ‘‘us’’ (everyone else). While I find the ‘‘special rights’’ retort to be illegitimate, the language of identity does not capture this illegitimacy. It will not suffice to contend that these are not special rights but rather equal rights. After all, the question is equal rights for whom? Under the conventional logic, the problem with homophobic laws is not that they violate everyone’s rights but that they fail to ensure equal rights for gays and lesbians. Evan Wolfson, a legal activist, describes the beginning of the same-sex marriage movement in the courts as championing ‘‘equal marriage rights for lesbians and gay men’’ (1994). As long as courts speak in the language of rights, there is no way to avoid making the constitutional argument about a particular identity group. This is why James Nickel characterizes these identity claims as ‘‘universal rights applied to minorities’’ (URAM) (2007, p. 154). If the infirmity with a prohibition on same-sex marriage is that it does not apply a certain kind of universal right to a particular minority, here gays and lesbians, this again makes the protest about identity. Importantly, the straight majority could not make a URAM claim on behalf of itself in challenging homophobic legislation. As applied to heterosexuals, there is no infraction of any alleged universal right. This is why those who deploy the ‘‘special rights’’ retort make the minority out to be the oppressors. The ‘‘pronouncement’’ by courts that the rights of an identity group have been violated does not frame the issue in a way that draws citizens together thereby intensifying the force of the CM difficulty.

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RETHINKING JUDGING: PUBLIC REASON AS THE SCOPE OF STATE POWER By deploying the discourse of rights to strike laws against abortion and same-sex marriage, a court jeopardizes democratic compromise while needlessly separating citizens in a polity. We must rethink the discourse of judging. The final part of this chapter suggests that a court ought to deploy the language of public reason or justification rather than rights to invalidate laws against abortion and same-sex marriage. This principle of public reason is a familiar one in contemporary political theory (see, e.g., Ackerman, 1980; Forst, 2002; Habermas, 1990, 2001; Larmore, 1987; Rawls, 1996 [1993]). John Rawls famously suggests that ‘‘the limits imposed by public reason’’ apply to ‘‘‘constitutional essentials’ and questions of basic justice’’ (Rawls, 1996 [1993], p. 214). The Court, according to Rawls, is an ‘‘exemplar’’ of public reason (1996 [1993], p. 216). Recent scholarship seeks to apply the philosophical principle of public reason to extant constitutional jurisprudence (see Bedi, 2009; Brettschneider, 2007; Den Otter, 2009). Yet, these analyses do not go far enough in explaining how to operationalize the requirement of public reason as a constitutional constraint. Some of this work needlessly invokes the language of rights in doing so (see generally Bedi, 2009, pp. 41–55). In rethinking the discourse of judging, this chapter provides a novel answer to this question of operation. I propose a normative framework that treats the requirement of public reason as an issue of constitutional powers. That is, in a liberal constitutional democracy, public reason represents the scope of state power. Important to my analysis is the distinction between the discourse of rights and the discourse of powers. Consider as a paradigmatic example the second issue the Court faced in McCulloch v. Maryland (1819). McCulloch involved a challenge to a tax imposed by the State of Maryland on the United States bank. The Court held a national bank was within the power of the federal government to establish. Relevant here is the question of ‘‘whether [the] power [to tax the bank] can be exercised by the respective States’’ (McCulloch, pp. 430–431). The Court held that it could not, reasoning that the ‘‘power to tax involves the power to destroy’’ (McCulloch, p. 431). This represents the scope of state power with regards to taxing federal instrumentalities. Similarly, consider that the interstate commerce clause says that Congress has the power to regulate commerce ‘‘among the several States.’’3 That represents the scope of Congressional power with regards to commerce. So if Congress passed a law that regulates activity not in

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interstate commerce (assuming no other grants of powers permit the law), the Court would strike it down reasoning that Congress had exceeded its powers. In both cases, the Court invalidates a law by invoking the discourse of powers. Powers attach to the relevant democratic body: a state or the federal government. Contrastingly, rights apply to individuals or groups. After all, the language of rights deems certain interests, areas, or identity categories off limits to state regulation. Alexander Hamilton famously argued against a Bill of Rights. In Federalist #84, he said (and this illuminates the turn away from a discourse of rights): ‘‘For why declare that things shall not be done which there is no power to do?’’ (Cooke, 1961, p. 579). Instead of saying that a particular law violates a right, a court ought to say that it exceeds the power of the state to enact it. I suggest that public justifiability represents the content of the scope of state or government power.4 There are various ways to cash out the meaning of publicly justifiable, to draw the line between public and nonpublic reasons. Again, as my analysis concerns the role of a court in a liberal constitutional democracy, I assume rather than defend the correctness of a neutral, non-perfectionist version of public reason. This means that I adopt an ‘‘exclusionary’’ version of public reason, one that excludes certain reasons or rationales (Solum, 1993). I operationalize this principle of public reason as representing the scope of state power. The distinction between public and nonpublic reasons carves out the nature of state power just as commerce among the states carves out the nature of Congressional power. There are two important components to this constraint, to the scope of this power. First, a liberal version of public reason rules out laws and policies that are just based on a particular moral or religious conception of the good (see, e.g., Ackerman, 1980; Den Otter, 2009; Larmore, 1987; Rawls, 1996 [1993]; Raz, 1986, pp. 110–157; Solum, 1993). John Rawls defines a conception of the good as what ‘‘we regard as a worthwhile human life’’ (1999 [1971], p. 302). This is a belief about what counts as a good, appropriate, or worthwhile life. Often, religious doctrines proffer such conceptions of the good, contending that individuals ought to live according to certain moral doctrines. Public reason contends that these conceptions are illegitimate grounds for state legislation. This does not mean that the state should be ‘‘neutral regarding its effect on various conceptions of the good’’ (Quong, 2004, p. 233). Rather public reason is about justificatory neutrality. As Jonathan Quong puts it: So long as the reasons underlying the central principles of the state are acceptable to all reasonable citizens, then the liberal principle of legitimacy is realized. Again, because

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reasonable people disagree about the good life, the state will have to eschew any appeals to conceptions of the good in justifying its core principles. Put another way, only public reasons – reasons that are acceptable to all reasonable citizens – can legitimate the coercive use of state power over its citizens. (2004, p. 233)

Under this account of public reason, a court’s role is to ensure that the state’s coercive power is indeed based on reasons that are public. Ronald C. Den Otter (2009) provides the most robust constitutional defense of this principle of justificatory neutrality, arguing that it ought to guide the Court’s jurisprudence. In fact, the First Amendment’s establishment clause (‘‘no law respecting an establishment of religion’’5) is nothing other than an explicit constraint of liberal public reason. It provides a constitutional hook for liberal neutrality, ruling out laws that are based on perfectionist or religious justifications (see generally Foley, 1992). So the scope of state power is about the kinds of reasons the demos may appeal to. If a reason is nonpublic, the state does not have the power to act upon it. Second, public reason rules out those reasons proffered in bad faith. Though this constitutes an important even obvious part of the requirement of publicly justifiable, it is often missing in the literature on public reason. If a reason is on its face proper but put forth disingenuously this cannot accord with public reason. Deploying such reasons willy-nilly would undo the justificatory constraint. While this constraint of good faith may seem abstract, courts are in a position to enforce it. Consider Justice Ginsburg’s dissent in Gonzales v. Carhart (2007) (upholding the partial birth abortion ban). Here the Court upheld a federal ban on a particular abortion procedure performed during the second trimester of pregnancy. In pointing out that Congress’ alleged justification was put forth in bad faith, Ginsburg dissents, arguing that: Today’s ruling, the Court declares, advances y the Government’s ‘legitimate and substantial interest in preserving and promoting fetal life.’ y But the Act scarcely furthers that interest: The law saves not a single fetus from destruction, for it targets only a method of performing abortion. (Gonzales, p. 181)

While preserving life may be a legitimate and hence public rationale, Congress did not proffer it in good faith. That means something else besides preserving life is afoot. (I revisit the relationship between this requirement of good faith and the abortion debate below.) Invoking the requirement of public reason, Ginsburg goes on to suggest that: Ultimately, the Court admits that ‘‘moral concerns’’ are at work, concerns that could yield prohibitions on any abortion y Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life y . ‘‘Our

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While Ginsburg does not deploy the language of powers, she articulates the vision of public reason I consider here, one that rules out reasons that are based on a particular moral conception of the good. By acting on reasons that are nonpublic, Congress exceeds its powers by enacting the partial birth abortion ban. If the task of judging is to fetter out laws and policies that are not publicly justifiable – that therefore go beyond the power of the state, we mitigate the counter-majoritarian nature of judicial review. Making the discourse of judging about public justification and powers rather than rights turns out to be more democratic. By ‘‘more democratic,’’ I do not mean that a discourse of powers will lessen the frequency with which the Court strikes down legislation. Mine is a qualitative not quantitative argument. My purpose is to provide a framework of public justification, grounded in the language of constitutional powers, which fosters compromise and draws citizens together. Ceteris paribus, we ought to prefer such a language of judging in striking down laws against abortion and same-sex marriage. Ruling Out Reasons Rather than Options: The Possibility of Compromise Turning to a discourse of public justification rather than rights may invite the possibility of compromise in the abortion debate. Rather than ruling out options with the language of rights, a court rules out reasons with the language of justification. Without any kind of law regulating abortion, a woman would freely be able to procure one. If a state desires to pass a law prohibiting abortion, it must justify the law in the face of a constitutional challenge. If the reasons are not publicly justifiable, a court ought to strike down such legislation. In doing so, a court does not necessarily rule out the option of prohibiting abortion. It has only ruled out an improper justification. Thus, a court does not deal a definitive blow to the losers under a justificatory framework. Crucial to this reframing is smoking out the actual justification for laws and policies. Suppose the demos decides that failing to carry the fetus to term – deciding to terminate the pregnancy by removing the fetus – ought to be a crime. No matter how the woman got pregnant (be it by rape, incest, or consensual sex), the innocent life in her must be saved. As a result, the majority passes a law outlawing abortion. Even though the pregnant woman has no desire to carry the fetus to term (presume she can do so without

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herself dying), the polity has decided that she must do so. The presumptive justification is to preserve fetal life, to prevent harm to the fetus. For many pro-life advocates, the fetus is a person. While saving the life of the fetus does not seem to invoke a particular comprehensive or moral conception of the good life (the first requirement of public reason), this justification must be proffered in good faith (the second requirement of public reason). In this case, it is relatively easy to realize that something other than preserving life is afoot, even if one concedes that the fetus is a life that ought not to be destroyed. First, if the polity has decided to compel the mother to carry the fetus to term based on the justification of preserving life, it ought to compel others in similar situations to help as well. Forcing the pregnant woman to carry a child to term exposes her to great physical burdens, burdens that the law is very reluctant to impose on others (see Regan, 1979, pp. 1579–1591). A woman must, for example, eat properly avoiding many kinds of activities that could endanger the fetus. If the justification behind passing a law against abortion is to ensure that someone sustain a life even against her will, why is this obligation only visited upon women? Consider a trivial but illustrative example. Suppose I happen to come across a drowning child in a lake who through no fault of her own finds herself in this predicament. Imagine someone else threw her in. Imagine further that to save her, I need only to get my pants wet. If the democratic majority cares about preventing harm to the fetus by forcing the mother to carry it to term, it must a fortiori care about the harm to the child, a child who can only be saved by forcing the bystander to help. If cutting the umbilical cord allowing the fetus to die in the mother’s womb is ‘‘murder,’’ why is failing to help the child not a crime? This incongruity is all the more illuminating, because American law does not generally require any kind of compelled Samaritanism (see Regan, 1979; cf. Thomson, 1971, p. 64.). The current state of American law repudiates such forced Good Samaritan duties. It flatly rejects such conscription. For instance, the Restatement of Torts says: ‘‘The fact that the actor realizes that action on his part is necessary for another’s aid or protection does not itself impose upon him a duty to take such action’’ (The Restatement, 1965 y 314). Moreover, only two states in the United States – Minnesota and Vermont – legally compel this kind of aid (Eisenberg, 2002, p. 654, fn. 25). In other words, failing to help the drowning child –’’killing’’ her – is not a crime in most places. Said differently, the law does not generally require that I help others in critical need. Since the democratic majority does not seek to pass forced Good Samaritan laws, it cannot justify prohibiting abortion on grounds of preserving life.

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In fact, the passerby that sees the drowning child in the lake, unlike the pregnant woman, suffers minimal hardship in being forced to save the child’s life. Vermont’s forced Good Samaritan law, one of only a few such statutes in the United States, only compels help if it can be done ‘‘without danger or peril to’’ oneself or ‘‘interference with’’ other important duties.6 It requires far less than what an abortion statute requires of women. The Texas abortion statute at issue in Roe only permitted an exception for ‘‘saving the life of the mother’’ (Roe, p. 118). The comparison is stark and telling. Under the Vermont statute, you need not help if doing so will expose you to some nonlife threatening danger or interfere with other ‘‘important’’ duties.7 The abortion statute, though, requires the pregnant woman to carry the fetus to term for nine months unless doing so threatens her very life. While there may even be disagreement over whether the fetus is a person, there is no doubt that the innocent drowning child is one. In fact, the penalty for violating the Vermont statute – for failing to help – is a fine of no more than $100. Contrastingly, the statute overturned in Roe doled out a prison sentence of two to five years for anyone helping a woman procure an abortion (Roe, p. 118). Second, even if there may be publicly justifiable reasons to impose this burden on pregnant women but not others, it is even more telling that the demos does not seek to compensate women for carrying the fetus for nine months. Because the fetus cannot be removed without destroying it, the pregnant woman is the only who can carry the fetus to term. But this does not mean she has to shoulder all the costs. This doesn’t mean she is the only one who can help. Why can’t the state assist her by compensating her for the pregnancy? Or why can’t the man who impregnated the woman be liable for such damages in an effort at least to mitigate the woman’s burden? In his partial concurrence to Casey, Justice Harry Blackmun states that by ‘‘restricting the right to terminate pregnancies, the State conscripts women’s bodies into its service, forcing women to continue their pregnancies, suffer pains of childbirth, and in most instances, provide years of maternal care’’ (Casey, p. 929, concurring in part). Jed Rubenfeld puts it even more starkly: Laws that prohibit abortion differ categorically from virtually every other law on our books. They do not merely prohibit a particular act. They oblige an unwilling individual to carry out a specific, sustained, long-term, life-altering, and life-occupying course of conduct. A woman forbidden to abort an unwanted pregnancy is forced to bear a child. She is made to accept significant health risk. She will undergo radical bodily change. She may die. (2005, p. 110)

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Realizing that only women bear this burden, Justice Blackmun remarks that the ‘‘State does not compensate women for their services; instead it assumes that they owe this duty as a matter of course’’ (Casey, p. 929, concurring in part). Laws prohibiting abortion do not contemplate any kind of compensation or cost spreading for the pregnant women. In fact, Andrew Koppelman (1990) argues that laws against abortion amount to involuntary servitude, something that the Thirteenth Amendment categorically prohibits. According to Koppelman: If citizens may not be forced to surrender control of their persons and services, then women’s persons may not be invaded and their services may not be coerced for the benefit of fetuses. It is as simple as that. The injury inflicted on women by forced motherhood is lesser in degree than that inflicted on blacks by antebellum slavery, since it is temporary and involves less than total control over the body, but it is the same kind of injury. (1990, p. 487)

The fact that this kind of servitude is only placed on women means that the justification for laws like the one in Roe is about something besides preventing harm to the fetus. Perhaps, in line with Ginsburg’s dissent, abortion laws seek to institute some moral code. Or, as Blackmun suggests, they are sexist, seeking to impose a particular conception of the good on women. In fact, while scholarly work suggests that abortion legislation is about the role of women and motherhood (see, e.g., Balkin, 2005; Luker, 1984; Siegel, 1992, 2005; West, 2005), it fails to connect this to the larger issue of justification and bad faith. Kristen Luker’s classic work on the subject argues that this debate is really about substantive ‘‘attitudes toward children, sexuality, parenthood, the proper role of women, and the like’’ (1984, p. 10). Reva Siegel (1992, 2005) characterizes abortion legislation as a kind sex based regulation precisely because these laws compel women to become mothers. In rewriting Roe Jack Balkin similarly argues that: [R]estrictions on abortion require pregnant women to bear children and become mothers whether or not they wish to. They force women either to devote themselves to traditional roles and responsibilities of child care that lack both status and economic remuneration or else to suffer the stigma and shame of admitting their inability to care for their own children by placing them up for adoptions. Restrictions on abortion thus employ basic social expectations about the duties and responsibilities of motherhood as a lever to pressure women into traditional roles of child care. (2005, p. 45)

And such legislation seeks to place this burden only on women. After all, those who favor prohibiting abortion do not seek to compel others – namely men – to help.

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But this line of scholarly work fails to connect this assessment to public reason and the discourse of public justification. For if the justification for these laws and policies is a particular conception of the good life, in this case, a view of what it means to be a good women, this fails the test of public justifiability. Abortion legislation like the kind at issue in Roe violates public reason. The constitutional discourse ought not to be about rights – either the right to privacy or bodily control or the rights of women. Framing the constitutional objection in the language of rights rules out the option of prohibiting abortion altogether. (And as I argue below, the discourse of identity rights is needlessly antidemocratic.) It ought to be about the fact that this kind of legislation is not publicly justifiable. Thus, the state exceeds its power by enacting such laws and policies. The discourse of rights focuses simply on the act of destroying the fetus whereas the discourse of justification rightly takes into account the duration of the forced pregnancy. Nowhere does Roe discuss the duration of the pregnancy. Roe frames the issue simply in terms whether a woman’s decision to terminate the fetus is within the scope of a right to privacy. The language of rights limits the time frame of the constitutional debate, by focusing simply on the act of destroying the fetus: is it an exercise of a right to privacy or is it ‘‘murder.’’ Again, rights work by classifying particular interests, areas, or classifications off limits to state regulation. Asking whether abortion is such a protected interest misses the fact that legislation prohibiting abortion effectively forces the pregnant woman but not anyone else to sustain life against their will; in this case, carry a fetus for nine months. The discourse of rights problematically masks the sexist rationale that underlies such legislation. This is why the role of women and motherhood are rarely part of the abortion debate, a debate that is almost exclusively about the act of aborting. Recasting the discourse of judging from an emphasis on rights to an emphasis on public justification exposes the public unjustifiability of laws against abortion. Importantly, this conclusion is independent of whether the fetus has moral status. The discourse of rights needlessly requires that a court weigh in on the relationship between the fetus’ life and the woman’s decision to destroy the fetus. This is why Roe posits a framework where the state may not prohibit abortion in the first trimester but under certain circumstances may do so in the third. The discourse of rights places emphasis on how best to category the act of destroying a fetus. Because the discourse of public justification focuses on the reasons for prohibiting abortion, it does not

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hinge on the status of the fetus. For even if the fetus is a person, a court may still strike down conventional abortion legislation. A court ought to do so precisely because this legislation is based on a particular conception of the good, one that privileges motherhood and a traditional role for women. If a court strikes down abortion legislation on these grounds – the demos has not proffered a publicly justifiable reason or done so in good faith, this does not rule out the regulation of abortion. This is the crucial implication of a discourse of public justification rather than rights. It means that if the polity decides to prohibit abortion, it must impose this burden on more than just pregnant women or suffer the justificatory charge of bad faith. Or it must consider compensating women for doing so. These are just a few of the democratic possibilities that the discourse of public justification invites. But, as it stands now, compelling only women to do so, without even a discussion of compensation – bracketing the issue of Samaritanism – suggests that some nonpublicly justifiable reason is afoot. Striking down abortion legislation with the discourse of justification makes compromise at least possible. A court stands to open up democratic debate rather than definitively close it by invoking the language of rights. This may alleviate or even thwart a charge of ‘‘judicial activism’’ by those who are pro-life. While a pro-life majority may disagree with a court’s decision to strike down an abortion law, the discourse of justification still gives them an opportunity to try again to prohibit abortion. A court invalidates a law but still keeps the option ‘‘on the table.’’ This does not ‘‘remove the ball from the legislators’ court.’’ It invites the demos to fashion legislation that prohibits abortion for reasons that are publicly justifiable. Perhaps the polity may decide to force others to help or compensate women for imposing this duty on them. A turn to justification, then, channels the constitutional debate over abortion in a more constructive manner. The issue is not about the moral status of the fetus – a debate that invites the all or nothing features of rights. Rather, the debate is about how far we are willing to go to force individuals to help those in need. Since the discourse of justification is a more modest way of declaring laws unconstitutional, a court may appear less judicially active, mitigating the force of the CM difficulty. Even though a court invalidates abortion legislation, it does so in a way that does not categorically prevent the polity from prohibiting abortion. Precisely because the discourse of justification facilitates a possible compromise – one that implicates issues of compelled Samaritanism and compensation, it is a more democratic way of striking down legislation.

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Draws Citizens Together: A More Democratic Response to Discriminatory Legislation Unlike identity rights, powers attach to the state rather than the relevant group. A law that is based on nonpublicly justifiable reasons is simply outside the scope of state power. The emphasis is on the demos itself not the groups that make it up. So under a language of public justification and constitutional powers, the Court can invalidate a prohibition on same-sex marriage by contending that it is based on a religious rationale rather than a secular one. After all, what is the publicly justifiable reason for limiting marriage to only opposite sex couples? Any such reason cannot be made in good faith. For instance, a democratic majority that seeks to limit marriage in this way in order to encourage procreation must explain why it permits those who are clearly infertile or espouse no desire to have children from marrying or suffer the justificatory charge of bad faith. Even the flimsy justification that permitting same-sex marriage will destroy the institution of marriage itself cannot stand. If the democratic majority genuinely seeks to preserve current and future opposite sex marriages, it should outlaw divorce or limit the number of marriages an individual may undertake in his or her lifetime. The fact that the majority does not pursue or even consider these measures reveals that their concern is not with ‘‘preserving’’ opposite sex marriages. Ultimately, the only justification for limiting marriage to opposite sex couples is a belief in the moral superiority of one set of relationships over another. This is precisely the view of certain natural law theorists who selfconsciously argue for a perfectionist conception of the good in terms of intimacy and marriage where gay intimacy is morally inferior to its opposite sex, marriage counterpart (see, e.g., Finnis, 1993; George, 2004). But such perfectionist views straightforwardly violate the liberal neutrality that my argument assumes. Stephen Macedo argues that there is ‘‘no reasoned, secular case’’ against same-sex marriage (1995, p. 261). This is why Gordon Babst characterizes a prohibition on same-sex marriage as a ‘‘shadow establishment’’ drawing from the constitutional prohibition on establishing religion (2002). He argues that limiting marriage in this way is based on some religious or sacred justification. In fact, some scholarly work goes farther arguing that we should abolish state sanctioned marriage and put in its place a civil union status or leave individuals to contract privately in line with a liberal, non-perfectionist account of public reason (see, e.g., Card, 1996; Fineman, 1995; Metz, 2007, 2010; Polikoff, 2008; Warner, 1999). But at a minimum, since prohibiting same-sex marriage is based on a particular

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moral or religious conception of the good, it fails the requirement of public reason. A prohibition on same-sex marriage is unconstitutional, because it goes beyond the power of the state: the state has acted on reasons that are not publicly justifiable. Importantly, a court can make this claim without invoking the rights of gays and lesbians or speaking in the language of identity. When a court strikes down a law on the basis of powers, it does not do so on behalf of a particular group. It points to the way in which the polity itself has gone astray – going beyond its powers. Again, the traditional constitutional objection to limitations on same-sex marriage is ultimately made on behalf of a particular group or minority, here gays and lesbians. It is not that the state does not possess the power to prohibit samesex marriage. But that, although within the scope of state power, these laws and policies improperly discriminate on the basis of sexual orientation or violate the rights of gays and lesbians by failing to apply universal rights to a particular minority. By invoking any of these claims, a court separates citizens in a polity. It draws a line between those within the minority group – gays and lesbians – and those outside of it, needlessly triggering the charge of ‘‘special rights.’’ It frames the issue as one about ‘‘us’’ – the majority – versus ‘‘them’’ – gays and lesbians. This informs the antidemocratic critique of identity rights. Framing the objection in terms of powers is democracy affirming. Powers flow from the state, rights flow from individuals or minority groups. Much democratic theory argues that those who would primarily be affected by a decision should have a say in deciding it (see, e.g., Benhabib, 1986; Habermas, 1996, p. 458; Shapiro, 1999). This connects interests with democratic decision-making and participation. As Ian Shapiro reasons: ‘‘[T]hose whose basic interests are most vitally affected by a particular decision have the strongest claim to a say in its making’’ (1999, p. 37). Making an issue about identity rights, then, straightforwardly gives that particular group the ‘‘strongest claim’’ in the debate. Contrast this with characterizing the issue as one where the state has exceeded its powers. An objection that a particular state has exceeded its power of taxation affects all those within the state, just as an objection that Congress has regulated activity outside of interstate commerce affects all those within the United States. This kind of objection is not the province of a particular group. A powers claim endows all within the polity an equal interest in challenging the unjustifiable law or policy. This stands to inform ‘‘a politics of common aspiration.’’ It prevents the majority from caricaturing the minority as oppressors. Under a powers framework, a court

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homes in on the fact that a prohibition on same-sex marriage is not publicly justifiable. A court would not be proclaiming or vindicating rights. It would not be remedying possible democratic defects in a law by focusing on the relevant identity group or class. Rather than make the defect of a law hinge on a democratic majority’s failure to take into account the interests of a subordinated minority – here gays and lesbians, the defect turns out to be the lack of a publicly justifiable reason. Ely’s theory of judicial review asks a court to invalidate discriminatory legislation that fails to take into account the interests of particular minorities. The failure stems from the fact that the majority has not considered the interests of gays and lesbians. A discourse of public justification, on the other hand, asks a court to invalidate legislation that is based on reasons that invoke a particular moral or religious conception of the good. The failure stems from the fact that the majority has not acted on justifications that are acceptable to all reasonable citizens. Under the principle of public reason understood in this way, the democratic failure concerns all citizens not just a particular identity group. A prohibition on same-sex marriage is unconstitutional not because it discriminates against gays and lesbians but because it is not publicly justifiable. Since the language of identity does not stand at the fulcrum of the constitutional objection, it undermines the core logic of the special rights retort. This may render it easier to persuade those in the polity that such homophobic legislation is illegitimate. The demos exceeds its powers in limiting marriage to opposite sex couples. This turn to powers would draw citizens together rather than separate them on the basis of identity. From a democratic perspective, framing a challenge to a law in terms of constitutional powers rather than group rights is a more inclusive argument. This informs a commitment to deliberative democracy rather than undermining it. Importantly, this stands to mitigate the charge of counter-majoritarianism. Again, when a court invalidates a law or policy on the basis of identity, it runs counter to the majority by invoking minority rights. When a court invalidates the same law on the basis of powers, it runs counter to the majority by invoking the demos itself. So under a powers approach, a court strikes down a prohibition on same-sex marriage on behalf of all citizens rather than a particular group. A turn toward powers expands the political scope of those with normative standing to challenge the law. By ‘‘normative standing’’ I do not mean mere legal standing. Even in a conventional powers case, every citizen may not challenge the law. Legal standing requires that a claimant have suffered some injury from the challenged legislation.

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My analysis focuses on the discourse a court deploys to invalidate a law or policy. An objection to laws prohibiting same-sex marriage grounded in the language of powers instead of identity expands the scope of those whose interests are at stake in overturning the law. It points to a more modest language of judging and thus a more democratic way of striking down legislation. The discourse of powers rather than identity rights minimizes the antidemocratic sting of the CM difficulty. After all, we have a common interest to make sure that the state (our demos) does not go beyond its constitutionally proscribed powers; in this case, acting on reasons that are not publicly justifiable.

CONCLUSION By recasting the liberal discourse of judging from rights to public justification in the cases of abortion and same-sex marriage, a court stands to channel democratic debate in a more constructive manner while proffering a more inclusive method of striking down legislation. Liberal constitutional theory must wrestle with the necessity of judicial review. The tension between democratic rule and liberty/equality seems unavoidable. This chapter relieves some of this tension by considering how a court strikes down legislation. This chapter argues for a novel turn to the discourse of public justification and constitutional powers to proffer a more democratic discourse to do so. While this chapter does not directly seek to introduce a new theory of judicial review, this shift in language may stand to remake the relationship between liberal democracy and judicial review. It places the court in the position neither of proclaiming that a right has been violated nor of declaring that the interests of an identity group have not been taken into account. Rather, a court’s role is to ensure that the demos, that the political majority acts on reasons that are publicly justifiable. By invoking the demos itself in the discourse of judging, a court does not exacerbate the counter-majoritarian nature of judicial review.

NOTES 1. United States Code, Title 18, Part I, y 248. 2. For an argument that scholars overstate the backlash thesis with regards to gay rights see Keck (2009). 3. Article I, Sec. 8. Constitution of the United States.

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4. While the discourse of powers often invites distinctions between the federal and state government, my argument is not about federalism but rather the language of powers that often accompanies it. 5. Amendment I. Constitution of the United States. 6. 12 V.S.A.y 519 (a) (1968). 7. 12 V.S.A.y 519 (a) (1968).

ACKNOWLEDGMENTS I presented earlier versions or parts of this argument at the following places where I received invaluable feedback: Northeastern Political Science Association Conference (2010), the Association for Political Theory Conference (2010), Yale University Political Theory Workshop (2010), and Vanderbilt Law School (2011). I also thank the anonymous reviewers for their helpful comments.

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Habermas, J. (2001). Remarks on legitimation through human rights. In The postnational constellation: Political essays (M. Pensky, Trans. & Ed.). Cambridge: Polity Press. In re Marriage, 43 Cal. 4th 757 (California 2008). Keck, T. (2004). The most activist supreme court in history: The road to modern judicial conservatism. Chicago, IL: University of Chicago Press. Keck, T. (2009). Beyond backlash: Assessing the impact of judicial decisions on LGBT rights. Law & Society Review, 43(1), 151–186. Klarman, M. J. (2005). Brown and Lawrence (and Goodridge). University of Michigan Law Review, 104, 431–489. Koppelman, A. (1990). Forced labor: A thirteenth amendment defense of abortion. Northwestern University Law Review, 84, 480–535. Kukathas, C. (2003). The liberal archipelago: A theory of diversity and freedom. Oxford: Oxford Press. Kutz, C. (2003). Groups, equality, and the promise of democratic politics. Issues in Legal Scholarship. The Origins and Fate of Antisubordination Theory (Article 13). Retrieved from http://www.bepress.com/ils/iss2/art13 Kymlicka, W. (1995). Multicultural citizenship. Oxford: Clarendon Press. Larmore, C. E. (1987). Patterns of moral complexity. Cambridge: Cambridge Press. Lax, J. R., & Phillips, J. (2009). Gay rights in the states: Public opinion and policy responsiveness. American Political Science Review, 103(3), 367–386. Lemieux, S. E., & Watkins, D. J. (2009). Beyond the ‘Countermajoritarian Difficulty’: Lessons from contemporary democratic theory. Polity, 41(1), 30–62. Lister, A. (2005). Review essay: How to defend (same-sex) marriage. Polity, 37(3), 409–424. Luker, K. (1984). Abortion and the politics of motherhood. Berkeley, CA: University of California Press. Macedo, S. (1995). Homosexuality and the conservative mind. Georgetown Law Journal, 84, 261–300. MacIntyre, A. (1984). After virtue: A study in moral theory (2nd ed.). Notre Dame, IN: Notre Dame Press. Mason, R. (2010). Reorienting deliberation: Identity politics in multicultural societies. Studies in Social Justice, 4(1), 7–23. McCulloch v. Maryland, 17 U.S. 4 Wheat. 316 (1819). Metz, T. (2007). The liberal case for disestablishing marriage. Contemporary Political Theory, 6, 196–217. Metz, T. (2010). Untying the knot: Marriage, the state, and the case for their divorce. Princeton, NJ: Princeton Press. Nickel, J. W. (2007). Making sense of human rights (2nd ed.). Oxford: Wiley-Blackwell. Parekh, B. C. (2000). Rethinking multiculturalism: Cultural diversity and political theory. Basingstoke: Macmillan. Pinello, D. R. (2003). Gay rights and American law. New York, NY: Cambridge Press. Planned Parenthood v. Casey, 505 U.S. 833 (1992). Polikoff, N. D. (2008). Beyond (straight and gay) marriage: Valuing all families under the law. Boston, MA: Beacon Press. Powe, L. A., Jr. (2000). The warren court and American politics. Cambridge, MA: Belknap Press. Quong, J. (2002). Are identity claims bad for deliberative democracy? Contemporary Political Theory, 1, 307–327.

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Quong, J. (2004). The scope of public reason. Political Studies, 52(2), 233–250. Rawls, J. (1996 [1993]). Political liberalism. New York, NY: Columbia Press. Rawls, J. (1999 [1971]). A theory of justice (Rev. Ed.). Cambridge: Harvard University Press. Raz, J. (1986). The morality of freedom. Oxford: Oxford University Press. Regan, D. H. (1979). Rewriting Roe v. Wade. Michigan Law Review, 77, 1569–1646. Roe v. Wade, 410 U.S. 113 (1973). Rosenberg, G. N. (2006). Courting disaster: Looking for change in all the wrong places. Drake Law Review, 45, 795–829. Rubenfeld, J. (2005). What Roe v. Wade should have said: The nation’s top legal experts rewrite America’s most controversial decision (J. M. Balkin, Ed.). New York, NY: New York Press. Scanlon, T. M. (1998). What we owe each other. Cambridge: Cambridge University Press. Schacter, J. (1994). The gay civil rights debate in the states: Decoding the discourse of equivalents. Harvard Civil Rights-Civil Liberties Law Review, 29, 283–317. Schlesinger, A. M. (1992). The disuniting of America. New York, NY: W.W. Norton & Company. Shachar, A. (2001). Multicultural jurisdictions: Cultural difference and women’s rights. Cambridge: Cambridge Press. Shapiro, I. (1986). The evolution of rights in liberal theory. Cambridge: Cambridge Press. Shapiro, I. (1999). Democratic justice. New Haven, CT: Yale Press. Shapiro, M. (1966). Freedom of speech: The Supreme Court and judicial review. Englewood Cliffs, NJ: Prentice-Hall. Siegel, R. B. (1992). Reasoning from the body: A historical perspective on abortion regulation and questions of equal protection. Stanford Law Review, 44, 261–381. Siegel, R. B. (2005). What Roe v. Wade should have said: The nation’s top legal experts rewrite America’s most controversial decision (J. M. Balkin, Ed.). New York, NY: New York Press. Simon, W. H. (1999). Three limitations of deliberative democracy: Identity politics, bad faith, and indeterminacy. In S. Macedo (Ed.), Deliberative politics: Essays on democracy and disagreement. New York, NY: Oxford Press. Solum, L. B. (1993). Constructing an ideal of public reason. San Diego Law Review, 30, 729–762. The Restatement (Second) of Torts. 1965. Thomson, J. J. (1971). A defense of abortion. Philosophy and Public Affairs, 1(1), 47–66. Varnum v. Brien, 763 N.W. 2d 862 (Iowa 2009). Vermont Statutes Annotated (V.S.A.). 1968. 12 y 519: Emergency Medical Care. Waldron, J. (2000). Cultural identity and civic responsibility. In W. Kymlicka & W. Norman (Eds.), Citizenship in diverse societies. New York, NY: Oxford Press. Warner, M. (1999). The trouble with normal: Sex, politics, and the ethics of queer life. Cambridge: Harvard Press. West, R. (2005). What Roe v. Wade should have said: The nation’s top legal experts rewrite America’s most controversial decision (J. M. Balkin, Ed.). New York, NY: New York Press. Wolfson, E. (1994). Crossing the threshold: Equal marriage rights for lesbians and gay men and the intra-community critique. New York University Review of Law and Social Change, 21, 567–615. Young, I. M. (1990). Justice and the politics of difference. Princeton, NJ: Princeton Press.

ON POLITICS AND LAW: RECOVERING THE PRITCHETT SYNTHESIS John Brigham ABSTRACT 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.

Commentary on the decision making of justices on the Supreme Court, from the academy, particularly Political Science, to ‘‘the mainstream media,’’ is increasingly comfortable with political explanations for judicial decisions. Indeed, currently it is hard to find a place for law among serious students

Special Issue: The Discourse of Judging Studies in Law, Politics, and Society, Volume 58, 29–44 Copyright r 2012 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000058005

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of the judiciary. Yet, in confirmation hearings for the Supreme Court, nominees regularly argue that only law will be a factor in their decision making. The nominees disavow or simply deny the prevailing wisdom in the academy. Today, the difference between the two perspectives seems total. That is, in explaining what judges do, it seems it is either law or politics and it is nearly impossible to imagine a place for both. This was not the case when C. Herman Pritchett first established that there were political dimensions of judging in his work on the Roosevelt Court in 1946. Over a half-century later, Supreme Court nominee John Roberts was very clear that he believed his political orientation would not be a factor in his judging when he testified before Congress. Judges, he said, were like umpires and politics was no more relevant to what they did than it would be to calling ‘‘Balls’’ and ‘‘Strikes.’’ This claim came only a few years before The New York Times announced that the Roberts Court was ‘‘the most conservative in decades’’ (Liptak, 2010). This chapter proposes that in the last 50 years the position that holds it is law that governs the decisions of judges has become quite hostile to those who would suggest politics plays a role. This is sometimes called the formalist position. Here it will be simply described as the law or legal position. Law, as a basis for judgment, has recently seemed to be so antithetical to politics that the tension has become something of a cliche´. At the same time, the perspective that looks to politics, which has roots in Legal Realism and political jurisprudence, has itself become more extreme and less nuanced. Indeed, the view that there is politics on American appellate courts has become so extreme as to be the complete opposite of the view that law plays a role. Indeed, both have become caricatures and lack the nuance that comes from incorporating both. After examining the way these worlds have been divided, by attention first to politics and then to law, the chapter considers the possibility of a synthesis that is not only attainable but may have once been the characteristic way of thinking about how those trained in the law think about their field. This approach involves a return to something like what Pritchett engaged in and probably should represent. The synthesis would recognize that in institutional settings like the Supreme Court there is a mix of law and politics at work in judging. The relevance of this fact is applied to the challenges presented by those who are critical of the Citizen’s United decision (2009). Nomination hearings, commentary in the national media, and the discourse of law and social science will be examined. I will also draw on arguments made in Constitutional Language (1978), originally written as a dissertation for Pritchett and comments directed at Keith Bybee’s work, All Judges Are

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Political (2010). This recent book offers a unique version of the synthesis aspired to in this chapter.

SEEING POLITICS IN LAW During the summer of 2010, in an article in The New York Times, under the headline, ‘‘Court Under Roberts Is Most Conservative in Decades,’’ Adam Liptak used political science data to establish the Roberts Court’s conservative orientation, both in direction and in its extent. The premise of the Liptak article introduced in political science in the 1940s and pretty much established as conventional wisdom by the 1950s, is that judicial opinion has political dimensions or attitudes and that these can be measured on a scale from the most conservative to the most liberal. A key finding, which focused on judicial review, was that, ‘‘When the Rehnquist court struck down laws, it reached a liberal result more than 70 percent of the time. The Roberts court has tilted strongly in the opposite direction, reaching a conservative result 60 percent of the time’’ (Liptak, 2010). The article held that the political orientations of all judges could be arrayed on a continuum in the fashion known in political science as ‘‘the attitudinal model.’’ Liptak’s analysis is based on the percentage of conservative opinions rendered by the Court. The analysis also measured the conservatism of justices and found four of the six most conservative justices who had served since 1939 to be serving on the Roberts Court. The Times article demonstrated that the view that there is politics in the judiciary has become mainstream. The position, though widely accepted, is also quite extreme. Some of the extremism is ‘‘sensational’’ and some is a matter of argumentation. In commenting on the emergence of the Roberts Court, Liptak holds, ‘‘But only one change – Justice Alito’s replacement of Justice O’Connor – really mattered.’’ This is journalistic sensationalism. But it’s the kind of sensational statement that goes largely unnoticed. In the last generation or so it is this focus on politics at the expense of law that is the new reality. It is really quite a radical, uncompromising, and one-dimensional reality. The source for the above quote is Lee Epstein, but the explicit quote attributed to her ‘‘That’s a real switch in terms of ideology,’’ is less extreme than the way the analysis is presented. In this regard, the nature of the jurisprudential perspective regarding what is going on has changed. Now, the strong suggestion is what, or even all, we need to know about the Supreme Court is the political orientations of the justices. We don’t need to know if they

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reason well, are devoted to law or pride themselves in a judicial temperament or their detachment from political influences. We simply need to know if they are conservative or liberal, Republican or Democrat, pro Choice or pro Life. When Liptak’s article came out, public law scholars were ecstatic. There they were, featured in a big spread in The Times, the paper of record for many law scholars in the United States. A number of these scholars, like Epstein and Harold Spaeth, were mentioned in the article. The pride spread through the community. I, however, felt somewhat critical. I felt the need to object to the article for leaving law out of the story. I sent the following message to the Law and Courts list, a discussion group of legal scholars who cover things like the authority of courts and judges. As a student of C. Herman Pritchett my take on The New York Times story was bittersweet. Sure Herman thought it was silly to deny that there is politics at the Supreme Court or in constitutional law. But he also thought it silly, and dangerous, to act as if that is all there is. I felt Pritchett’s passion for law. I witnessed it in Archibald Cox and I read about it with Felix Frankfurter. When The Times treats the story of the Constitution or the Supreme Court as little more than box scores and political scales they do a disservice to those students of the Constitution who are passionate about law. You have only to look at Pritchett’s treatise on the Constitution to sense the significance he saw in basic rights like due process and equal protection or structures like federalism or bicameralism. A decision of the Supreme Court might be understood in terms of politics but for Pritchett (or Cox or Frankfurter) the Constitution could never be ‘‘just’’ politics. I believe this is also true of Sotomayor and Ginsberg. I think that is why we should worry more than just a little about what The New York Times has been doing in the name of Political Science. The position offered by The New York Times, and supported by some circles in political science, is not simply the insertion of politics into law. The position sees judging in a way that all but entirely leaves law out of the picture. It seems that in this jurisprudential angle the politics of positioning in the academy dumbed ‘‘up’’ the claims for scientific politics. That is, it pursued scientific truth that included provable models. These needed a firm foundation and it was thought that the foundation had to be beyond the conventions of ordinary discourse, the political position went forth and multiplied under the banner of its revelations being true. It’s not that what it says is wrong. Indeed, the Roberts Court is very conservative and may well be the most conservative in history. Its rather that the perspective does not situate the choices judges make

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in a legal context and gives the impression that all we need to know about the Roberts Court is that it is very conservative (Epstein & Knight, 1997). This extreme position on politics is associated in political science with the ‘‘attitudinalist’’ perspective. Although linked in its origins to C. Herman Pritchett’s work, which will be discussed below, the extreme political perspective was championed by Glendon Schubert (1965) and Harold Spaeth (1972) in the 1960s and 1970s and then taken up by Jeff Segal (1984) and Lee Epstein (George & Epstein, 1992) in the 1980s and 1990s. The biblical foundation is Segal and Spaeth’s The Supreme Court and the Attitudinal Model published in 1993. The success of this group in populating the field over the last 50 years is impressive. Various forces led to the development of the extreme position on politics in law. Perhaps the main influence on the development of the political position on judging was scientific aspiration and the sense in professional journals that this was ‘‘where the action is.’’ The desire among students of government, who had been content to work with eclectic methods that included legal, literary, philosophical, and historical, to become political scientists led to a mode of inquiry based on politics as a force or influence that could be distinguished from normative frameworks. Advocacy and its handmaidens, the humanities, would be left behind along with the institutional dynamics of courts and the profession of law that had come to constitute legal life. From Pritchett’s original formulation, Glendon Schubert and Harold Spaeth posited the primacy, and in many respects the exclusivity, of politics on the important Appellate Courts. Following a half-century of development in this area, beginning with the publication of Pritchett’s book, the attitudinalists defended their turf with subtle expansions and aggressive responses as they moved into the 21st century. These political science scholars of courts received the article in The New York Times as a kind of vindication.

THE CURRENT LEGAL POSITION Part of understanding the extreme nature of the position taken by The Times with regard to the significance of politics on the Court involves realizing the extreme and uncompromising positions that seem, against all odds, to be thriving on the traditional, formalist, legal, or ‘‘other’’ side of the law v. politics debate in jurisprudence. It seems odd to find such unrelenting confidence in positions that go so flatly against the accepted wisdom in

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the academy. Perhaps part of the insight needs to deal with the fact that it is so extreme. Judge John Roberts in his hearings on nomination to become Chief Justice of the United States flatly denies the relevance of politics in judging.1 In his opening statement given September 12, 2005 he offered that, ‘‘Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them.’’ The next day, speaking of judicial method, Roberts offered the opinion that ‘‘Saying a judge is result oriented, that type of judge, that’s about the worst thing you can say about a judge.’’ Since other nominees have taken the same tack, it deserves note that the confirmation process is a highly charged political environment where denial of politics, even talking politics, has its advantages. The challenges of the nomination process are to avoid controversy. Roberts seemed very comfortable during the process and engaged in animated exchanges with the Senators. One of the most free flowing and indicative of the confidence Roberts has in his ability to draw a line between law and politics came in questioning from Senator Charles Schumer of New York. Schumer, not without confidence himself, tried to get the Chief Justice to slip up and admit that his refusal to offer opinions on issues of the day was untenable. Schumer seemed like he was trying to capture something of the absurd. But Roberts responded at every turn. At one point the discussion turned to opinions on movies. SCHUMER: Let me just say, sir, in all due respect – and I respect your intelligence and your career and your family – this process is getting a little more absurd the further we move. y It’s as if I asked you: What kind of movies do you like? Tell me two or three good movies. And you say, ‘‘I like movies with good acting. I like movies with good directing. I like movies with good cinematography.’’ And I ask you, ‘‘No, give me an example of a good movie.’’ you don’t name one I say, ‘‘Give me an example of a bad movie.’’ SCHUMER: You won’t name one. Then I ask you if you like ‘‘Casablanca,’’ and you respond by saying, ‘‘Lots of people like ‘Casablanca.’’’ (LAUGHTER) you tell me it’s widely settled that ‘‘Casablanca’’ is one of the great movies. SPECTER: Senator Schumer, now that your time is over, are you asking him a question? SCHUMER: Yes. (LAUGHTER) I am saying, sir – I am making a plea here. I hope we’re going to continue this for a while, that within the confines of what you think is appropriate and proper, you try to be a little more forthcoming with us in terms of trying to figure out what kind of justice you will become. SPECTER: We will now take a 15 minute break, reconvene at 4:25. ROBERTS: Mr. Chairman, could I address some of the y SPECTER: Oh, absolutely. Absolutely. I didn’t hear any question, Judge Roberts y

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ROBERTS: Well, there were several along the way. LEAHY: y want to break anyway. You go right ahead. ROBERTS: I’ll be very succinct. SPECTER: You are privileged to comment. This is coming out of his next round, if there is one. (LAUGHTER) SCHUMER: I guess they’ll all be. ROBERTS: First, ‘‘Dr. Zhivago’’ and ‘‘North by Northwest.’’ (LAUGHTER)

It is not just the nomination process that probes the prospect of politics on the judiciary and leads justices to respond defensively. After he had been confirmed, Chief Justice Roberts pointedly criticized the partisan atmosphere after President Barack Obama’s first state of the union address in 2010. He mentioned in particular the president’s criticism of the Court’s decision in Citizen’s United, which led to the justices being surrounded by cheering Democrats and Justice Samuel Alito being caught on camera shaking his head in disagreement with the President. Roberts’ criticism came in a speech at the University of Alabama Law School in March of 2010 and was in response to a student question. He distinguished his concern as not being about criticism generally but about the setting where justices in their robes are in the front row of an address with significant partisan dimensions. According to Roberts, ‘‘y[T]here is the issue of the setting, the circumstances and the decorum. The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court – according the requirements of protocol – has to sit there expressionless, I think is very troubling.’’ The Obama administration responded by calling attention back to the ruling and its political implications, which the President called a break from precedent in his state of the union address. In oral argument, which the current Chief Justice has engaged in energetically, he has a partisan spirit and barely moderates his criticism of liberal positions. As Jeffery Toobin reports in his New Yorker article (2009), Roberts is relentless in his challenges to counsel. And, it appears to me, the Chief Justice focuses on counsel opposing the conservative position but his position on judging is often sophisticated and nuanced. Similarly, in the decisions themselves, the judges, all of whom have a legal background and serve for life, are at pains to show that their decisions are exercises of professional, rather than political, judgment. In Bush v. Gore (2000), as in most Supreme Court cases, the Court argues that it is not political while the political dimensions of the case are all over it.2 In a number of Roberts’

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decisions it’s hard to find the kind of formulaic invocation of law that we saw in his confirmation testimony (Baze, 2008; Citizens United, 2010; McDonald, 2010). But there are important Roberts’ opinions that rely on a kind of simple analytic positivism that denies the relevance of politics on the Court and postulates straightforward reasons for ruling as he does. For instance, in Bong Hits (2007), Roberts’ opinion rejects ‘‘Frederick’s argument that this is not a school speech case y[t]he event occurred during normal school hours. It was sanctioned by Principal Morse ‘as an approved social event or class trip,’ and the school district’s rules expressly provide that pupils in ‘approved social events and class trips are subject to district rules for student conduct.’’’ He also relies on Morse, the principal, who ‘‘when she saw the sign, she thought that ‘‘the reference to a ‘bong hit’ would be widely understood by high school students and others as referring to smoking marijuana.’’ And ‘‘y dismissing the banner as meaningless [a suggested interpretation] ignores its undeniable reference to illegal drugs.’’ Finally, and famously, in Parents Involved v. Seattle (2007) Roberts offered that ‘‘[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’’ This statement is not about the meaning of law in a precise sense. Rather, it is about the meaning law has and it suggests a more straightforward interpretation of law’s impact and consequences than might be thought conventional for judges. Thus, in the process of nomination, it is the professional mysteries ‘‘of bench and bar’’ that pushes the discussion of law and politics into extreme forms. In the contest over the reception of decisions, as exemplified in the 2010 State of the Union address, the claim that judging can and should be removed from politics has more obvious political dimensions. And in various cases, the opinions of the justices are at pains to establish that their rulings are based in law rather than politics.

PRITCHETT’S ‘‘ORIGINAL’’ POSITION The introduction of politics into the conventional wisdom about how judging proceeded had a more complex beginning. Prof. C. Herman Pritchett, a professor at the University of Chicago, had relatively limited objectives in the 1940s as a student of the courts and the Constitution. He sought to demonstrate that political considerations could explain some judicial choices. His interests directed the research to the first Justice Roberts, Owen Roberts. Pritchett wanted to nail down the importance of

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Roberts’ switch because that move shifted the Court’s majority from opposition to the New Deal to greater acquiescence in the Roosevelt’s governmental response to the Depression. When Pritchett first began to publish his work, there were some who denied that politics was part of the judicial process. Pritchett wanted to demonstrate that, beyond a reasonable doubt, politics was an aspect of what the Court did. In his scholarship and in his life, Pritchett did not deny the relevance of legal considerations. These legal considerations are, for the most part, the institutional truths that make decision making in the judiciary different from making decisions in the Congress or the Executive Branch. Things like life tenure, judgments based on cases rather than statutes, the relative insulation of the decision makers from the public, the tradition of precedent, and the distinctively legal processes of argumentation made the judiciary different. Some of these considerations lead to the unanimous decisions that have been so characteristic of courts like the one Pritchett worked on. Other considerations are the context that reveals what it means for an opinion to be written in one way, rather than another. Instead of antagonists on opposite sides of a law/politics divide the struggle, for Pritchett, was over the introduction of different methodological considerations. Pritchett opens The Roosevelt Court (1948) with characteristic humility. He reports that he ‘‘began to wonder’’ what it was in a particular case and in the lives of the justices ‘‘that led them to disagree’’ (1948, p. xi). He went on to identify an interest in ‘‘the influence of individual predilections on the development of law.’’ In discussing his inspiration and the investigatory process he makes it clear he is not a lawyer but a political scientist. In this orientation, he says he brings a set of skills and interests to the study of law. He is very conscious that he is bringing an orientation somewhat outside that of the lawyer. As an investigator, Pritchett is drawn to dissent because it represents an opening into attitudes and values that are, he says, impossible to see in unanimous decisions. The suggestion is that away from the dominant and characteristically legal agreement on outcomes that unanimous cases represent, Pritchett proposed a way to see politics. With both considerations brought to bear, the suggestion is, one has a more complete story. One facet of Pritchett’s perspective with a bearing on its relevance for our understanding of law and politics today should not be all that different from the present attitudinal orientation. This is the focus on ‘‘judicial decision making.’’ Decision making, as he presents it is the stuff of politics that interacts with the stuff of law. The research is treated as if it was going on ‘‘inside’’ the institutional setting that we conventionally (or conventionally when he wrote) think of as the place where we find this politics.

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Pritchett clearly thought that recognizing the politics in judging would elevate our understanding of the courts and place our knowledge of them on a sounder foundation. And, while the focus of his work is to introduce a more rigorous political analysis there is interesting commentary that reveals more of the interface or intertwined nature of law than we traditionally associate with Pritchett. For instance, in his Preface, Pritchett quotes Walton Hamilton to the effect that the decision of a court ‘‘y differs from the ordinary decision of everyman about an everyday matter as a critical intellectual process differs from a half intuitive experience’’ (1948, p. xiv). Pritchett, and Hamilton offer their respect for this higher-level process and their desire to clarify it, not destroy it. And then, in discussing the lack of enthusiasm reported on the Court for his work he says he is amicus curiae, friend of the court. Pritchett not only remained interested in doctrinal legal developments as evidenced by his monumental constitutional law text but he was concerned that the perception of greater certainty that numbers are accorded may not be deserved. He believed that the certainty might be illusory if applied to the law generally rather than carefully circumscribed hypotheses. To C. Herman Pritchett, fact gathering and counting ought to have remained grounded in the stuff of law and not spin itself ‘‘out into a void.’’ He seemed, in his classes to be troubled by the extremes on both sides. As I recall, from sitting in those classes from 1973 to 1975, this meant he was concerned about the approach taken by Wallace Mendelson on the one hand and Glendon Schubert on the other. In 1998 I participated in a session commemorating the 50th Anniversary of Pritchett’s The Roosevelt Court. It was a thoughtful project and it directed some of its attention to Pritchett’s role in the early expressions of behaviorism. My working relationship with Pritchett had ended over 20 years before but I had seen Herman at meetings and kept in touch. All the while he helped me a great deal with my career and came to APSA meetings regularly until just before he died in 1995. Jeff Segal and other ‘‘attitudinalists’’ had put the panel together. These were the presumed inheritors of the Pritchett legacy.3 For the session, I had prepared remarks to honor my teacher and, I assumed, continue the tradition of acknowledging his contribution to an important movement in the field. But I found the session to be far more critical. Pritchett was held up by commentators as someone who at best didn’t ‘‘go far enough’’ and potentially may even have been a closet believer in the existence of a distinctive field of law. I had in fact once thought the attitudinalists might be on the wane. That they might have burned out in a Glendon Schubert fantasy but this ‘‘celebration’’ of the last 50 years appeared to have been a revision of the inherited wisdom

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as to Pritchett’s place at the founding. It was a powerful restatement of their aspirations for the next half-century. A few years ago, William Ford, of the John Marshall Law School in Chicago wrote a very helpful analysis of Pritchett’s place in the discipline (2006). He published it in the online journal Empirical Legal Studies which is devoted to work in the tradition of Herman Pritchett, but which, as we have seen, often distinguishes current scholarship from Pritchett’s. Ford takes up a piece by Barry Friedman from earlier in the year (2006) in which Friedman explores the origins of the law v. politics divide. For Friedman, political scientists were enamored of Legal Realism and they sought to describe how judges were deciding cases. Legal scholars, on the other hand, stuck with efforts to convince judges how cases should be decided. While critics of Pritchett’s work, like Wallace Mendelson (1963), cast him in an extreme light, others have seen Pritchett in more moderate terms. Lawrence Baum (2003) carefully describes the framework offered by Pritchett as holding that judicial choice was ‘‘y free choice, but among limited alternatives and only after [the judge] has satisfied himself that he has met the obligations of consistency and respect for settled principles which his responsibility to the Court imposes upon him’’ (see also, Pritchett, 1954). Ford emphasizes Pritchett’s recognition of value in approaches other than behavioral or Realist but he concludes that these other approaches became less fashionable and were dropped from the journals. This led to uneven development where ‘‘traditional’’ law work became associated with law school and the teaching of Constitutional Law and public law scholarship in political science journals became associated with the behavioral approach.

BACK TO THE FUTURE Rather than helping us to understand the nature of the legal system, the current dramatic dichotomy between law and politics makes it hard to see what is distinctive about legal politics. This is particularly true with regard to reactions to the Citizens United case. Here, a majority of justices on the Supreme Court held that corporations have a constitutionally protected right to put money into political campaigns. When President Obama criticized the decision at the State of the Union address in 2010, he spoke directly to the Justices of the Supreme Court who sat before him in their official robes. Justice Samuel Alito reacted to the President by shaking his head. This was widely seen as a partisan response. Chief Justice Roberts

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spoke instead of it being unseemly for the robed justices to be sitting in the midst of such a partisan setting. To the extent that Roberts speaks to institutional facets of the political system that treat judicial decisions as a special kind of politics, the reaction to Citizens United will have to take those things into account. These include the super majoritarian requirements of a constitutional amendment to overturn a constitutional decision of the Supreme Court. Some current scholarship promises progress in making these institutional dimensions of judicial power more central to judicial scholarship generally and political science scholarship in particular. In the spring of 2011 I commented on Keith Bybee’s book All Judges Are Political, Except When They Are Not at the New England Political Science Association meeting in Hartford. What I said was y I was going to say Keith’s book seemed simple enough but I think I was imagining what he was doing, before reading it. After all we have known judges are political for at least 75 years even though it has not been ‘‘official.’’ Upon more diligent examination, like looking at the cover, I have to admit Bybee’s approach is complex. For one thing, I had trouble getting past the title y at least its pretty clear the title is not simple. Then there are the images on the cover y lots of different fonts and then political buttons and a button for the Supreme Court y a political button. What is that all about? Well, you never know if you should hold an author responsible for his cover, much less judge a book by it but all this external action is indicative of a quiet contribution. When you open the book, right off you notice it’s not simple. For instance, it’s not just about the Supreme Court. The book is about our understanding that judges are political but that somehow they get away with saying they are not. The book accepts that we have known about this politics for a long time. Yet, the judges have us believing they are somehow different in spite of the fact that we know they are not. Inside I was brought back to the title, actually to the subtitle, or, a word in the subtitle. I was brought back to ‘‘hypocrisy.’’ And, not just to ‘‘hypocrisy’’ but Keith takes us to ‘‘hypocrisy, insincerity and other forms of pretense.’’ This book is a serious engagement with the authority of judges. Where their authority comes from and why it persists. Why we let them get away with it. I remember some years ago that Leif Carter began Reason in Law, a thoughtful book on the legal process (which Tom Burke now co-edits), by saying that he would disabuse the reader of the notion that judges are neutral arbiters (Carter, 1979). This was one of ‘‘Five Misconceptions of Law,’’ which included the idea that ‘‘Rules of Law Resolve Conflicts,’’ and that ‘‘Laws

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Should be Stable,’’ and ‘‘Judges Know What They Are Doing.’’ I had trouble using the book because my students didn’t have the misconceptions Leif assumed. The students at the University of Massachusetts didn’t believe judges were neutral (or police or teachers for that matter). I thought they were ‘‘way ahead’’ of Leif, but perhaps they just had a different orientation. Certainly their life experiences had been different. We have come a long way since that first edition. The book is now edited with Tom Burke and no longer contains the naı¨ve ‘‘Five Misconceptions of Law’’ (Carter & Burke, 2009). We need to trumpet a new starting point. This is the special aspect of Bybee’s book. It starts from political jurisprudence, where (as I said above) I think that my students have been all this time. This is where Leif, and Tom, have come around to. The political perspective is our new beginning. This is where The New York Times is. Politics is all over the courts. In the matter of theorizing about judging, Keith is starting out way ahead of where jurisprudence has been for a while. So its not surprising that he gets somewhere new. I would like to consider where he gets. Although this is not a fully articulated place, it’s a really good place to be starting at. I would add a few considerations. For one thing, one wonders how to conceptualize ‘‘beyond hypocrisy.’’ It is not nice to say the justices are hypocrites and to Keith, nice is important. I agree with Keith that candor or honesty is not a panacea. It is not going to set things, other than the record, straight. But for Keith courtesy is a key and I admit to struggling with courtesy. I can see its potential. There is some peace and courtesy in judicial process. But I think it is a bit more a style or symptom than a core element of judicial authority. Keith writes of ‘‘the constructive use of pretense’’ and his approach is quite wonderful. There is indeed an aspect of the current acceptance of politics in judging and judging as ‘‘above’’ politics that is not completely rational or straightforward. But recognizing there is something politically consequential to pretense is simply a beginning. I think courtesy and pretense suggest a kind of terrain, a framework rather than a full-blown description of how judges secure authority. I have done some of the work in Material Law (2009). Clearly the legal process endures with contradictions rather than in spite of them. For Keith a kind of fac- ade make this possible. I like fac- ade; it’s a cool idea, the way Keith uses it. But the idea sounds an awful lot like the Realist critique. It sounds like the ‘‘cult of the robe,’’ in different cloth perhaps. Court worship is itself a cultish endeavor. I have said that more than once. But I think that it is in courtness rather than law that we find the answer to the puzzle Keith presents. As Martin Shapiro taught us y we need a place of resolution. In spite of their flaws we have come to think that we need courts.

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So the key to the law/politics relationship, and to cases like Bush v. Gore, was certainly not the revelation of partisanship in the courts and it may have been related to courtesy. I think that if Al Gore had focused on partisanship in the decision the resolution of the election might have gotten ugly. Lots of people thought this. But Al Gore was not just being courteous. He was reflecting a resignation, a sense, widely shared, that there was no place other than the courts to go for a resolution of the very political quandary that confronted us all. The dichotomy between law and politics, like the formation of the American political system into two major parties in the political system, forces us into oppositional camps inadequately understanding the opposition. While we are used to this in war, maybe even politics, the dichotomy loses what is distinctive and most interesting about law. As many have pointed out these distinctive features are institutional (Brandwein, 2006; Gillman, 1993; Hays, 2010). Basic institutional practices, like the idea of judicial review or the elevated status of the U.S. Supreme Court, are aspects of American politics that combine law and politics. Pritchett saw these things as essential to an understanding of how law works and they amount to the sort of constraints on behavior that Bybee identifies with courtesy and manners. American law has come to see Marbury v. Madison as foundational. Indeed, the institutional lore on Marbury reads a highly contested case from 200 years ago as a foundation for the authority of judges. Thus the modern institutional meaning of an old and politically charged legal conflict gives authority to judges in the United States whatever their politics. And the Court itself, once a minor player in the national government operating out of decidedly inelegant quarters in the basement of the U.S. Capitol now commands respect that rivals the other branches. That respect too is an institutional reality that combines law and politics. These dimensions of American legal life provide the background for Al Gore’s gracious and courteous acceptance of the Court influenced outcome of the 2000 presidential election. Institutional power of this sort was a given for Pritchett and it is given new life in Bybee’s formulation. We are in an exciting time for the study of judicial decisions. Perhaps it is even the dawn of a more sophisticated paradigm.

NOTES 1. There are other areas, like equal protection, where Justice Roberts makes a virtue of ignoring conventional wisdom. See Parents Involved (2007).

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2. I have not found Justice Roberts commenting on the decision, although, obviously (since he was a Bush appointee) he was not on the Court at the time. 3. I sought to be striking off on my own in the tradition I associated with Pritchett and his wonderfully clever student Walter Murphy.

REFERENCES Baum, L. (2003). C. Herman Pritchett: Innovator with an ambiguous legacy. In N. Maveety (Ed.), The pioneers of judicial behavior (pp. 57, 60). Ann Arbor, MI: University of Michigan. Brandwein, P. (2006). The civil rights cases and the lost language of state neglect. In R. Kahn & K. I. Kersch (Eds.), The Supreme Court and American political development. Lawrence, KS: University Press of Kansas. Brigham, J. (1978). Constitutional language. Westport, CT: Greenwood Press. Brigham, J. (1998). Discussant, panel on judicial behavior at 50: Reflections on the golden anniversary of Pritchett’s The Roosevelt Court, APSA, Boston, MA, September 3–6. Brigham, J. (2009). Material law. Philadelphia, PA: Temple University Press. Bybee, K. (2010). All judges are political-except when they are not: Acceptable hypocrisies and the rule of law. Stanford: Stanford University Press. Carter, L. H. (1979). Reason in law. Boston, MA: Little, Brown and Co. Carter, L. H., & Burke, T. F. (2009). Reason in law (8th ed.). Boston, MA: Little, Brown and Co. Epstein, L., & Knight, J. (1997). The choices justices make. Washington, DC: CQ Press. Ford, W. (2006, June 22). Legal realism, Herman Pritchett, and the great divide. Empirical Legal Studies. Friedman, B. (2006). Taking law seriously. Perspectives on Politics, 4, 261–276. George, T. E., & Epstein, L. (1992). On the nature of Supreme Court decision making. American Political Science Review, 86(3), 323–337. Gillman, H. (1993). The constitution besieged: The rise and demise of Lochner era police powers jurisprudence. Durham, NC: Duke University Press. Hays, B. (2010). Review of shaping America law and politics book review. Retrieved from www.lpbr.net/2010/08/shaping-america-supreme-court-and.html. Accessed on August 25, 2010. Liptak, A. (2010). Court under Roberts is most conservative in decades. The New York Times, July 26. Mendelson, W. (1963). The neo-behavioral approach to the judicial process: A critique. American Political Science Review, 57, 593. Pritchett, C. H. (1946). The Roosevelt Court. Chicago, IL: Macmillan. Pritchett, C. H. (1954). Civil liberties and the Vinson court. Chicago, IL: University of Chicago Press. Schubert, G. (1965). The judicial mind: Attitudes and ideologies of Supreme Court justices. Evanston: Northwestern University Press. Segal, J. (1984). Predicting Supreme Court cases probabilistically: The search and seizure cases (1962–1981). American Political Science Review, 78, 891–900. December 1984. Segal, J., & Spaeth, H. (1993). The Supreme Court and the attitudinal model. New York, NY: Cambridge University Press.

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Segal, J., & Spaeth, H. (2002). The Supreme Court and the attitudinal model revisited. New York, NY: Cambridge University Press. Spaeth, H. J. (1972). An introduction to Supreme Court decision making. New York, NY: Chandler. Toobin, J. (2009). No more Mr. Nice Guy. The New Yorker, May 25.

CASES Baze v. Rees 555 U.S. 35 (2008) Bush v. Gore 531 U.S. 98 (2000) Citizens United v. Federal Election Commission 555 U.S. 08 (2010) Marbury v. Madison 1 Cranch 137 (1803) McDonald v. Chicago 561 U.S. ___ (2010) Morse v. Federick 551 U.S. 393 (2007) Parents Involved v. Seattle 551 U.S. 701 (2007)

‘‘DON’T THEY UNDERSTAND JUDICIAL INDEPENDENCE?’’ DISCOURSES OF JUDGING IN UNDERGRADUATE LEGAL STUDIES CLASSROOMS: JUDICIAL RETENTION AND SAME-SEX MARRIAGE RULINGS Renee Ann Cramer ABSTRACT 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 samesex marriage in the state. Drawing on participant–observation research

Special Issue: The Discourse of Judging Studies in Law, Politics, and Society, Volume 58, 45–71 Copyright r 2012 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000058006

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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.

In a protest vote against ‘‘judicial activism,’’ a majority of Iowans recently refused to retain the three judges responsible for a decision legalizing same-sex marriage in the state. Polarizing discourses of judging at play in the Iowa judicial retention elections entered my interdisciplinary, legal studies classroom. Legal studies students were 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 importance, given the limitations of current political and electoral discourses about judging. Voters in Iowa recently refused to retain three of the judges responsible for Varnum et al. v. Brien (763 NW 2d 862), the 2009 decision legalizing same-sex marriage in the state. The non-retention vote has no impact on the validity of the marriages, no power to stop future marriages, and in the same election, the same voters refused to authorize a Constitutional Convention that would have opened the door to traditionalist and conservative definitions of marriage. The ouster of the three judges was, in essence, a protest vote to punish what radio and television ads called ‘‘judicial activism.’’ This essay examines the discourses of judging at play in the Iowa judicial retention elections, from the vantage point of their entrance into my undergraduate, interdisciplinary, legal studies classroom in the form of student dialogue, class discussion, and web-board postings on the topic. Undergraduate legal studies classrooms are ideal places in which to engage

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discourses on judging, and to invite students to analyze and understand popular culture and contemporary political representations of the proper roles of judges and judging in the United States. Many students, after the election results came in, were apoplectically angry at the assault on judicial independence constituted by the ouster of three of the judges responsible for the decision in Varnum v. Brein. Even my politically conservative students, including those who support a Constitutional amendment to define marriage as between a man and a woman, were incensed by the outcome of the vote. One asked the class, ‘‘Are they [Iowa voters] idiots? Don’t they understand judicial independence?’’ She followedup, ‘‘They should be forced to take this class!’’ What was most fascinating, for me, was that the majority of my students were able to articulate reasoned opposition to the way that Iowa ‘‘retained’’ (and, ultimately, did not) our judges. I was cheered by their understanding of the ‘‘Rule of Law,’’ but disheartened by their lack of faith in the ‘‘Rule of Democracy.’’ Legal studies students were able to articulate a complex range of views regarding the judiciary, judicial activism, and same-sex marriage, and that if their (mostly) civil discourse on the topic of judging were widely practiced, the judicial retention election would have had a very different outcome. The essay points to the importance of legal studies education, the limitations of current political and electoral discourses about judging, and the potential role for engaged academics in expanding and contextualizing the conversations we have, regarding judicial independence, judicial activism, and rights. It also points, though, to limits in that educational experience – limits regarding students’ cynicism about, and lack of engagement in, electoral political processes. Before turning to the classroom experiences, however, and their implications for democratic politics, I summarize the politics surrounding same-sex marriage and the judiciary in Iowa, in 2009, 2010, and 2011.

SAME-SEX MARRIAGE AND JUDICIAL RETENTION For a While, Iowa was Gayer than California On April 3, 2009, the Iowa State Supreme Court handed down a pathbreaking decision, affirming a lower court decision in favor of same-sex marriage in the state.1 Varnum was a unanimous decision striking down a 1998 amendment to Iowa law defining marriage as a union between only a man and a woman.2 At its legal core, the decision holds that statute

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unconstitutional on equal protection grounds, and uses intermediate scrutiny to find that the Iowa marriage law discriminated invidiously and impermissibly, on the grounds of sexual orientation. The decision also does significant cultural work, however, in normalizing and accepting same-sex couples as valuable members of Iowa life. The second line of the decision, written by Justice Mark Cady, reads: ‘‘Like most Iowans, [the twelve citizens bringing this suit] are responsible, caring, and productive individuals.’’ It continues: They maintain important jobs, or are retired, and are contributing, benevolent members of their communities. They include a nurse, business manager, insurance analyst, bank agent, stay-at-home parent, church organist and piano teacher, museum director, federal employee, social worker, teacher, and two retired teachers. Like many Iowans, some have children and others hope to have children. Some are foster parents. Like all Iowans, they prize their liberties and live within the borders of this state with the expectation that their rights will be maintained and protected – a belief embraced by our state motto. Despite the commonality shared with other Iowans, the twelve plaintiffs are different from most in one way. They are sexually and romantically attracted to members of their own sex. The twelve plaintiffs comprise six same-sex couples who live in committed relationships. Each maintains a hope of getting married one day, an aspiration shared by many throughout Iowa. (p. 872)

The decision goes on to elaborate, and eviscerate, the several arguments to state interest made by the County in opposition to same-sex marriage. These included allegations that same-sex couples are unfit to parent, that same-sex marriage harms the ‘‘traditional’’ and ‘‘sacred’’ institution of heterosexual marriage, and that allowing same-sex marriage mitigates against a state interest in promoting procreation. While recognizing the ‘‘strong and deep-seated traditional beliefs and popular opinion’’ of many Iowans who would oppose same-sex marriage, Cady argues that ‘‘A statute inconsistent with the Iowa Constitution must be declared void’’ (p. 865). The decision concludes: Now that we have addressed and rejected each specific interest advanced by the County to justify the classification drawn under the statute, we consider the reason for the exclusion of gay and lesbian couples from civil marriage left unspoken by the County: religious opposition to same-sex marriage. The County’s silence reflects, we believe, its understanding this reason cannot, under our Iowa Constitution, be used to justify a ban on same-sex marriage. (p. 904)

Cady’s decision further argues that affirming the right of some religious organizations and denominations (in particular the Unitarian and United Church of Christ) to marry same-sex couples, while allowing other churches and faiths to deny the sacrament of marriage to those couples, is in line with

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free exercise doctrine, and more affirming of religious freedom than not. Though this argument was often lost on those who argued for the ouster of the judges; it was an important one for my students, particularly those who hold their faith to be important. Progressives in Iowa celebrated. They also pointed to Iowa’s legacy of progressive politics. The Obama campaign and the role the Iowa Caucuses had plaid in elevating his candidacy in the national race were both much in mind. Iowa Senate Majority Leader Michael Gronstal and House Speaker Pat Murphy (both Democrats) issued a joint press release, saying ‘‘When all is said and done, we believe the only lasting question about today’s events will be why it took us so long. It is a tough question to answer because treating everyone fairly is really a matter of Iowa common sense and Iowa common decency. Iowa has always been a leader in the area of civil rights.’’ Indeed, Iowa has long been a ‘‘leader in civil rights,’’ as Patricia Cain notes. She writes, ‘‘In the battle to recognize interracial marriage, Iowa was the third state in the nation to repeal its antimiscegenation law. That occurred in 1851 y [I]n 2009, it [found] itself in a select group of only six states willing to extend equal dignity and respect to same-sex committed couples’’ (Cain, p. 44). In the aftermath of the decision, the estimated 9,500 same-sex couples living in the state had access to marriage,3 and many couples from outof-state came to Iowa to marry. In all, during the first year it was possible, 2,020 same-sex couples were married in the state, which accounted for more than 10% of the total marriages accomplished in Iowa during that period. Several of my Iowa friends were married.4 My friends in New York, California, and elsewhere rejoiced at my good fortune to live in a forward-thinking state, while decrying the lack of action in their own. A year later, when California legalized same-sex marriage, a Des Moines T-shirt company made it possible to celebrate (Fig. 1).5 Social and Religious Conservatives in Iowa did not celebrate. Rather, they raged, and organized. With only 44% of voters in the state reporting themselves to be ‘‘in favor’’ of same-sex marriage,6 there was an opening for majoritarian politics to attempt to reverse the effect of the decision. Almost immediately, a movement toward a constitutional amendment defining marriage as between a man and a woman went forward. Such an amendment was first introduced in 2008, after the lower court ruling in Varnum, which invalidated the statutory protection of traditional [sic] marriage. In 2008, and again in 2009 and 2010, the bill bringing the amendment failed to make it out of committee. In 2011 – after the retention election results and a change in control of the House, as well as the governor’s

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Fig. 1.

RayGun T-Shirt.

office – the newly elected Republican-controlled House voted in favor of the resolution (HR 6) by a vote of 62-37. The Democrat-controlled Senate did not bring the resolution to a vote, and looks able to halt forward movement on that amendment, in coming legislative sessions. Same-sex marriage in the state could also be banned by constitutional convention. The Iowa state constitution allows a convention question to be raised once a decade; the 2010 ballot measure calling for a constitutional convention to address same-sex marriage failed to reach the necessary 2/3 majority vote. Also on the 2010 ballot, however, were the names of all the judges in Iowa up for judicial retention elections. As Ian Bartrum, a professor at Drake University’s Law School, noted in a panel discussion of the retention elections, ‘‘In response [to Varnum] a coalition of socially conservative Iowans, under the loose leadership of former high school principal and GOP

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gubernatorial candidate Bob Vander Plaats,7 mounted a vigorous campaign to oust those Justices that happened to be up for retention’’ (Bartrum, p. 1). As a result of public opinion, and the unprecedented influx of money from outside the state, the three judges up for retention who were signatories to the unanimous Varnum decision – David Baker, Michael Streit, and Marsha Ternus – were removed from office by a simple majority vote, with 54% of votes against retention.8

Judicial Retention Caufield (2005, 2007a, 2007b) provides very competent and thorough histories of judicial retention schemes in the United States, and argues persuasively that the traditional debates surrounding retention focus on the potential tension between judicial independence and judicial accountability (p. 164).9 She points out that though the federal system of judicial selection is based on appointment with significant barriers to discharge from the office, early on state legislatures widely preferred, and adopted, judicial election (p. 167). Roscoe Pound, in 1912, and William Howard Taft (in 1913, and prior to both his presidency and his seat on the U.S. Supreme Court) were early advocates of state judicial merit selection. They both argued before the ABA that judicial elections inappropriately politicized the judiciary, and should be stopped. Albert Kales first devised a plan for judicial selection that was ‘‘designed to preserve the independence of the judiciary while still allowing for democratic accountability,’’ in the 1930s (Caufield, 2005, p. 627). Kales’ plan became known popularly as the ‘‘Missouri Plan,’’ so called because Missouri was the first state to adopt merit selection, in 1940 (Caufield, 2005, p. 627 at note 19).10 Merit selection, combined with judicial retention elections, has been promoted as a way to increase the legitimacy of courts, and promote judicial independence from the other branches of government, while simultaneously increasing the longevity of judicial bench holders. Merit selection systems are thought to remove the judicial process form politics, both at nomination and in the discharge of judicial functions, seat more qualified judges, and (perhaps) increase the power and role of the state Bar association (Caufield, p. 173). Iowa is one of 15 states that uses a combination of merit selection and retention election to staff at least some of the judiciary.11 In Iowa, personnel at all levels of the state judiciary are selected via merit selection; Supreme Court judges are voted on for retention after 8-year terms; court of appeals

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and district (trial) court judges have 6-year terms.12 And in Iowa, as elsewhere, judicial retention elections are usually ‘‘sleepy’’ affairs (Sulzberger). In the scholarly literature, judicial retention elections are frequently criticized as being so ‘‘issue less and lackluster’’ resulting in low voter turn out and a rather uneducated electorate (Hall & Aspin, p. 342). Indeed, unless the election becomes a salient issue, ‘‘most voters don’t give much thought to judicial elections’’ (Caufield, 2007b, p. 6). From 1962, when the state adopted judicial retention elections, until 2010, no Supreme Court judge in Iowa had ever not been retained, and Iowa voters support retention at averages slightly higher than the national average for states with retention elections.13 A mean of 78.4% of Iowa voters make affirmative decisions in retention trial court elections, with very little (less than 1% point) deviation from that mean over the course of election cycles (Hall & Aspin, pp. 344–345).

The 2011 (Non)Retention Vote Against ‘‘Activist Judges’’ Consider this: voters in Iowa (and elsewhere) routinely retain their judges, in Iowa, ‘‘no sitting State Supreme Court justice has ever been defeated, and only four lower court judges were removed in nearly 50 years.’’ In fact, typically ‘‘more than a third of [Iowans] who go to the polls’’ in any given year, ‘‘do not even cast votes in judicial races’’ (Sulzberger). In Iowa, and elsewhere, retention votes are usually remarkable only for lacking a compelling narrative for voters. Even so, it is not improbable that judicial retention elections in the state in 2010 would be a flashpoint for antigay activism. Cain notes that every state judicial decision allowing same-sex marriage has been met with backlash (p. 44), and that that backlash has increasingly focused on the judges responsible for the expansion of rights. She writes, of the decision to allow same-sex marriage written by Judge Chang of the Hawaii Supreme court in 1993, that ‘‘Many people were astounded by the thought that a handful of judges in a state like Hawaii could change that situation through a single case’’ (Cain, p. 36). And, she notes that the legislative debate surrounding the 1996 Defense of Marriage Act (DOMA) was ‘‘replete with statements about how judges in Hawaii were forcing same-sex marriage on the rest of the country’’ (Cain, p. 56, note 67). In large part, DOMA was intended to give state legislatures power to determine the validity of same-sex marriage; it reduced the powers of both the federal government, and state judiciaries.

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As judges in various states made ruling on behalf of same-sex couples, Cain argues, the nature of the debate around gay rights shifted. Time and again, a state supreme court ruling would be over-turned through state congressional action – legal same-sex marriage became legal civil unions. In 2004, President Bush referenced same-sex marriage activism in his State of the Union address, decrying the Massachusetts Supreme Court decision that permitted it (Cain, p. 38). Cain notes an increase in press coverage of the issue, particularly after 2006, and argues that much of the public debate centered on the proper role of judges in a democracy. In other words, same-sex marriage became talked about as part of a discourse of judging that had a long history in the United States. This discourse featured claims that ‘‘activist judges’’ were running roughshod over individual rights and liberties, and traditional norms, values, and institutions. Previously those norms referred to included racial segregation; now, they referred to ‘‘traditional marriage.’’ In both cases, they were seen to be at risk from an activist judiciary. This was certainly the discourse mobilized in 2010, in Iowa; and, though we perhaps should have known to expect it, it felt exceptional, and was unprecedented. We watched as Vander Plaats’ group ‘‘Iowa for Freedom’’ hired six full-time staff members (Somashekhar), and ran radio ads alleging that the judges in the Varnum case had ‘‘struck down God’s Law,’’ and ‘‘imposed their morality’’ (Turner). As the Des Moines Register put it, ‘‘The retention challenge triggered a battle never seen in Iowa’s judicial history.’’ Independent groups spent nearly 1.5 million dollars on the campaign (Casey, 2011; Caufield, personal communications). Anti-retention television, radio and Internet ads portrayed the justices as activists; robo-calls urged a ‘‘no vote.’’ U.S. Rep. Steve King embarked on a statewide bus tour to rally ‘‘no’’ voters.14 The National Institute for Money in State Politics issued a report in early 2011, indicating that the overwhelming majority of these anti-retention activities were paid for by out-of-state organizations such as the National Organization for Marriage and the American Family Association’s AFA Action Incorporation (Casey, 2011). Scholars observing the process agree with press reports about the exceptionality of the moment. Bartrum writes that the retention elections were ‘‘transparent efforts at political intimidation,’’ (p. 3) undertaken by a variety of in- and out-of-state actors, including Cornerstone World Outreach church, whose pastors in Sioux City ‘‘pushed their congregations to vote against retention’’ (p. 2). Current Republican party presidential hopefuls made statements against the Iowa Supreme Court decision.

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Michelle Bachman, for example, told supporters, ‘‘I think Iowans were rightly outraged where judges imposed their morality on Iowa rather than letting Iowans vote to decide’’ (Wiser). Some even donated their own money to the campaign to defeat the justices. As the Des Moines Register recently reported, Newt Gingrich ‘‘made a six-figure contribution to a Mississippi group [American Family Association] that financed the Iowa effort to remove justices who legalized same-sex marriage here’’ (Jacobs; Sulzberger).15 NIMSP indicates that 100% of the funding for Iowa for Freedom came from Tupelo-based AFA. Progressive Iowans watched in amazement as the ‘‘Judge Bus’’ rolled across the state. Envisioned by Representative Steve King, the ‘‘Judge Bus’’ was sponsored in large part by the Family Research Council and the National Organization for Marriage; it was a full-size tour bus painted bright blue, featuring pictures of the three judges up for retention from the Varnum decision, with the word ‘‘NO’’ written across their faces. Text on the bus read, elsewhere, ‘‘Vote: NO Retention for Activist Judges,’’ and ‘‘Support Iowa Families, NOT Activist Judges.’’ The back of the bus asked Iowans, ‘‘ARE your state supreme court justices DEFYING the will of the PEOPLE?’’ All in all the bus covered 320 miles and made 6 stops,16 rallying supporters along the way. Congressman King made a radio ad defending the ‘‘covenant’’ of marriage, and arguing that the Supreme Court of Iowa had ‘‘created unimagined rights’’ that ‘‘defied’’ ‘‘the will of the people’’ by ‘‘imposition’’ and ‘‘decree.’’ The ad hit every hot button – in it, King alleged that Iowans were at risk of losing their rights by unlawful judicial activism, and made semiotic reference to President Obama, saying that the judges had acted in an ‘‘audacious’’ manner (a reference to Obama’s campaign slogan ‘‘Audacity of Hope’’). These references continued in a third set of discourses, which alleged that Iowa judges were moving the state toward the progressive (and immoral) politics of the rest of the nation. News reports and letters to the editor stressed this theme. One Des Moines resident, self-identified 55-year-old conservative Christian Charlie Romstad, told an assembled group in that city, ‘‘It seems as though Iowa has this tendency to try to play with the big boys, show an example to the world like California or Texas. I think that’s what these judges tried to do with their opinion. But that’s just not Iowa.’’ A television ad from Iowa for Freedom and the Family Research Council replayed the same themes as the Steve King radio announcement, but with the added punch of visuals that would reinforce, for voters, what Iowa is – as opposed to what the judges wanted it to be. ‘‘If they can reverse hundreds

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of ears of tradition,’’ the commercial asks, ‘‘what is next?’’ As ominous music plays, we see images of beloved Iowa ‘‘traditions’’ – The Boy and Girl Scouts, homes with white picket fences, and hunters in a field with their dogs and their (dead) ducks. As the commercial closes with a ‘‘Vote No’’ message, the music becomes military drum corps revelry.17 Though they were not barred, by state law, from engaging in a campaign to maintain their jobs, the three judges at the center of the controversy did very little to make their case to the public (Somashekhar). NIMSP reporting indicates that there was one ‘‘vote yes’’ campaign operating in the state using independent funding; Fair Courts for Us Committee spent $417,267 on the campaign. According to Casey’s report, ‘‘The group purchased radio and web ads and conducted a bus tour’’ (2011). Former Justice Sandra Day O’Connor did visit the state prior to the elections, ‘‘urging the state to resist the national tug toward partisanship’’ (Sulzberger). Bi-partisan coalitions of organizations formed two groups: ‘‘Justice, Not Politics,’’ and ‘‘Iowans for Fair and Impartial Courts,’’ in order to defend the judges against the recall, but there were two difficulties (Pederson & Corning, 2010). First, the judges and their supporters could only speak a discourse of judging that made it divorced from, and other than, politics; campaigning, when politics is framed as corrupting of the judiciary, is nearly impossible. As Marsha Ternus, one of the judges who lost the retention vote, later told a group at the American Constitutional Society, ‘‘We decided early on not to form any campaign committees. We did not want to contribute to the situation by campaigning like politicians’’ (Turner). Second, the poll numbers outside of the urban areas of Iowa were so clearly indicating non-retention, that it seemed a misuse of funds to vigorously campaign to keep the judges. In fact, by some journalistic accounts, the anti-retention groups spend nearly $1,000,000 in the state, while pro-retention groups spent just over a quarter of a million dollars.18 Mostly, advocates of retention wrote letters to the editors of the state’s newspapers,19 and participated in public forums, held often on college campuses, stressing, as Judge Robert Hanson did in September 2010, ‘‘The activity that is advocated by these TV commercials that are now airing, in my view, demonstrates a complete misunderstanding, a complete misunderstanding of the role of the judiciary in our form of government’’ (Nelson). In other words, the campaign to save the judges was framed as a campaign to save the judicial function – this played well with my students, but did not have power to retain the judges. Preliminary analysis of voting data shows that the Judge Bus seems to have had no measurable effect on retention votes, nor did the rates of

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marriage licenses granted to same-sex and man/woman couples seeking to marry. Education, religion, and social conservative views, however, did matter in this vote. Voters who voted no on the judicial retention elections lived in counties with lower levels of educational attainment; they lived in rural counties; they lived in counties that had supported McCain over Obama in the 2008 elections. As well, counties with higher numbers of socially conservative voters (those voters voting for Vander Plaats in the June 2010 GOP gubernatorial primary), voted no on judicial retention at higher rates than those living in primarily fiscally conservative counties (those voting for Terry Branstad in the GOP gubernatorial primary).20 Even absent a direct link to voting turn-out, though, it is clear that the language of the television ads, radio announcements, and Judge Bus was replicated in people’s responses to reporters’ questions as they left the polls in November of 2010. The Des Moines Register reports: Bernie Noel of Bloomfield said he had never voted ‘‘no’’ on a justice until Tuesday. The 43-year-old said he opted to retain his local district court judges, who ‘‘do a great job, and are good people.’’ But the gay marriage ruling swayed him against the justices. ‘‘I don’t think they should have the power to change the constitution and take things into their own hands,’’ Noel said. ‘‘It’s a hard job to do, but here, in this case, I just really think they overstepped their bounds.’’21

As Bartrum has noted, the retention election took place in ‘‘an increasingly polarized climate in which the phrase judicial ‘activism’ has taken on highly politicized meanings’’ (p. 8). It is precisely here, in the discourses around the proper role of judges, that I believe a legal studies education can usefully intervene.

DISCOURSES OF JUDGING IN THE LEGAL STUDIES CLASSROOM: METHODS AND FINDINGS Methods I teach in and direct an interdisciplinary legal studies program at a regionally ranked, mid-size, comprehensive university. The major has 150 students, three full-time faculty dedicated to the program, and between eight and eleven affiliated faculty teaching within it in any given semester. The university is located in Des Moines, Iowa – which is a capitol city, a hub of political action during the caucus season (which is now at least 18 months long), and the home of several financial services and publishing companies.

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The undergraduate student body tends to be 50% Iowan, with a mix of urban and rural kids; the other half is drawn primarily from the suburbs of Kansas City, St. Louis, Minneapolis, Chicago, and Denver. The student body is around 12% students of color and international students, and we have an active, though small, GLBTQ community (the institution does not currently collect or publish data on sexual orientation). While I would guess that the campus is rather evenly split, in terms of Republican and Democratic students, I would also guess that most of our students are ‘‘Moderate,’’ or would claim to be, in their political beliefs. Because of our location in the capital, and because many of the students in the major are interested in law, and/or politics, a large cohort of our students have internships in government, social services, and law-related fields; an overlapping large cohort has summer or part-time jobs in law firms, or with political candidates and office holders. Classroom participant–observation research on issues of social justice is an important part of a growing literature on social justice and feminist pedagogies (Coffey & Delamont, 2000). The observations reported below are based upon my participant–observation in the four courses I taught in fall 2010 and spring 2011. As a professor in those courses, I had the chance to both raise the issues brought up in Varnum and the judicial retention election, and observe when and how students raised them. I was able, to a large degree, to set the agenda for our conversations; my teaching philosophy, however, is to let conversations unfold through minimal direction on my part – I facilitate our reading and discussion of the pieces we encounter. There was a tension, as I taught both the courses, and was aware of my on-going research for this essay, between my desire to lead the students to the conversations, and to watch them unfold – the more appropriate path, I think, both pedagogically and for the observation/research. In this way, my classroom observations are similar to the semi-structured, open-ended, in-depth interviewing I engage in, in my other areas of scholarly research; the relationships I forge with students are similar, as well, to the relationships of friendship and collegiality I strive to be a member of those other scholarly projects (Cramer, 2009). My practice was to be an ethnographer while in the classroom – simultaneously participating and teaching, while also bringing heightened awareness to observing particular aspects of classroom discourse. I wrote field notes after classes where we talked about Varnum and judicial retention, and I did engage in some follow-up conversations with students during office hours, over email, and in informal settings. All statements quoted below were statements made by students during

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these conversations, and in class; they are all direct quotes recorded in my field notes. In fall, 2010, I taught the senior seminar for the majors, focusing on ‘‘myths and narratives of law in our everyday.’’ One set of narratives we engage includes an examination of the discourses of judicial activism and restraint, and their relationship to ‘‘hyper-litigiousness’’ narratives about the American public. As we do each semester that I teach the course, we read the Gunther/Bickell exchange regarding judicial activism, as well as Tom Keck’s article on the activism of the Rehnquist court. And, among other readings, we engage Haltom and McCann’s DisTorting the Law, which helps students see, analyze, and apply ideas of media framing of judicial decisionmaking. Twenty students enrolled, and three wrote papers on the Varnum decision. The decision and the retention elections were often topics of conversation in that class. I also taught ‘‘Law and Social Change,’’ a requirement for sophomore and junior majors. The course enrolled 28, and we focused on key historical moments in the United States regarding litigation efforts and social change. We often discussed same-sex marriage during our studies on interracial marriage and the Loving case, and one group of eight students presented their final project on same-sex marriage in Iowa. In the spring, after the retention votes had already occurred, but during the time that the nominating commission did its work to replace the three ousted judges, I taught two special topics courses, neither of which was required for majors: Critical Race and Feminist Theory, and American Indian Law and Politics. Both enrolled 28 students. In the latter, we discussed individual tribal council actions to deny access to same-sex marriage. In the former, we often discussed the Varnum decision, same-sex marriage, and judicial retention – though we only had five readings from queer theory, and only one that spoke directly to judicial discourse and gay rights. In total, I taught 124 students over the course of the two semesters, and engaged all of them in discussion of same-sex marriage, proper judicial roles, and politics. This means I was able to directly observe the reactions of around 60% of our majors, as well as 10–15 nonmajors. There are limits to interpretive methodology, and this study is not exempt. Certainly, I can not claim that the views of the students I had in those four classes are representative of the wide diversity of viewpoints on these issues within the major, let alone the college or university. Nor can I say that what I observed is even more widely generalizable. And, I have no ‘‘control group’’ of, for instance, a class taught for only nonmajors, with no readings that deal with

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judicial activism. I also can’t know which of the students in my classes had also had introductory American politics classes, courses in rhetorical theory and criticism, or courses on judicial politics or jurisprudence. Certainly, many have had those courses, often as part of the legal studies major, but I cannot isolate their effects and impact. However, these observations, which I’ve ‘‘checked out’’ in informal conversation with several colleagues, do provide some basis from which to begin to understand how legal studies education enables students to have deeper conversations about judicial retention and role, than the general public.

Findings: Outrage Simply put, students were outraged by the judicial retention election, both for the fact that the election politicized judging, and because it was successful in removing the judges in question. This outrage was shared across the political spectrum, by students of every gender and sexual orientation identity, by avowedly atheist students, as well as by the Christian student who prostelized to me on her final exam; it was shared by sophomores, juniors, and seniors alike. They were angry about two things in particular. First, they were angry that the electorate in Iowa was responding to the cynical mobilization of a discourse of ‘‘judicial activism,’’ that they knew to be a red herring in the political debate. Reading about noncompliance with Brown v. Board of Education, and watching the Eyes on the Prize video segment regarding the Little Rock 9, students drew clear and immediate parallels. They heard ‘‘Gods Law’’ mobilized in both cases, and they heard rallying cries for ‘‘state’s rights,’’ made by ‘‘outside agitators,’’ against the ‘‘liberal, activist judiciary’’ in both instances. Students were angry that the voters in Iowa who voted against retention were allowing their views about same-sex marriage to influence their views about the legitimacy of judicial processes. They were upset at the extent to which outside money and influence was determining (even, perhaps, creating) the debate in Iowa. Second, they were angry that those voting not to retain were not acting rationally; those voters were not acting effectively to advance their stated political agenda of ending same-sex marriage in the state. As one student put it, ‘‘If they want to get rid of gay marriage, they need a constitutional amendment!’’ But, he continued, ‘‘they voted that down!’’ The students uniformly saw the vote as punishment and symbol, useless to creating the change the voters desired, while costing three good judges their jobs.

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This angered the students in my classes who were against same-sex marriage being legalized in the state; they saw the mobilization of voters against retention as a misuse of political capital and electoral power. Students against same-sex marriage legalization were in the minority in my classes (likely 10–15% total), but three were a vocal presence. All male, and self-identified as white, they relied primarily on their reading of the Bible, and the advice of their pastors, to argue that same-sex marriage was a moral and public health issue that the state had the power, under police powers doctrine, to regulate. They argued that same-sex marriage was different from interracial marriage, in that we know that race is a social construct and that the 14th Amendment’s equal protection clause was clearly violated by racial discrimination. They’d often appeal to Framer’s and legislative intent. While they disagreed politically and jurisprudentially with the Varnum decision, they felt that the electorate in Iowa was being misused; they argued that we should have been mobilized toward a constitutional amendment banning same-sex marriage, rather than punishing a few judges. They were angry about the retention vote because they felt as though it accomplished nothing toward getting rid of gay marriage in the state. The majority of students in my classes were in favor of same-sex marriage legalization. A small group of these were active Evangelical Christians (some Fundamentalist), from conservative congregations, who argued in favor of Varnum and retaining the judges because they did not believe their religious views should be imposed upon others, and they understood Varnum as opening a door to religious diversity. One of these students, a white male double-major with the History department, presented a three page bibliography of Biblical texts ‘‘against’’ ‘‘homosexual conduct,’’ and explained about hell and the backlash of a vengeful God. He wrapped up his presentation by citing Biblical passages enjoining citizens to respect the state, to follow its laws, and to pay regard to its elected and judicial authorities. The presentation closed with the student stating that while he knew same-sex conduct was impermissible, he also knew that the state and religion or private life were separate spheres in our constitutional system, and needed to retain that separation in order to keep the church, and private life, ‘‘pure.’’ He, and other speaking in this vein, felt that it would be wrong to use government to impose their moral views on those who had not yet ‘‘come to know Jesus, and the truth.’’ They also felt it would be Constitutionally wrong to deny equal protection and equal rights to people who did not share their religious views. They saw Varnum as a starting point for evangelizing conversations

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about moral conduct – not as a rallying cry for rights denial and judicial dismissal. However, those were only 3 or 4 students of 124, plus the 2 or 3 vocally opposed to same-sex marriage, and a population of students silent on the subject, some of whom must, I presume, have been opposed to same-sex marriage. At least 85% of the students in my courses in 2010/2011 were in favor of same-sex marriage, supported the Varnum decision, and were in favor of retaining the judges. Further, my observations indicate that a likely 50% of those 90 students were Republican of some variation (they were splitting rather evenly between traditional fiscal conservatives, social conservatives with more progressive views on environmental and gay issues [but still antichoice in terms of abortion], and libertarians). The other 45 students were Democrats of some variation (from less progressive, to more progressive, on a spectrum). The 85% of my students who supported samesex marriage and the Varnum decision – about 25 of whom were actively vocal in these courses and our conversations regarding judicial retention – were angered to be living in a state where the electorate would mobilize to punish judges for granting equal protection to all citizens seeking to marry; they were angered that the courts were being punished at all for making constitutional decisions; and they were especially angry to have judicial independence threatened through the mobilization of discourses of judging that denied the reality they understood: judges make policy, and ‘‘judicial activism’’ is a term often used to belittle the judicial expansion of rights to minority groups. These students read the structural implications of the vote with dismay – they understood its potential to negatively impact the exercise of judicial independence in Iowa, and the likelihood of increased politicization of the courts here. As the student whose quote gives this piece its title asked in exasperation about the non-retention voters, ‘‘Don’t they understand judicial independence?’’ I have had a long relationship with this student, having known her since her involvement in the introductory course in the major, which she took in fall of 2006. I recall that, four years ago, she was a strong student with solid writing and thinking skills. She wasn’t that nuanced in her thinking (most first year students aren’t), but she stood out as intelligent. I also remember, from that semester, this student’s participation in a series of classroom discussions on judicial activism. Mostly, I remember my frustration that she was parroting the politicized understanding of judicial activism that she had heard through her partisan commitments and affiliations; I recall thinking that she had very strongly held, but inconsistent, views. She was not, at the time, understanding the scholarly approach to the study of Supreme Court

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jurisprudence – and preferred to think and talk only about the ideological content of particular decisions. Four years intervened, and when she enrolled in the senior seminar with me, I noticed that her work was considerably stronger, her thinking more nuanced, and her writing even better. She had done a number of internships, and had solid work experience; she’d also taken a wide range of upper division courses in a variety of disciplines that contribute to the major. One day, after her outburst in class, asking ‘‘Are they idiots? Don’t they understand judicial independence?’’ she came to my office hours. We talked about the seminar’s coursework on the Rule of Law ‘‘versus’’ the Rule of Politics, and she again became very animated about the judicial elections in Iowa. She was angry about the vote, but mostly she was angry that people she agreed with in the Republican Party were using the language of ‘‘judicial activism’’ to recall the judges. After I listened to her, and we spoke for a while, I asked her if she would have seen things the same way four years ago, during her freshman year? She reflected for only a split second – then said ‘‘no.’’ She continued, ‘‘I would have been in favor of the vote, and against judicial activism. But I understand now that activism is a politicized term for what appellate judges do – and that decision is a proper aspect of their functioning.’’ While this is the (happy) story of one undergraduate gaining a more nuanced perspective on the judiciary, my experiences and observations show me that her shift in perspective is not unique. Rather, engagement in undergraduate legal studies has helped hundreds of students develop critical thinking and contextual perspectives, enabling them to better understand (and perhaps solve) some of the most pressing quandaries of our democracy.

THE IMPORTANCE OF UNDERGRADUATE LEGAL STUDIES, AND SOME CAUTIONS When Ethan Katsh, in the 1970s, asked several law professors to discuss what it would mean for legal education if undergraduate legal studies were taken seriously, he got answers that resonated with my own goals as an interdisciplinary legal studies educator, four decades later.22 Harold Berman, then Story Professor of Law at Harvard, wrote that ‘‘the most important reason for introducing a substantial program of legal studies into the liberal arts curriculum is to help effectuate a transformation of law school education itself’’ (Katsh, p. 94). Yet others argued that ‘‘the importance of undergraduate legal education has seemed most evident in

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the case of those students who are not planning to enter law school’’ (Katsh, p. 101, quoting David Cavers, Fessenden Professor Emeritus, Harvard Law School). I teach in an undergraduate legal studies program because I believe in the importance of such learning for students. My understandings about the role of legal education in the liberal arts were formed by my own undergraduate experiences, as well as by my reading of the work published by Austin Sarat in 2004 and 2005, regarding the importance of legal studies to liberal education. Introducing students to the study of legal texts and legal cultures is only one part of what I do. I also, in this program and in my classes, use legal studies to help them develop critical thinking skills, civic engagement, an understanding of (if not always appreciation for) social justice, and powerful, analytical writing. The majority of the students in this program enter college believing they are ‘‘pre-law.’’ In some regards, teaching undergraduate legal studies to and for them is important because it helps them clarify whether law school really is the best use of their time and talents. It is important for those who go on, because I believe it helps them be better law students – in terms of skills, but also in terms of attitudes and proclivities. However, undergraduate legal studies education is not pre-law education, and it is clear that declaring such a major seems to have no role in law school admissions (Pipkin). More so, undergraduate legal studies may actually be ‘‘anti-pre-law’’, as D’Errico et al., argue ‘‘precisely because of the openness of its curriculum to subversive literature’’ (D’Errico, Aarons, & Rifkin, 1976–1977, p. 21, note 15). Legal studies education is important for those students who do not become lawyers, because it introduces them to rights, liberties, and governmental powers, while demystifying legal processes and helping them form well-reasoned opinions about political life, and justice. As Arzt wrote in 1988 ‘‘all citizens in a democracy – not just the ‘elite’ who become lawyers – need a legal education in order to: know how to exercise their rights and responsibilities, understand issues of justice and policy, obedience and conscience, change and process’’ (p. 15). Peter Irons distinguishes between Marxist Legal Studies (primarily found in graduate programs, and class-based in analysis), Critical Legal Studies (primarily found in law schools, and, until interventions made by critical race and feminist theorists, primarily class-based in analysis), and Humanistic Legal Studies (HLS). He argues that HLS is an undergraduate, interdisciplinary undertaking. And, though I wouldn’t term what I do ‘‘humanistic,’’ I do agree with Irons’ that the impulse behind HLS, and my own perspective in teaching, is rooted ‘‘in the legal realist movement,’’ and

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that indeed it is a view of law as ‘‘a social institution embedded in a matrix of other social institutions y attentive to the legal ramifications of unequal social relationships, those of dominance and subordination’’ (Irons, p. 332). As D’Errico argues, humanistic legal studies ‘‘begins with a critique of legalism – the paradigm which defines the professional lawyer and excludes the mass of people affected by Law’’ (p. 18). A large part of the project of undergraduate legal studies, then, is to show students some of the ‘‘legal fictions’’ they participate in and hope for (Soifer, p. 876), and to help them understand how those fictions are created and maintained. All of my courses are, indeed, rooted in legal realism and a critique of legalism, though some are more explicitly so than others. For instance, I begin my course, Law and Social Change, by having my students read Elizabeth Mensch’s article ‘‘History of Mainstream Legal Consciousness.’’ We spend considerable time on the first sentence, which is one of my favorite sentences in all of academic writing: The most corrosive message of legal history is the message of contingency. (Mensch, p. 23)

We work through that sentence for nearly an entire class period – defining ‘‘corrosive,’’ unpacking ‘‘legal history’’ and its conventional meanings, and explaining ‘‘contingency.’’ I stress to them that Mensch writes that sentence with a smile, not a frown; I stress that her reading of legal history as not preordained, not the natural, predetermined, rational outcome of godlike processes, gives us openings in the legal and political opportunity structure, openings for intervention whenever we encounter contingency – or, as I call them, ‘‘happy accidents’’ we have the power to build upon. Throughout the semester, we look for those happy accidents, like the fact that Thurgood Marshall had friends and family in Missouri, which allowed the NAACP to litigate Missouri ex rel Gaines and achieve key doctrine prior to Brown. And we explore my thesis that if people of conscience are alert to those accidents, those openings, and ready to exploit them, the course of (legal) history can be changed. I think that a well-rounded liberal arts education, grounded in legal studies, gives students a unique advantage. Not only do they have analytic reading and writing skills, and critical thinking skills, but liberal arts legal studies education, when done well, allows for synthesis as well as deconstruction – it helps to create holistic thinkers, people who can pull back from analyzing discrete texts and moments and locate them at the intersections of several institutional, behavioral, and ideological contexts. One of the roles of law school and legal education is to give people the tools to act when they see an opening – I believe, firmly, that a legal studies

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education helps us to be alert to those openings – those contingencies – and more capable of acting on them in just and historically appropriate ways. In my Law and Social Change class, we focus quite a bit on the people litigating for social change. Most of the students who come to my class do so expecting to go into a conventional law practice; often they want to focus on business or agriculture law, sometimes I get a student who wants to be a sports agent, or specialize in intellectual property. They do not view law as a route to social change, and they are often surprised to find that there are legal professionals – cause lawyers and public interest lawyers – who do. I introduce them to the cause lawyering literature, and to Sarat and Scheingold’s argument that cause lawyers are both incredibly distinct from conventional lawyers practicing in the United States, and necessary for both the viability of that conventional practice, and for the continuance of our democratic processes. Students find the former claim interesting, the latter, they find challenging. In class, we talk about the fact that nearly 35% of entering law students state a desire to practice public interest law, but that by the time they leave law school only around 7% still have that goal. We discuss how the cost of the degree (and the mountain of debt), the hierarchization of the profession (and the lack of prestige for most cause lawyers), changes in the political climate over time, and the way law school teaches people to ‘‘think like a lawyer’’ all mitigate against careers in the public interest. And, it is here, midway through the semester, that I introduce students to my second favorite sentence in the sociolegal literature, written in Scheingold and Sarat’s book Something to Believe In: Those who successfully resist the corrosive effects of law school on cause lawyering aspirations combine cynicism about law with an intense personal idealism. (Scheingold & Sarat, p. 68)

This idealism is often rooted, according to the studies they cite, in religious, spiritual or ethical commitments, and/or in communities of practice. The cynicism – I think it is actually better termed ‘‘Critical Thinking’’ to signify the methods and modes of analysis gained by a deep steeping in a liberal arts, legal studies education – helps students be attuned to the contingent nature of law. It helps them, I argue, to pay attention to all of the details outside of the doctrinal that make cause lawyering such a vibrant part of our democratic processes. As a professor in an interdisciplinary legal studies program, that’s what I aim to give my students: a chance to explore contingency and thus gain critical capacity and a bit of idealism.

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In reflecting on the discourse we had surrounding same-sex marriage and the role of judging in American political and legal life, I realize that they have achieved half of this. In their arguments against the retention election, my students achieved a critical capacity. They were able to analyze the discourses of judging at play regarding same-sex marriage and the Varnum decision, and see them for what they were. They place increasing stock in the judiciary, and in independent judges’ abilities to make counter-cultural decision that protect minority rights. As Artz notes, her survey of undergraduate legal studies programs a the time showed that ‘‘many legal studies educators have emphasized the importance of correcting common student misperceptions about law and the legal system’’ (p. 15). Elsewhere, D’Errico elaborates: undergraduate students generally bring to their law study assumptions about the primacy of courts and trials, the omnipresence of fighting advocates of the Perry Mason type, the clarity and certainty of law, the limitations of police discretion by rules, the idea that juries inject emotions, ignorance, and their irrational elements into an otherwise rational system, the appropriateness of mystifying rather than popularizing legal process, and the individualization of essentially group problems by law, and so on. (p. 21)

A majority of the students I’ve encountered have certainly entered college with misperceptions about judicial independence and judicial activism. Through three or four years, it is clear to me that they’ve gained a perspective that values both as integral parts of a healthy democracy. However, many of those students also expressed, to my dismay, greater cynicism about and frustration with democratic processes in general. In these same classes, last year, while discussing the retention election, students argued that, ‘‘people should have to pass a civics test in order to be able to vote.’’ To their credit, they wanted to make the test available in a variety of languages – but students wanted only informed voters to be able to weigh in on what they considered important matters. They argued that the very old and the very young should not vote – they simply don’t care enough to educate themselves, and shouldn’t be allowed to ‘‘fuck it up’’ for the ‘‘rest of us.’’ The irony that these were 18–21 year olds making this argument did kick in, but they rallied by arguing that ‘‘everything’’ should ‘‘be 21’’ – military service; access to alcohol, gambling, cigarettes, and tattoos; age of consent for marriage; and right to vote. That they’d list the suffrage in with so many ‘‘vices’’ concerned me – but I did admit they had a certain logic, or at least a willingness to follow through. But this is troubling, of course! Hall and Aspin’s early work on judicial retention elections for trial court judges finds that ‘‘because voters in

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retention elections have little information on which to base their decisions, their level of trust in political institutions in the nation as a whole may be more important than characteristics of individual judges’’ (Hall & Aspin, p. 340). My students evinced a deep distrust of political institutions. Sadly, their distrust was only deepened by a discourse of and around judging that, to their ears, was ignorant and reactionary. They used that distrust to argue against political processes for retention and election, a position that seems to maintain the integrity of the judiciary; but their distrust stems at least in part from, and feeds back into, a powerful current of antidemocracy and antigovernment rhetoric operating in the contemporary national discourse. Even my most moderate students, at times, spoke the language of the Tea Party. My reflections on our classroom discourse this past year also make clear to me the potential power of legal studies education to maintain, if it is unacknowledged, the reified split between law and politics that sociolegal scholars since the Critical Legal Studies movement have been attempting to challenge. Half the battle is won: my students understand that law is ‘‘political.’’ However, they still privilege it as something somehow more pure, more interesting, and more important than democratic politics. Given that so many educators, myself included, defend legal studies as an integral part of a liberal arts education largely on the grounds that it contributes to the growth and development of ‘‘better’’ or more ‘‘engaged’’ citizens, this observation about their greater faith in legal processes, rather than political processes, troubles me. Clearly, the work ahead for legal studies lies in examining and deepening not only our discourses around judging, but our discourses supporting vibrant, informed, and justice-seeking politics.

NOTES 1. Judge Robert Hanson, of Polk County District Court, ruled in favor of Varnum et al., in August 2007. Two same-sex couples were married almost immediately (both by Unitarian-Universalist ministers, one in Des Moines the other in Ames), before Hanson stayed his ruling, pending Iowa State Supreme Court review. Hanson survived efforts to impeach him for that ruling, in 2007; he spoke on behalf of retaining the judges, in 2010. 2. Iowa Code 595.2(1). 3. This estimate is in the Varnum decision, which also estimates that one-third of those couples raise children together. 4. My son, four at the time, told his grandma that he had just been to his first wedding. She asked him what the bride wore. He looked confused for a moment, then answered, ‘‘Both Alan and Michael wore brown suits with pink ties.’’

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5. RayGun T-shirts is a Des Moines based company with a national clientele. Almost every halfway hip or trendy Iowan has at least one RayGun T. This T-shirt is a good example of their work, and a comment on the pride that segments of the Iowa population felt, in the Varnum decision. RayGun T-shirts – see http://raygunsite. com/shop/men/t-shirts-34?page¼2 6. Andrew Gelman, Jeffrey Lax, and Justin Phillips, ‘‘Over Time, a Gay Marriage Groundswell,’’ New York Times, August 21, 2010. 7. Vander Plaats is a social conservative from northwestern Iowa (Sioux City area). Buller’s analysis of newspaper editorial content shows, persuasively, that the retention election did not gain momentum until Vander Plaats loss in the GOP gubernatorial primary in June 2011 (Buller 2011, unpublished). 8. Judges on the Iowa State Supreme Court have staggered terms. The other judges signing the Varnum decision are David Wiggins (up for retention in 2012), Mark Cady, Daryl Hecht, and Brent Appel (who face retention elections in 2016). Shortly after his colleagues were voted off the bench, his remaining colleagues named Mark Cady the Chief Justice for the Iowa State Supreme Court. Mark Hanson, the Polk County trial judge whose decision was affirmed in Varnum, was retained by county voters during the same election, with 66% of the vote (see http:// www.desmoinesregister.com/article/20101103/NEWS09/11030390/Iowans-dismissthree-justices). In 2002, District Judge Jeffrey Neary, from the Sioux City area, granted a divorce to a same-sex couple, and barely survived a (non)retention vote (Sulzberger). 9. Important for advocates of merit selection is Hamilton’s Federalist 78, which note the tension between ‘‘two conflicting values – democratic accountability and judicial independence’’ and resolves those tensions ‘‘in the design of the national judiciary’’ (Caufield 2005, p. 626). But see also Burnett, who argues that the literature on judicial selection to date has focused on the tensions between independence and accountability while giving scant attention to ‘‘an essential feature of the third branch of government: impartiality’’ (Burnett, p. 266). 10. The ABA endorsed merit selection in 1937 (Caufield, 2007a, p. 170). 11. Personal communication with Rachel Caufield, Associate Professor of Politics at Drake University and Research Associate, American Judicature Society/Hunter Center for Judicial Selection. For full details regarding state-by-state judicial selection, see http://www.judicialselection.us/uploads/documents/Judicial_Selection_ Charts_1196376173077.pdf 12. Iowa Constitution, Article V, Sections 16–17. 13. Hall and Aspin’s data indicates that the nationwide retention rate is a 77.2% mean affirmative vote. Of the 1,864 trial court retention elections they studied, only 22 judges, nationwide, were defeated in their efforts to retain their seats (Hall & Aspin, p. 344). 14. See http://www.desmoinesregister.com/article/20101103/NEWS09/11030390/ Iowans-dismiss-three-justices 15. Witosky and Krogstad (2011) report that Gingrich donated $125,000 to the American Family Association’s efforts to defeat retention of the judges. 16. See http://www.judgebus.com for images of the bus, audio of the radio ad made by Steve King, and the video of the commercial paid for by Family Research Council.

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17. Television ads played throughout the Iowa market, purchased by several groups. The New York Times reported in September 2010 that the National Organization for Marriage had spent $230,000 on TV buys in the state (Sulzberger). 18. Buller cites Jason Hancock (November 18, 2010), ‘‘Anti-Gay Groups Spent $948,000 in Iowa to Oust Judges,’’ Iowa Independent for these numbers; Caufield is currently verifying those numbers, and undertaking scholarly analysis of the ad buys made by both sets of groups. 19. Buller has an as-yet-unpublished Law Review Note examining letters to the editor regarding judicial retention in Iowa; his content analysis and aggregate data is interesting and persuasive in its argument. On file with author; also available through SSRN. 20. I gratefully acknowledge that this preliminary data comes from personal communication with Rachel Caufield, whose work at AJS is aided by an outstanding graduate student, Mike Nelson. 21. See http://www.desmoinesregister.com/article/20101103/NEWS09/11030390/ Iowans-dismiss-three-justices. Preliminary poll numbers suggested this would be the case (Schulte, October 4, 2010). 22. I find it an interesting serendipity that the two main impulses behind this essay – gay liberation and legal studies education – have roots in the 1970s (the queer rights movement after Stonewall, and the legal studies forums coming out of UMass-Amherst).

ACKNOWLEDGMENTS I want to offer my thanks to Austin Sarat and the anonymous reviewers who provided feedback on this chapter. I have gratitude also, for Rachel Caufield, for sharing her expertise on judicial retention in general, and the Iowa situation in particular. And, thank you to Jeff Dudas for conversations that helped the paper take shape, as well as Claire Rassmussen and Bill Rose for scholarly encouragement. Most of all, thank you to my students, from whom I learn much, and with great enjoyment.

REFERENCES Arzt, D. (1988–1989). Too important to leave to the lawyers’: Undergraduate legal studies and its challenge to professional legal education. Nova Law Review, 13, 125–164. Bartrum, I. (2011). Constitutional rights and judicial independence: Lessons from Iowa. Unpublished paper, presented at Drake University Law School, on file with author. Buller, T. (2011). Framing the debate: Understanding Iowa’s 2010 judicial retention election through a content analysis of letters to the editor. Unpublished manuscript on file with author. Retrieved from http://ssrn.com/abstract¼1793313

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Burnett, D. L., Jr. (2007). A cancer on the republic: The assault upon impartiality of state courts and the challenge to judicial selection. Fordham Urban Law Journal, 34, 265–290. Cain, P. A. (2009). Contextualizing Varnum v Brien: A ‘‘moment’’ in history. Journal of Gender, Law, and Justice, 13(27), 1–37. Casey, L. (2011, January 10). Independent expenditure campaigns in Iowa topple three high court justices. National Institute for Money in State Politics. Retrieved from http://www. followthemoney.org/press/ReportView.phtml?r¼440 Caufield, R. (2005). In the wake of white: How states are responding to republican party of Minnesota v White and how judicial elections are changing. Akron Law Review, 38, 625–647. Caufield, R. (2007a). How the pickers pick: Finding a set of best practices for judicial nominating commissions. Fordham Urban Law Journal, 34, 163–203. Caufield, R. (2007b). Judicial elections: Today’s trends and tomorrow’s forecast. Judge’s Journal, 46, 6–11. Coffey, A., & Delamont, S. (2000). Feminism and the classroom teacher: Research, praxis, and pedagogy. London: Falmer Press. Cramer, R. (2009). Sharing in community while interviewing ‘outlaws’: Methodological challenges and opportunities. International Review of Qualitative Research, 1(4), 453–479. D’Errico, P., Aarons, S., & Rifkin, J. (1976–1977). Humanistic legal studies at the University of Massachusetts at Amherst. Journal of Legal Education, 28, 18–39. Hall, W. K., & Aspin, L. T. (1986). What twenty years of judicial retention elections have told us. Judicature, 70(6), 340–347. Hancock, J. (2010). Anti-gay groups spent $948,000 in Iowa to oust judges. The Iowa Independent, November 18. Irons, P. (1986). Humanistic legal studies. Legal Studies Forum, 10, 331–334. Katsh, E. (1976–1977). Introduction to comments section. Journal of Legal Education, 28, 93–102. Mensch, E. (1998). The history of mainstream legal thought. In D. Kairys (Ed.), The politics of law: A progressive critique (pp. 23–54). New York, NY: Basic Books. Nelson, J. (2010). Gay marriage judge denounces ouster effort. Waterloo-Cedar Falls Courier, September 22. Pederson, S., & Corning, J. (2010). There is bipartisan agreement for justice, not politics in Iowa. Telegraph Herald (Dubuque, IA), October 7, p. A4. Sarat, A. (2004). Legal scholarship in the liberal arts. Chronicle Review, September 3. Sarat, A. (2005). Law in the liberal arts. Ithaca, NY: Cornell University Press. Scheingold, S., & Sarat, A. (2004). Something to believe in: Politics, professionalism, and cause lawyering. Stanford: Stanford University Press. Schulte, G. (2010). Iowa poll: Retention of justices a toss-up. Des Moines Register, October 4, p. A1. Soifer, A. (1985–1986). Reviewing legal fictions. Georgia Law Review, 20, 871–916. Somashekhar, S. (2010). Iowa foes of same-sex marriage seek to oust judges who legalized it. The Washington Post, August 27, p. A06. Sulzberger, A. G. (2010). Voters moving to oust judges over decisions. The New York Times, September 25, p. A1.

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Turner, C. (2011, June 16). Judges: Special interests stripping judiciary of independence. Retrieved from http://www.mainjustice.com/2011/06/17/judges-special-interests-strippingjudiciary-of-independence/ Wiser, M. (2011). Bachmann stresses Iowa background. Globe Gazette, May 27. Retrieved from http://www.globegazette.com/news/iowa/article_6c135866-88b6-11e0-86b0-001cc4c03286. html Witosky, T., & Krogstad, J. M. (2011). Gingrich group gave to effort against justices. Des Moines Register, March 16, p. A1.

KENTUCKY’S CONSTITUTIONAL CRISIS AND THE MANY MEANINGS OF JUDICIAL INDEPENDENCE Emily Zackin ABSTRACT 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

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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.

INTRODUCTION American political history is replete with conflicts about judicial independence. The Supreme Court’s ruling in Marbury v. Madison, Franklin Roosevelt’s court packing plan, and the U.S. Senate’s refusal to confirm Robert Bork are just a few familiar examples of such controversies. One of the United States’ lesser-known, but most dramatic struggles about judicial independence occurred at the state level, in antebellum Kentucky. For three years, Kentucky’s government had two supreme courts, each of which claimed to be the only legitimate tribunal and insisted that the existence of its counterpart was completely unconstitutional. The struggle over which court should disband was so bitter and polarizing that many feared the conflict would result in violence. However, Kentucky reached a peaceful resolution to this constitutional crisis, and 20 years later, held a constitutional convention, which completely overhauled the state’s judicial structure. Under the new state constitution, Kentucky switched from an appointive to an elective judiciary. The state began to select all of its judges, and even its clerks, through popular election, and it forced sitting judges to stand for reelection at the end of each term in office. Judges on the state’s highest court would serve eight-year terms; six-years terms were given to circuit courts judges, and four-year terms to judges on county courts. Not only could a judge be removed at the end of each term in office through an election or in the middle of the term if he had committed an impeachable offense, but the constitution empowered a two-thirds majority of the legislature to remove any judge, even from the state’s highest court, at any time and for any reason at all. An observer familiar with the structure of the federal judiciary and immersed in twentieth- and twenty-first century scholarship about judicial independence in the United States would likely conclude that the architects of Kentucky’s antebellum court system privileged judicial accountability over judicial independence. However, in the context of real-life choices about institutional design, Kentuckians did not characterize their choices this way. While elements of their debates resemble elements of our own,

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most of Kentucky’s delegates did not describe judicial independence only (or even primarily) as the antithesis of political accountability, as modern scholars tend to. Nor did they imagine themselves to be seeking an institutional design that would strike the optimal balance between independence and restraint. Instead, they conveyed their hope that judges could be made accountable to ‘‘the people,’’ while simultaneously rendering the judiciary independent from other, less salutary, forms of politics. Unlike our own, this conception of judicial independence does not rely upon a stark theoretical distinction between the rule of law and the practice of politics. While we cannot infer the sincere beliefs of Kentucky’s delegates from their discourse alone, discourse is worthy of study in its own right, and is the subject of this essay. Perhaps the strongest claim for the importance of discourse is that the way we talk (publicly) about the world often structures our thinking, simultaneously rendering certain choices available to political actors and others unthinkable. Even if we reject this strong account, the study of political discourse nonetheless allows us to identify the logic by which political actors can legitimate their choices in the public debate. To be sure, the delegates’ statements may not reflect the delegates’ sincere beliefs or preferences. However, while they may secretly have had other reasons for their preferences about judicial design, their conversation reveals which historical narratives and political ideas were available to Kentucky’s delegates as they sought justify their choices. Juxtaposed with our own, their conversations about institutional design reveal a remarkably different conception of the relationship between the judiciary and the polity. This chapter first describes the current scholarly consensus, especially among those focused on the current U.S. system that judicial independence and accountability exist at opposite ends of a single continuum. It then offers a brief account of Kentucky’s constitutional crisis, followed by a closer look at the convention that overhauled the state’s judicial branch. It describes the delegates’ debates about a number of structural choices: how judges would be removed from office, how they would be selected, what terms of office they would serve, and what material resources the court would require to maintain its independence. Informed by a very different historical experience and political context, most delegates did not define judicial independence in opposition to political accountability. Instead, they presented independence and accountability as entirely compatible, and even mutually reenforcing. Consequently, they did not seek to render judges above or beyond all political pressure, but to craft an institution that would keep them independent from other branches, partisan power, and

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elite influence while rendering them sufficiently responsive to ‘‘the people.’’ Often both sides of debates about particular institutional choices differed primarily in their claims about how those choices would facilitate a simultaneously independent and accountable judiciary. As a result, antebellum Kentucky’s conversation about the design of its judicial branch recovers for us the possibility that judicial independence may mean something other than insulation from politics.

THE CONTINUUM FRAMEWORK OF JUDICIAL INDEPENDENCE Recent scholarship in and about the United States typically defines the term ‘‘judicial independence’’ in opposition to ‘‘judicial accountability,’’ or what is sometimes called ‘‘judicial responsibility’’ (Burbank, 2003). Judicial independence and accountability are generally imagined as opposite ends of the same scale; the more independent a judiciary is, the less accountable it must be, and vice versa. In other words, judicial accountability increases only at the cost of judicial independence, and independence is defined by a relative lack of accountability. As one state judge has explained: ‘‘accountability is the antithesis of independence’’ (Zobel, 2001, p. 5). We come away from this literature with the sense that judicial institutions fall somewhere along an independence – accountability scale, and we consequently talk about degrees or levels of independence in inverse relationship to accountability. Of course, to say that accountability is the relative lack of independence and independence the relative lack of accountability leaves many open questions about the meaning of these terms. To what or whom might a judiciary be accountable, and what would that even mean? From what or whom might a judge be independent, and what would such independence entail? Broadly speaking, however, independence is generally understood as insulation from political, as opposed to legitimately legal, pressure, and accountability is understood as exposure to such inappropriate influences. Of course, the question of what distinguishes appropriate legal pressures from inappropriate political influence is an extremely thorny one. Thus, even within the recent literature on judging, it is possible to find a variety of answers to these questions (Kornhauser, 2002). Despite the variety of opinions about the distinction between law and politics, however, there is nonetheless a general consensus that more judicial independence requires

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less responsiveness to political pressure in order to protect some notion of legal decision-making that can be meaningfully distinguished from the political realm. Most writing about judicial independence then focuses on formal institutional structures as the mechanisms that render judiciaries more or less accountable, which is to say more or less exposed to political pressure. Thus, it is customary to describe judicial independence as ‘‘a feature of the institutional setting within which judging takes place’’ (Ferejohn, 1999, p. 353). Particular choices about the design of institutions are typically understood to correspond to increased or decreased levels of accountability. For example, judicial elections are widely said to render judges more accountable to political pressure (and therefore less independent). Similarly, lifetime terms of office are often believed to insulate judges from political pressure, rendering them more independent (and therefore less accountable). Indeed, the structural mechanisms that correspond to judicial independence are so closely associated with the concept that social scientists who attempt to measure the independence of a court often do this simply by noting the presence or absence of particular institutional structures (e.g., see La Porta, Lo´pez-de-Silanes, Pop-Eleches, & Shleifer, 2004). Normative claims on behalf of highly independent judiciaries frequently portray courts as anti-majoritarian defenders of minority rights. They then explain that courts must be insulated from political pressures, even popular preferences, if they are to defend the legal rights of unpopular minorities (see, e.g., Croley, 1995; Geyh, 2008). Yet they also worry that too much judicial independence must undermine democratic self-governance.1 Constitutional theorists have spilled vast quantities of ink describing, attempting to resolve, and contesting what seems to be an inherent tension between the practice of judicial review and majoritarian democracy (Bickel, 1962; Eisgruber, 2001; Ely, 1980; Graber, 1993), and those who focus on institutional design regularly emphasize the need to structure institutions that will strike the optimal balance between judicial accountability and independence. Indeed, this literature frequently suggests that designing the judicial branch of a democratic government is, at its core, a balancing act (e.g., Garoupa & Ginsburg, 2009; Levinson, 2006). It is thus particularly interesting that the delegates to Kentucky’s constitutional convention of 1849 do not seem to have understood their work in this way. As we will see, they described their project not as a balancing act, but as an attempt to maximize both judicial accountability and judicial independence simultaneously.

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A CRISIS AND A CONVENTION During an economic boom in 1818, the Kentucky legislature chartered 46 independent banks, rendering credit widely available and speculation on land a common practice. By Spring of 1819, however, the boom had become a bust. The entire United States entered a major economic depression, but Kentucky was particularly hard hit. Produce prices dropped by 50 percent, from their high in 1817 (Formisano, 2008, p. 74), and land prices decreased to one-sixth of their boom-market value (Clark, 1988, p. 141). This dramatic deflation was particularly devastating to Kentucky’s many debtors, and as available credit constricted, they found themselves in serious economic distress. Kentucky’s homesteads had been so heavily mortgaged that, in only two years, the courts conveyed to banks and other creditors over a third of Kentucky’s real property. The Second Bank of the United States became the largest real estate owner in the state capital, and throughout the state, Sheriffs seized debtors’ mortgaged properties and forced their sale (to repay creditors) at a fraction of their former value (Formisano, 2008, pp. 74–75). By the 1820s, Kentucky’s distressed debtors comprised a large and vocal group of the state’s electorate, one that transcended both class and occupational boundaries. Consequently, Kentucky politics was characterized by a pervasive anti-banking sentiment, and the legislature was consistently flooded with petitions for debt relief. Barred from taxing the National Bank out of existence by the recent Supreme Court decision in McCullough v. Maryland, the state legislature revoked every banking charter, except for the Bank of Kentucky’s (Clark, 1988, p. 142), and in 1820, it chartered a new bank, called the Bank of Commonwealth, and authorized it to loan up to $1,000 to an individual Kentuckian for the repayment of ‘‘just debts.’’ When the Bank of Kentucky began to foreclose on its mortgages, the legislature retaliated by dismissing its directors in 1821 (Clark, 1988, p. 143), and then revoking its charter in 1822 (Harrison & Klotter, 1997, p. 110). What turned out to be the legislature’s most controversial response to the financial crisis, however, was the debt-relief law that it passed in December of 1819, and modified in 1820. In its final version, the law stated that, when a judgment was issued against a debtor, creditors must either accept repayment with (badly depreciated) notes from one of Kentucky’s two state banks, or accept a delay in repayment. A debtor could delay repayment for three months if the creditor accepted notes from the Bank of Commonwealth or one year if plaintiff accepted only notes from Bank of Kentucky.

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If creditors refused to accept notes from either bank, repayment on a debt could be legally delayed for two full years (Harrison & Klotter, 1997, p. 110). Creditors soon began to question the constitutionality of this debt-relief law, and the resulting cases worked their way up through Kentucky’s court system. All of the courts (and even all of the judges) that heard these cases agreed that the debt-relief law was unconstitutional, and in 1823, the state’s highest court nullified the debt-relief law as a violation of both the federal and state constitutions (Ireland, 1999, p. 6). The state legislature’s response was rapid and fierce. In 1824, the legislature decided to ‘‘reorganize’’ the state’s highest court. Through a vote of 54 to 43, it repealed the statute under which the state’s highest court had been organized, and passed a new statute, creating an entirely new court. The old court promptly deemed this legislative action to be another violation of the state’s constitution, and it refused to disband or deliver its records to the new court. In response, the clerk of the new court staged a robbery, actually breaking-in to the offices of the old court to acquire them. For three years, both courts remained in operation, each refusing to acknowledge the legitimacy of the other. This crisis polarized the state’s electorate, which rapidly divided into an ‘‘old-court’’ and ‘‘new-court’’ party, whose leaders hurled invectives at one another. One contemporary observer noted that ‘‘no popular controversy, waged without bloodshed was ever more absorbing and acrimonious than that rage which, like a hurricane, swept over Kentucky’’ (cited in Harrison & Klotter, 1997, p. 110). Indeed, it seemed entirely possible that constitutional crisis might result in armed conflict. As the state’s economic situation improved, however, calls for debt relief grew quieter, and in 1826, when the old-court party regained control of the legislature and abolished the new court, the conflict rapidly subsided. In the midst of Kentucky’s constitutional crisis, the anti-relief (old-court) party managed to defeat calls for an immediate constitutional convention that would overhaul the design of the state’s judiciary. In the years that followed the crisis, however, dissatisfaction with the state’s rather rigid constitution mounted, and demands for constitutional reform became a regular feature of the state’s politics. By 1848, the call for a constitutional convention gained enough momentum to succeed.2 Desire for a convention cut across both the Whig and Democratic parties, and was apparently motivated by a variety of grievances, including those related to the structure of the state’s judiciary, the legislature’s irresponsible fiscal policies, and the state’s lack of public education. Abolitionists also hoped to use the convention to further their cause. Candidates to serve at the convention ran

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under the banner of the state’s two major parties, and were elected by geographic district. Democrats gained 52 of the 100 seats, and most of the delegates were either lawyers or farmers (Harrison & Klotter, 1997, p. 117). The convention devoted several weeks to designing (and debating) the structure of the judiciary. Unsurprisingly, delegates repeatedly referred to the recent tumult over the judiciary and often noted that the state’s constitutional crisis had taught them important lessons about judicial independence. Yet, the lesson many of them described was not the one we might expect. In the wake of an unprecedented attack upon the state’s highest court, the delegates to Kentucky’s constitutional convention expressed the desire to render the judiciary less, not more, insulated from popular sentiment. The state’s legislature had very nearly removed the entire court only two decades before, and all agreed that a recurrence of that situation should be prevented. Yet they did not attempt to stave off another attack by building defensive walls between the court and the public. Instead, they used the constitutional crisis to argue that the judiciary should be better connected to the people. Delegates who had been on both sides of the contest between the old and new courts recounted the horrible situation in which debtors had found themselves, and described the apparent and destructive insensitivity that the court had displayed in response. For instance, one delegate, Ben Hardin recalled: Constables and sheriffs were going from place to place through the land y . Sir, there was a parcel of merciless speculators following the sheriffs and constables of the country, like carrion crows, buzzards, and vultures, following a marching and fighting army to prey upon the bodies slain in battle, or those who might die by disease, and the people were goaded on to madness. (Kentucky Constitutional Convention, 1849, p. 203)

He explained that if a similar situation ever recurred, he would prefer to see the people rein in the state’s highest court, than to allow it to establish the impossibility of debt relief as a constitutional principle.3 Many delegates declared that, going forward, the judiciary should be far more responsive (some even said subservient) to the people. The state’s particular past clearly informed the convention’s plan to render the judiciary more accountable to ‘‘the people.’’ In addition, the national political environment exerted just as clear an influence. With only a few exceptions, the delegates to the constitutional convention described their desire to reform the state’s governing institutions by rendering them as responsive as possible to ‘‘the people.’’4 The delegates repeatedly declared that the science of government was ever improving, and that they were in a position to endow the state with the most up-to-date and democratic

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institutional designs. They intended, therefore, to build a government, including a judiciary, that would express the people’s will and display the people’s wisdom and integrity better than any that had come before. This particular expression of what James Morone has termed ‘‘the democratic wish’’ was a defining feature of the Jacksonian era, not just in Kentucky, but in the nation as a whole. The delegates’ frequent allusions to the ‘‘the people’’ and their insistence on a common good that the people would further if only they were allowed to participate more directly in their own governance typified the rhetoric and ideas that characterized the national political scene at the time of the convention (Morone, 1990). As we will see, many of the delegates to Kentucky’s 1849 convention expressed the hope that each of the convention’s structural choices would render the judiciary more accountable to the people.

JUDICIAL INDEPENDENCE AND REMOVING JUDGES One of the first major questions that the convention debated with respect to the structure of the state’s judiciary was the mechanism through which sitting judges would/could be removed from office in the middle of a term. The existing state constitution allowed for the removal of judges through impeachment, and also by a mechanism known as legislative address. The system of legislative address was a remnant of the English law, which allowed kings to address, or remove, judges from office with the consent of the parliament. Kentucky’s constitution allowed the legislature to remove judges from office through a two-thirds vote, even in the absence of an impeachable offense. Several delegates argued that these provisions had not been successful in securing judicial accountability, and should be modified to make it even easier for the legislature to remove a judge. The state’s recent constitutional crisis figured prominently in the convention debate about the removal of judges. In particular, the legislature’s unsuccessful attempt to remove a county judge who had ruled the debt-relief law unconstitutional convinced several delegates that it must be made easier to remove a judge from office. In 1822, Judge James Clark had been the first to rule the debt-relief law unconstitutional. This ruling, by a mere county court judge, outraged the advocates of debt-relief, and those in the legislature who had labored to pass the law called Clark in front of the legislature to justify his ruling. After Clark’s testimony, the debt-relief

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advocates, who had the majority of the legislature, sought to force Clark out of office through their power of address. However, they found themselves unable to muster the super-majority required to evict him. The legislature also failed to address any members of the state’s highest court out of office after it upheld Judge Clark’s ruling (Clark, 1988, pp. 143–144). In light of these (non-)events, several delegates proposed that, under the new constitution, the legislature should be empowered to remove a judge, even from the constitutional court, for any reason through the vote of a bare majority, rather than a two-thirds majority. They reasoned that if the legislature had been unable to remove a judge even after he had handed down such a resolutely unpopular decision, then surely, experience demonstrated that the two-thirds requirement was simply too demanding to be of any practical use. Hardin, who had previously reminded the convention about the horrors of the debt crisis, called the current system ‘‘as perfect a mockery as can be imagined’’ (Kentucky Constitutional Convention, 1849, p. 149), and another delegate, Ira Root, echoed this sentiment: The two thirds principle is the identical principle, about which the public mind in Kentucky was awakened to a sense of the iniquitous system that was resting upon us y we have the lights of past history before us to show that in all times, and particularly in Kentucky, for the last fifty years, the time has not been when a solitary judge, or magistrate, or any other individual holding office, could be brought before the legislature with any probability of his being removed from office for any cause whatever. (Kentucky Constitutional Convention, 1849, p. 174)

One interpretation of the state’s recent constitutional crisis, then, was that it demonstrated the need to do away with the requirement for a supermajoritarian vote if the judiciary was really going to be made accountable to the people. As the people’s elected representatives, they explained, the legislature’s relationship to the people gave that body the best possible claim to hold judges accountable to popular sentiment.5 As we might expect, the delegates who opposed the plan argued the proposal to allow a bare majority of the legislature to address a judge out of office would severely compromise the judiciary’s independence. However, it is important to note that they did not claim that the judiciary needed to be defended from the people or the political pressure that they might exert. In fact, the delegates who opposed the plan also emphasized that the judiciary should be accountable to the people. At the same time, they insisted that the courts must remain independent of the legislature, and argued that if a bare majority of the legislature could remove a judge from office, this legislative power would render the judiciary totally dependent upon the legislature itself. These delegates also pointed to the state’s constitutional crisis, and

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insisted that its lesson was that, if the judiciary were effectively unable to declare a statute unconstitutional, for fear of removal at the hands of the legislature which had passed that statute, it would become totally subservient to the legislature.6 The majority of speakers on this question urged the convention to distinguish between the legislature and the people. For instance, William Bullit declared ‘‘I am not for giving the legislature that power in the name of the people. Sir, the legislature is not the people’’ (Kentucky Constitutional Convention, 1849, p. 154). Charles A. Wickliffe agreed, painting a particularly vivid picture of the destruction of the judiciary’s independence at the hands of the legislature: In party times when passion guides the popular leaders, when reason is silenced and argument is hushed by the conflict of selfish motives, the prostration of the independence of the judiciary department of your government is no difficult task. The legislature assume to be the people, forget their true position, and rush with accumulated rage upon their work of destruction y . If you leave the removal of a judge to the will of a majority of the popular branch of the government, what judge will dare to stand between the encroachments of the legislative department and the citizen? You make him the miserable, suppliant tool of legislative power and wrong y whose acts he will never have the boldness and independence to declare unconstitutional y let us not deceive ourselves by name. The majority of the legislature is not a majority of the people. (Kentucky Constitutional Convention, 1849, p. 150)

Here, Wickliffe explained that judicial independence was necessary to allow the judiciary to serve the people by protecting them from the legislature. His fear was not that a majoritarian faction would oppress a minority of the people, but that the legislature would threaten the people’s single, common good or encroach upon the people’s shared rights. On his account, therefore, the judiciary did not require independence from all popular influence to do its job, it simply required independence from the legislature. He also explained that it was the legislature’s partisan divisions that would prevent it from speaking in the people’s voice. This fear that partisanship would mask or pervert the true will of the people was a recurring theme in the convention’s discussions of judicial structure. For instance, Richard Mayes, like Wickliffe, expressed the conviction that political parties within the legislature would pose a threat to judicial independence: We may felicitate ourselves that one party in power will not remove from office those opposed to that party, but every day’s experience proves to us that when one party is in power, those in office, holding different politics, must give way. Give the legislature the power to remove the judges, and I care not whether the Whig or Democratic party is in

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Political parties, Mayes explained here, would promote their own, competing interests, even at the expense of the people. As a consequence of this legislative tendency to fracture into self-interested parties, many delegates urged the convention not to confuse the legislature with the people. To be sure, several delegates did object to empowering the legislature on the grounds that it would destroy the court’s counter-majoritarian function.7 However, the convention’s debate about judicial removal did not hinge only, or even primarily, on the degree to which courts should be shielded from public outrage so that they might better protect minority rights. Instead, one side argued that a majority of the legislature could effectively represent ‘‘the people’s’’ will, while delegates on the other side of the question insisted that legislators would act in the interests of their own parties, and that the judiciary must be rendered independent of the legislature so that it could protect the people from it. The constitutional convention was thus arguing about which forms of politics would harm the judiciary, not about which degree of political pressure was optimal.

JUDICIAL INDEPENDENCE AND ELECTIONS In addition to specifying mechanisms for judicial removal, the delegates to Kentucky’s constitutional convention had to design a mode of judicial selection. They understood this decision as another structural choice that would affect the judiciary’s independence. So does the modern scholarly literature about judicial independence (not to mention every elementary textbook about American government). Federal judges, including Supreme Court justices, are appointed, rather than elected, and while the appointments process provides a link between the public and the judiciary, in the form of the elected representatives who participate in it, the appointments process also serves to insulate judges from electoral majorities and public pressures. Steeped from childhood in this reasoning, it seems almost unimaginable that the delegates to Kentucky’s constitutional convention could have adopted judicial elections for purposes of creating, rather than destroying, an independent judiciary. Several delegates to Kentucky’s constitutional convention do seem to have held the familiar position that elected judges would necessarily lose

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independence. For instance, William Mitchell asked whether there was any chance that elections would produce an honest and impartial judiciary, and answered his own question with the particularly colorful declaration that ‘‘You might as soon expect to find chastity in a brothel’’ (Kentucky Constitutional Convention, 1849, p. 254). While this conviction that elections compromise judging is familiar from our modern conversation, the proponents of judicial elections did not echo modern tropes. Instead, they argued that elections would make judges more, not less independent. Indeed, the broad consensus at the constitutional convention was that judicial elections would endow the judiciary with independence by making judges more accountable to the people. While this formulation seems totally counterintuitive from the perspective of the modern discourse about judicial independence (and perhaps the modern practice of judicial elections), it would not have seemed at all strange to contemporaneous observers. In fact, after New York State adopted judicial elections in 1846, a movement to transform appointive judiciaries into elective ones swept the nation. Between 1846 and 1851, twelve states, including Kentucky, began to elect all of their judges and five states began to elect some of them (Shugerman, 2010, p. 1097). As Jed Shugerman has documented in his remarkable study of this national movement for judicial reform, proponents of elective judiciaries widely described elections as a means of increasing courts’ independence and bolstering their willingness to declare legislation unconstitutional (Shugerman, 2010, pp. 1098–1099).8 In keeping with the reform movement of the period, many delegates to Kentucky’s 1849 convention argued that elected judges would be more independent than appointed judges had been. They reasoned that if judges held their offices as a result of popular confidence in their judgment, and not as a result of gubernatorial favor, judges would have a clearer popular mandate to check the other branches of government. One delegate, Silas Woodson, explained that he desired ‘‘to strengthen the judiciary by taking from them the suspicion that they owe their stations to executive favor, or to the influence of great men, or to party considerations.’’ He predicted that ‘‘with the warrant of the people, and sustained by their suffrages, [judges] will have a strength and popularity that they have not hitherto possessed’’ (Kentucky Constitutional Convention, 1849, p. 270). On this account, elections do not constrain or sully courts, but liberate them from the shadow of patronage and corruption. While governors had every reason to want judges of their own party, delegates argued, the majority of the state’s voters might well put the good

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of the state, and thereby elevate the judicial branch, above partisan considerations. James Guthrie explained that, because the governor was responsible for appointing the state’s judges, ‘‘[judicial] offices have not been bestowed upon those best qualified to discharge the duties. The offices have been conferred upon family connexions, the favorites of cliques and mere partisans’’ (Kentucky Constitutional Convention, 1849, p. 268). Elections, he argued, would free the judiciary from these shadowy, partisan maneuvers. Acknowledging that there were those among Kentucky’s electorate who might be manipulated in the electoral process, Francis Bristow insisted that ‘‘the yeomanry of Kentucky, the great body of them, are practical and sensible men, and that when they go into an election it is with a sense of the great responsibility that rests upon them, and that they would vote with an eye single to the prosperity and happiness of the country’’ (Kentucky Constitutional Convention, 1849, p. 273). Unlike the governor, Kentucky’s voters could be trusted to select the state’s judges without reference to self-interested or partisan motives. Reformers argued that, not only would judicial elections render the judiciary independent of the other branches and partisan influence, but they would also liberate the judiciary from the wealthy classes that had hitherto dominated it. Under the reformers’ proposal for an elective judiciary, even the court clerks would be elected so that the people could also extricate these offices from the grasp of elites, and open them to the common man. Several delegates even opposed the creation of eligibility requirements that would restrict candidacy for judicial office to lawyers who had been practicing a certain number of years, and restrict candidacy for the office of clerk to those who had first apprenticed in the trade for at least two years.9 For instance, one reported that ‘‘he did not consider this training necessary,’’ and declared that it was ‘‘the last dying kick of aristocracy which they were about to see in this hall.’’ He explained that he had come to the convention with the goal of ‘‘taking care of the interest of the farmer, on which the whole world depended. He wanted no restriction laid upon that class who supported the balance of the community’’ (Kentucky Constitutional Convention, 1849, p. 297). The delegates who opposed the establishment of an elective judiciary agreed that the convention should wrest the state’s judiciary from dependence upon the powerful and privileged. However, they insisted that elections would render judges more, not less, influenced by powerful political actors, and particularly by political parties. A particularly vocal opponent of the plan to elect judges explained that political parties would do anything necessary to place their own members in elected office, and that

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he had witnessed parties supplying alcohol and entertainment to huge groups of men in exchange for their votes, even buying votes in public places. He predicted that upon the adoption of an elective judiciary, ‘‘You will see your partisan leaders – your high priests of Democracy and Whigism – passing their slogan and their war cry, their henchmen and followers calling out their forces and preparing for the conflict, and making every appliance that can be devised for the purpose of accomplishing their ends’’ (Kentucky Constitutional Convention, 1849, p. 254). Electoral politics was well-equipped to serve the needs of parties, he feared, but poorly equipped to discern the will of the people. This objection to an elective judiciary did not envision the will of the people as a threat to judicial independence, it simply argued that elections reflected the will of party leaders, not the people’s judgment. Most of the convention’s delegates did not imagine judicial independence to require that they remove the judiciary from politics in general, but from partisan politics in particular. The convention appears to have been in wide agreement that partisanship posed a serious threat to judicial independence, and the fight about judicial selection seems to have hinged on the question of whether an elected or appointed judiciary would be more susceptible to the machinations of political parties. Even those who had argued on behalf of judicial elections agreed that partisanship posed a threat to judicial independence, and thus insisted that the people could be distinguished from the parties even during elections.10 Consequently, they argued that elected judges would be more independent described elections as genuine expressions of the people’s informed political judgments and predicted that such judgments would endow courts with the independent authority to check the legislative and executive branches. Those who opposed an elective judiciary described elections as maelstroms of self-interested competition between parties that would subsume the judiciary and render it dependent upon party leaders, rather than upon the people. Without any knowledge about the public justifications for Kentucky’s decision to elect its judges, it would be very difficult to correctly interpret this judicial structure. Indeed, through the lens of modern scholarship, Kentucky’s convention appears to have privileged judicial accountability over independence. However, as Jed Shugerman’s study so ably demonstrates, judicial elections of the period were widely justified as a mechanism to facilitate, rather than hinder, judicial independence. Perhaps as a result of this different understanding, these elections actually seem to have promoted the active exercise of judicial review. Clearly, then, the same institutional structures may be associated with very different kinds of judicial behavior in

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different times and places. While twenty-first century elections are widely believed to curb state courts, elected state judges in the nineteenth century were actually more willing to declare statutes unconstitutional than their appointed predecessors had been (Shugerman, 2010).

JUDICIAL INDEPENDENCE AND TERMS OF OFFICE Judicial elections were so popular among Kentuckians during the state’s 1849 convention that most of its delegates declared themselves obligated to support an elective judiciary. Rather than criticizing the plan to elect judges, therefore, several delegates endorsed elections as a method of original selection, but opposed the requirement that sitting judges face reelection. In other words, most delegates’ reservations about judicial elections seem to have coalesced around the question of judicial terms in office. Those most sanguine about the prospect of electing judges argued for six- or eight-year terms after which judges would face reelection, while those with greater doubts about judicial elections proposed to shield sitting judges from electoral pressures, through either life tenure or by limiting them to a single term in office. This debate over term limits more closely resembles the modern, scholarly literature about judicial independence than any we have thus far examined. Several delegates expressed the fear that forcing a sitting judge to run for reelection in order to remain in office would corrupt the process of judging, encouraging judges to decide cases with an eye toward their own popularity, at the expense of fair and impartial legal rulings. One delegate, William Johnson, asked the convention whether any of them would really feel comfortable with a judiciary that adopted this mode of judicial decisionmaking: Sir, ought our judicial bench to seek instruction from the people? Ought they not rather to administer the laws of the land uninfluenced by approaching election? y There is a deep necessity that the judges should be removed from all improper influences, and from the tendency to court popular applause, to which a reelection would subject them. (Kentucky Constitutional Convention, 1849, p. 227)11

He went on to explain that the judiciary’s independence would certainly evaporate if judges were forced to court popular favor in this way. Here, Johnson does seem to be describing the same inherent contradiction between responsiveness to public opinion and judicial independence that defines the modern understanding of these terms.

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Several others delegates also argued that popular opinion about the outcome of a case was, at least sometimes, simply at odds with the content of constitutional law. They explained that in such cases, a court, particularly the state’s highest court, must be free to side with law and against public sentiment. It was not only the state’s past constitutional crisis that brought this lesson so powerfully home to delegates, but also the looming national crisis about the legality of slavery. In fact, the divisive nature of the conflict over abolition pervaded the entire constitutional convention. Slave owners had been afraid to hold the convention at all, for fear that abolitionists could use the process of constitutional revision to abolish slavery in the state, and many delegates carefully examined every proposition to ensure that it could, at no future time, be used to emancipate the enslaved people of Kentucky, lest popular opinion shift toward abolition (Clark, 1988, p. 308). In giving an example of the need for a judiciary that would side with the constitution over a popular policy, Mitchell asked the convention to imagine that the people of the state were widely persuaded to emancipate slaves without compensating those who had owned them. If such a policy violated explicit constitutional mandates to the contrary, he declared, he hoped that ‘‘a judiciary able, understanding the principles of the constitution, impartial, independent, would rise above the raging storm and would not allow this great principle in the constitution to be violated, that the people of the state of Kentucky cannot wrest from any man his property, without just compensation being made him’’ (Kentucky Constitutional Convention, 1849, p. 251). This statement was a clear defense of judicial independence from public opinion on behalf of minority rights, but the minority in question was the state’s slaveholding class. This imagined role for the state’s court was obviously different from the defense of marginalized people that the modern scholarship often describes as the end for which societies must protect judicial independence. Other delegates saw the problem with judicial reelection, not as a threat to minoritarian rights, but as a threat to the rights of the poor. They noted that there is not only electoral power in numbers, but also in wealth, and argued that in anticipating the need to run for reelection, sitting judges would be inclined to defer to the most wealthy and powerful citizens when deciding cases.12 Because judges forced to stand for reelection would be so badly tempted to side with those best able to facilitate their reelection, one delegate argued that forcing judges to stand for reelection would create, at the very least, the appearance of impropriety each time a judge decided a case in favor of a wealthy litigant or of his entire class.13 Like the concern about minoritarian rights, this objection to judicial (re)elections also seems

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to echo the modern conviction that accountability to public opinion poses an inherent threat to judicial independence and the rule of law. The claims of the delegates who opposed subjecting sitting judges to electoral competition resonate with modern discussions of judicial independence. However, the arguments of those who favored this system do not. These delegates reiterated their position that elections, even reelections, would only make judges better at their jobs. The president of the convention, James Guthrie, explained it this way, ‘‘the reward the people are to bestow after [a judge] has served his term, when he and his friends may be greeted with the proud certificate that a reelection will give him, for the able and efficient manner in which he has discharged the duties of his trust, will give to the officer a stimulus to increase his intelligence, to guard his integrity and his impartiality in the distribution of the public justice of the country’’ (Kentucky Constitutional Convention, 1849, p. 158). Similarly John Taylor praised public opinion as a wise teacher of public officials: ‘‘What is this thing called public opinion? – Sir, it is the school master of public men. It is the originator, frequently, of some wise and salutary public measures y . I am in favor of an elective judiciary, the officers of which shall be, every eight years, submitted to the salutary operation of public opinion’’ (Kentucky Constitutional Convention, 1849, p. 189). The champions of judicial elections explained that, just as the people were qualified to select good judges, they were similarly qualified to determine whether a judge had successfully maintained his independence from the other branches and from particularly influential men.14 Rather than emphasizing (or even acknowledging) divisions of opinion and interest among the citizenry, they insisted that a unified electorate would further its shared desire for independent judges. For instance, Richard Apperson argued that ‘‘[the judge] is to return again to the appointing power – the people, who are the sources of all power, and if he has not acted properly, if he has been corrupt in any way, or discharged his duties in a partial manner, I ask you if he will be re-elected?’’ (Kentucky Constitutional Convention, 1849, pp. 328–329). William Preston reassured the convention that the requirement that judges stand for reelection would never induce judges to campaign or prostrate themselves before party leaders because the people would ‘‘have intelligence enough to rebuke any such attempts on the part of an electioneering judge’’ (Kentucky Constitutional Convention, 1849, p. 244). The delegates offering this justification for an elective judiciary argued that sustained electoral pressure, far from corrupting judicial decision-making, would encourage judges to render impartial and consistent decisions. Thus, this argument about whether

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elections would maintain or undermine judicial independence was framed as a disagreement about the behavior of the electorate. Would the people act in unison to punish any judge who appeared to be subservient to a particular party or class? Or, as the proponents of term limits claimed, would a deeply divided people induce every judge to pander to the most powerful electoral group?

JUDICIAL INDEPENDENCE AND ORGANIZATIONAL CAPACITY The delegates’ debate about whether judges should be limited to one term in office highlights an additional understanding of judicial independence. Most discussions of the structures that guarantee judicial independence have focused on the mechanisms through which judges are selected and removed from office.15 However, other features of a judiciary also affect its ability to exert an independent influence on politics. In his sweeping and sophisticated study of the federal judiciary’s development, for instance, Justin Crowe demonstrates that Congress’ brick-and-mortar decisions about the resources available to courts, the number of justices and clerks staffing those courts, and the logistical requirements of their offices have, over time, helped to transform the federal judiciary into the prestigious and influential institution that it is today (Crowe, 2012).16 In redesigning their state’s judiciary, the delegates to Kentucky’s constitutional convention also debated choices about these capacity-building features, and asserted that these choices would affect the judiciary’s independence. The realities of life as a judge, these delegates explained, would have an enormous impact on the caliber of the state’s judges, and without highcaliber judges, the state could not hope to possess an independent judiciary. For instance, the delegates who opposed judicial term limits insisted that if judges were restricted to one short term of six or eight years in office, this restriction would discourage talented jurists from seeking the office. Apperson asked the convention: ‘‘If a judge is not to be re-eligible [for election to the bench], where is the lawyer willing to leave his lucrative practice, and break up all his business connections to accept the office? y where is the man y with a good practice, who would be willing to surrender that practice to go on the bench, and there to serve for eight years and not to be re-eligible?’’ (Kentucky Constitutional Convention, 1849, p. 238). While no delegate claimed that capable judges or material resources were sufficient to establish an independent judiciary, several delegates argued that

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both were necessary conditions for judicial independence. Turner, for instance, avowed that capable judges were particularly crucial to maintaining judicial independence in an elective system, where the changing views of democratic majorities might convince less capable judges to vacillate in their rulings: ‘‘It is essential to the firmness and independence of the judiciary, that it should possess powerful talents to sustain itself. I want no third rate judges in the court of appeals and in the circuit courts to battle against the mighty power that will surround them at all times’’ (Kentucky Constitutional Convention, 1849, p. 224). Along with several other delegates to the convention, Turner argued that part of the convention’s work in building an independent judiciary was to ensure that the institution they designed was capable of attracting sufficiently talented judges. The delegates who spoke on these issues also evinced wide agreement that high and stable judicial salaries were necessary to build an independent judiciary. To this end, several delegates proposed that the constitution itself should dictate judicial salaries, or at least establish minimum salaries. One reason that this structure would facilitate judicial independence was that it would protect the judiciary from legislative attempts to manipulate judges by cutting their pay. Indeed, the legislature had entertained proposals for just this kind of court-curbing measure during the state’s two-court crisis. Stevenson explained that by fixing a minimum judicial salary in the constitution, the convention could put an end to this legislative maneuver for good: I wish to have the salaries of the judges fixed in the constitution at an adequate minimum. Why? Because I think that also tends to preserve and keep the judiciary independent. When I was in the legislature for one or two years, I frequently heard propositions made to reduce the salaries of the judges, although they were but twelvehundred dollars y . I am for putting a limit beyond which the legislature shall not come, whatever that limit may be. Let this convention agree upon what would be the true minimum compensation, and beyond that do not let the legislature go. (Kentucky Constitutional Convention, 1849, p. 349)

In part, then, constitutionalizing judicial salaries would render the judiciary independent by protecting it from the legislature. Turner, who argued that talented judges were also necessary for judicial independence added that another benefit of placing a minimum salary directly in the constitution was that the delegates could ensure that salary was sufficiently high to ‘‘induce the first legal minds of the state to quit the practice of their profession and take the office’’ (Kentucky Constitutional Convention, 1849, p. 224). Guaranteed salaries were one mechanism through which several delegates believed they could enhance the prestige, and therefore the independence, of the state’s judiciary.

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Unsurprisingly, many delegates argued that it was particularly important to maintain the prestige and appeal of a place on the state’s highest court. Several delegates argued that the meeting place, or really the number of meeting places, of the high court would have an impact on the caliber of judges it could attract. Leading up to the constitutional convention, there had been a movement to ‘‘branch’’ or ‘‘rusticate’’ the high court, requiring it to meet in different parts of the state throughout the year. Proponents of this plan argued that it was too difficult for those living far from the capital to reach the appellate court, and that to remedy this problem, the court should hold its sessions in four different districts throughout the state. Several delegates vigorously resisted this plan on the grounds that it would be an unpleasant and expensive prospect for the judges involved. Forcing the state’s highest court constantly to traverse the state would, they argued, sap its prestige, reducing the quality of the judges it attracted and of the justice it dispensed.17 If the high court’s prestige and reputation declined, so too would its capacity for independent governance. Several delegates also argued that multiple branches would either diminish the court’s independence by depriving it of material resources or else prove extremely expensive to maintain. For instance, one delegate, John Stevenson, pointed to the necessity of establishing law libraries in each location where the high court would be expected to issue rulings. He explained, that access to legal materials was central to the high court’s ability to issue correct and consistent rulings, and that the court would not have access to these resources when it met outside of the state capital. Thus, he argued ‘‘the first reason why I am opposed to branching the court is, that it tends to destroy the independence and the stability of the judiciary’’ (Kentucky Constitutional Convention, 1849, p. 348). Other delegates pointed out that libraries were not the only expensive material resources that the court required to operate effectively. Courthouses in particular would need to be bought, rented, or built in each location where the court was set to meet.18 These opponents of the ‘branching’ plan emphasized that considerable resources were required to render a court effective and influential enough to play an independent role in government. In this conception, judicial independence is clearly distinct from accountability, but not its opposite.

CONCLUSION Kentucky’s Jacksonian era debates about the structure of the judiciary were not framed as a choice about whether courts should be subjected to or

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removed from politics. The delegates to the constitutional convention certainly shared the sense with modern scholars that independent courts would be capable of checking the other two branches of government and remaining consistent in their rulings even in the midst of popular uproar. However, they were only two decades removed from a constitutional crisis that made it impossible to imagine that even the state’s highest, constitutional court was outside of, or above, political controversy. They were also immersed in a national movement to render all kinds of governmental offices less elite and more responsive to a unified ‘‘people’’ with a high degree of knowledge about what would promote their own, common good. As a result, Kentucky’s delegates did not understand judicial independence to require barriers between the courts and the pressure of popular opinion. Instead, they reasoned that the state’s enlightened ‘‘people’’ would surely do all it could to preserve the rule of law by establishing and maintaining the judiciary’s independence. Their challenge, therefore, was not to balance political accountability against political pressure, but to ensure that the court was only exposed to salutary forms of politics, and shielded from pernicious ones, like partisanship, patronage, and the aristocracy of wealth. One implication of the dramatic difference between this antebellum project of judicial design and the modern literature about judicial independence is that if we want our definitions of judicial independence and accountability to reflect what the political actors using these terms mean or have meant by it, we cannot adopt a single or static definition. As Lisa Hilbink has explained, ‘‘the historical and ideational context in which institutional designers operate’’ will always shape the way they perceive and justify their choices (2009, p. 782). Kentucky’s constitutional debate clearly supports this assertion. Its convention explicitly structured the state’s judiciary with reference to the recent constitutional crisis, and described that structure using the reform ideas of the period. The conversation about judicial review in antebellum Kentucky looks extraordinarily different from our own. Indeed, the discussion of Kentucky’s antebellum convention delegates more closely resembles the current scholarly conversation about judicial independence in other parts of the world. For instance, in his study of Latin American judiciaries, Daniel Brinks has argued that in the context of Latin American politics, judicial independence should be understood as the absence of partisan control, rather than the absence of political accountability. He explains, ‘‘the goal y is not the absence of policy preferences in the judiciary – an unattainable one – but their location more or less centrally

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in the relevant policy space so that they cannot be identified with any one faction’’ (Brinks, 2005, p. 603). Insulated from partisan control, Brinks explains, even politically accountable judges may pursue their policy goals without reference to their personal needs for pecuniary gain, career advancement, and social standing. Such judges, he argues, are still able to serve as neutral third parties in disputes, in the sense that their decisions are freed from the direct interference of particular political factions. This sense of judicial independence, as consonant with certain forms of political accountability, but nonetheless threatened by partisan control, certainly resembles the conception of judicial independence advanced by the convention delegates in antebellum Kentucky. Similarly, in her comparative study of judicial independence, Kim Scheppele highlights problems with the reigning conception of judicial independence as the freedom to follow and enforce positive law in the absence of political pressures. For instance, she argues that the post-Soviet constitutional courts of both Hungary and Russia have both engaged in forms of negotiation with the other political branches, attempting to identify the limits of their ability to push the other political branches before those branches would push back (Scheppele, 2002a, p. 268). However, she argues that these courts are carving out a more meaningful form of judicial independence than simply freedom from the influence of other powerful actors within the system. Even as they negotiate with their legislatures and executives, these post-Soviet courts are developing the independence to create and enforce normative principles, with which they can critique legislative and executive action. As they emerge from a political system which possessed vanishingly few meaningful checks on lawmakers, this independence to attempt something other than the neutral enforcement of positive law is a much more important form of independence, Scheppele argues, than simply freedom from other branches of government (Scheppele, 2002a, p. 269). It should go without saying that America’s political history has shaped U.S.-centered theorizing about judicial independence as well. As the Warren Court developed a reputation for protecting minority rights in the face of oppressive majorities, generations of constitutional theorists (both implicitly and explicitly) defended these rulings by emphasizing that constitutional decision-making was a process distinct from politics-as-usual, and centered on higher, legal principle (Dworkin, 1977; Wechsler, 1959). The normative literature on judicial independence (particularly within the legal academy) has thus tended to assert that constitutional courts require protection from politics in order to defend the nation against a tyranny

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of the majority that will trample constitutional principles in the pursuit of its political preferences. This literature has defended judicial independence to make unpopular decisions by insisting that judicial decisions are rooted in legal reasoning, not merely the justices’ political preferences. In other words, judges are said to require independence because they are doing something other (more reasoned, and perhaps nobler) than politics. As a result, the scholarly conversation about judicial independence and judging in the United States suffers from a near-fixation on the distinction (or lack thereof) between politics and law. In antebellum Kentucky, and among those who study judicial independence in other parts of the world, we see a discussion centered on very different, and potentially instructive questions. To be sure, Kentucky’s constitutional convention delegates did not advance particularly explicit or complete theories about the relationship between law and politics, however by acknowledging that courts were inherently a part of the political process, the delegates to Kentucky’s constitutional convention were able to avoid the impossible task of designing a judiciary that could transcend politics without threatening democracy. Instead, they sought to channel judicial politics into avenues that would be most beneficial and least destructive to the rule of law. Their conversations, like those of modern comparative law scholars, help us to imagine how the American discussion about judicial independence might move beyond a debate about the proper amount of judicial accountability and toward an inquiry into the particular types of politics in which judiciaries can and should participate as well as those from which they can and should be shielded.

NOTES 1. Alexander Bickel (1962) famously termed this ‘‘the counter-majoritarian difficulty.’’ Scheppele (2002b) has explained it this way ‘‘Surely judicial independence, although clearly an important element of a democratic order, cannot be maximized to the complete exclusion of other voices and to the ruin of democracy itself’’ (p. 230). 2. A bill to hold a statewide referendum about whether to establish a new constitutional convention passed both houses of the legislature. In the referendum itself, the proposal for a convention won approval by a wide majority of the state’s electorate in 1848 (Harrison & Klotter, 1997). 3. Even Richard Gholosn, who told the convention that he had been on the side of the old court during the crisis, agreed with Hardin’s assessment, explaining ‘‘I do not think, if the majority had been sustained, in the case to which I have referred,

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that the country would have suffered any great harm y the object of the legislature in passing the law, decided to be unconstitutional, was a good one’’ (Kentucky Constitutional Convention, 1849). 4. For instance, one delegate exhorted his fellows thusly, ‘‘our institutions are now in their youthful vigor. y Is not this the propitious period to infuse the great principle of popular activity into the institutions of the country and thus build up its intelligence and patriotism. Now, sir, is the time, relying on the firm basis of popular intelligence, to rear the judicial superstructure with a boldness of architecture commensurate with the strength of its foundation. Now is the time for the people to resume the full power to which their intelligence entitles them (ibid.). 5. For instance, Robert N Wickliffe explained ‘‘I do not contend that the legislature is the people. But they are the representatives of the people, elected every year, and coming fresh from the people, and they are the proper depositories of the duty of holding to accountability all other officers’’ (ibid.). 6. For instance, John Taylor described the state’s constitutional crisis as ‘‘an example which is to be avoided of the danger of legislative power y . Make a judge subordinate to the legislative power and you make him a mere creature of legislative will’’ (ibid.). 7. For instance, Archibald Dixon strenuously objected to the plan to allow a bare majority of the legislature to remove a judge. One of his objection centered on the need to protect minoritarian rights: ‘‘The gentleman seems to think that majorities should rule and control in all things. There are some things in which majorities ought not and cannot rule. Does the gentleman mean to say that the restraints which are there imposed on the rights of majorities are wrong?’’ (ibid.). 8. Lest one dismiss this framework as a rhetorical device to obscure the threats that elections pose to judicial independence, Shugerman demonstrates that these newly elective judiciaries did actually nullify more legislation than their appointive predecessors. 9. For arguments that extensive training was required to prepare a competent clerk, and even more training was required to produce a competent judge, see Squire Turner’s comments (Kentucky Constitutional Convention, 1849) (ibid.). 10. For instance, see Francis Bristow’s argument that he was in favor of judicial responsiveness to the people, but opposed to judicial responsiveness to parties (ibid.). 11. Johnson ultimately argued in favor of granting the state’s elected judges life tenure. But another delegate, Martin Marshall, offered a similar argument in favor of single-term limits: ‘‘This judge is to be elected. His mind is anxious and he begins to weigh his chances of success y . This judge looks then to that party as the source and origin of his power, and with great propriety he looks to them for his reelection’’ (ibid.). 12. See, for example, Dixon’s arguments to this effect (ibid.). 13. For instance, James Irwin declared ‘‘There is great danger that the judge, to secure his reelection, will lean to some extent, in favor of the rich litigant; and another, that if he decided rightfully in his favor, the poor man will distrust his judgment. Both evils are to be apprehended either will be fatal to the character of the judiciary’’ (ibid.). 14. For instance, William Mitchell argued that ‘‘If the people are capable of electing their judges, then must they be equally capable of deciding upon the manner in which the judicial functions have been discharged’’ (ibid.).

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15. As Lee Epstein, Jack Knight, and Olga Shvetsova note, ‘‘Of all the difficult choices confronting societies when they go about designing legal systems, among the most controversial are those pertaining to judicial selection and retention: how ought a nation select its judges and for how long should those jurists serve? y It is thus hardly surprising to find an immense amount of scholarship on questions pertaining to judicial selection and retention’’ (2002). 16. Although the U.S. Supreme Court began with the same institutions for selecting and removing justices that it has currently, Crowe points out that, even with these structures in place, the Court began as a feeble institution, lacking any cases and missing two of its six justices, who had simply failed to show up to work. Thus, it cannot be rules about selection and removal alone that were responsible for creating the robust and influential institution that is our modern Supreme Court. 17. For instance, Turner made the following plea: ‘‘give [high court judges] the power of sustaining their reputation y the honor of the station, the prospect of handing their names down as great expounders of the law and constitution, and who will be remembered for ages to come for their intelligence and ability y . When you and I were boys, there was, Mr. Chairman, before Kentucky became rich, and we got out chinaware and plate, and all that – there was a set of men called tinkers, who went around picking up the old pewter spoons and running them over again – thus making old spoons new. Now sir, this proposition to branch the court of appeals puts me in mind of these tinkers – and you will have tinkers for your judges if you adopt this proposition’’ (Kentucky Constitutional Convention, 1849). 18. See, for example, Turner’s comments to this effect (ibid.). .

REFERENCES Bickel, A. M. (1962). The least dangerous branch: the Supreme Court at the bar of politics. Indianapolis, IN: Bobbs-Merrill. Brinks, D. (2005). Judicial reform and independence in Brazil and Argenitina: The beginning of a new millennium? Texas International Law Journal, 40, 595–622. Burbank, S. B. (2003). What do we mean by ‘Judicial Independence’? Ohio State Law Journal, 64, 323–339. Clark, T. D. (1988). A history of Kentucky (6th ed.). Ashland, KY: The Jesse Stuart Foundation. Croley, S. P. (1995). The majoritarian difficulty: Elective judiciaries and the rule of law. University of Chicago Law Review, 62, 689–794. Crowe, J. (2012). Building the judiciary: Law, courts, and the politics of institutional development. Princeton, NJ: Princeton University Press. Dworkin, R. M. (1977). Taking rights seriously. Cambridge, MA: Harvard University Press. Eisgruber, C. L. (2001). Constitutional self-government. Cambridge, MA: Harvard University Press. Ely, J. H. (1980). Democracy and distrust: A theory of judicial review. Cambridge, MA: Harvard University Press. Epstein, L., Knight, J., & Shvetsova, O. (2002). Selecting selection systems. In S. B. Burbank & B. Friedman (Eds.), Judicial independence at the crossroads: An interdisciplinary approach. Thousand Oaks, CA: Sage.

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Ferejohn, J. (1999). Independent judges, dependent judiciary: Explaining judicial independence. Southern California Law Review, 72(January/March), 353–384. Formisano, R. P. (2008). For the people: American populist movements from the revolution to the 1850s. Chapel Hill, NC: University of North Carolina Press. Garoupa, N., & Ginsburg, T. (2009). Guarding the guardians: Judicial councils and judicial independence. American Journal of Comparative Law, 53(1), 103–134. Geyh, C. G. (2008). Methods of judicial selection and their impact on judicial independence. Daedalus, 137(4), 86–101. Graber, M. A. (1993). The nonmajoritarian difficulty: Legislative deference to the judiciary. Studies in American Political Development, 7(Spring), 35–73. Harrison, L. H., & Klotter, J. C. (1997). A new history of Kentucky. Lexington, KY: University Press of Kentucky. Hilbink, L. (2009). The constituted nature of constituents’ interests: Historical and ideational factors in judicial empowerment. Political Research Quarterly, 62(4), 781–797. Ireland, R. M. (1999). The Kentucky state constitution: A reference guide. Westport, CT: Greenwood Press. Kentucky Constitutional Convention. (1849). Report of the debates and proceedings of the convention for the revision of the Constitution of the State of Kentucky. A. G. Hodges & Co, Frankfort, KY. Kornhauser, L. A. (2002). Is judicial independence a useful concept? In S. B. Burbank & B. Friedman (Eds.), Judicial independence at the crossroads: An interdisciplinary approach. Thousand Oaks, CA: Sage. La Porta, R., Lo´pez-de-Silanes, F., Pop-Eleches, C., & Shleifer, A. (2004). Judicial checks and balances. The Journal of Political Economy, 112(2), 445–470. Levinson, S. (2006). Identifying ‘independence’. Boston University Law Review, 86, 1297–1308. Morone, J. A. (1990). The democratic wish: Popular participation and the limits of American government. New York, NY: Basic Books. Scheppele, K. L. (2002a). Declarations of independence: Judicial reactions to political pressure. In S. B. Burbank & B. Friedman (Eds.), Judicial independence at the crossroads: An interdisciplinary approach. Thousand Oaks, CA: Sage Publications. Scheppele, K. L. (2002b). Judicial reactions to political pressure. In S. B. Burbank & B. Friedman (Eds.), Judicial independence at the crossroads: An interdisciplinary approach. Thousand Oaks, CA: Sage. Shugerman, J. H. (2010). Economic crisis and the rise of judicial elections and judicial review. Harvard Law Review, 123(5), 1061–1151. Wechsler, H. (1959). Toward neutral principles of constitutional law. Harvard Law Review, 73, 1–35. Zobel, H. B. (2001). Judicial independence and the need to please. The Judges’ Journal, 40(4), 5–10.

NOMOS AND FORM: READING A JURY OF HER PEERS AND ‘‘THE PROBLEM OF JUDGMENT’’ IN PROCEDURE Matthew Anderson ABSTRACT 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?

Thus almost everywhere there can be found striking omissions, disturbing repetitions, palpable contradictions, signs of things the communication of which was never intended. The distortion of a text is not unlike a murder. The difficulty lies not in the execution of the deed but in the doing away with the traces. (Freud, Moses and Monotheism, p. 52)

Special Issue: The Discourse of Judging Studies in Law, Politics, and Society, Volume 58, 101–137 Copyright r 2012 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000058008

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The inclusion of A Jury of Her Peers (1917) in the groundbreaking legal casebook, Procedure, in 1988, marks a signal moment not just in the history of the reception of Glaspell’s short story, but also, more broadly, in the history of law and literature as field. By that time, A Jury of Her Peers was already a canonical feminist text and a staple of law and literature studies, and for good reason: Glaspell explicitly depicts the oppression of women by men and implicitly calls attention to the historical exclusion of women from juries in the United States and to related questions of legal procedure. (The irony in the title of the story underscores that at the time of its publication, in 1917, women do not serve on juries.) The story reminds us that the enactment of legal judgment takes place in an embodied historical context shot through with the interests of power, not a vacuum of disinterestedness. From the perspective of an interest in issues of gender and social justice, especially as they relate to questions of legal judgment, Glaspell’s text makes the point not only that the law in this country has often failed to provide justice equitably to women, but that the structures of patriarchal oppression have been encoded in putatively disinterested legal procedure. The inclusion of the story does more than simply consolidate the canonical status of Glaspell’s text, however. By placing it in a textbook intended for a course on Procedure – one of the core courses of the first-year curriculum in law school – the editors argue for an expanded sense of the reach and relevance of literature for an understanding of law. In effect, they move literature from the periphery to the center of the curriculum: previously visible, if at all, primarily as a subject that a law student might encounter in her third year in an elective ‘‘law and literature’’ course, literature now figures at the heart of the textbook for a core ‘‘1L’’ course. This choice is more than a turn to a work of literature to illustrate a problem of law; it is part of a project to rethink what law is and how it is taught.1 The implied claim is not just that literature can hold up a mirror and enable us to take the measure of law’s justice, but that literature is integral to an understanding of law and legal judgment. Precisely because the move from periphery to center challenges received ideas about the disciplinary boundaries of law, the editors face the rhetorical and political (with a small ‘‘p’’) challenge of persuading their peers in the legal community of the value of this reconfiguration of knowledge and pedagogy. Why should literature be integral to law’s self-conception? Why should it decenter prevailing conceptions and modes of representation? And even if one is prepared to accede that there are forms of knowledge specific to literature and its modes of disclosure that can be central to an

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understanding of law and legal judgment, how do we access this knowledge? How do we read literature in the context of law? What is the methodology? The challenge of integrating A Jury of Her Peers is thus not only rhetorical and political, but also procedural. The procedural challenge is easy to miss because it is underplayed. The editors provide three paragraphs of biographical information about Glaspell, followed by a brief series of questions to direct the reading: The story is not explicitly about a jury process, but rather about the relationship between judgment and viewpoint. As you read the story, consider how the women (Mrs. Hale and the Sheriff’s wife) who go to the accused’s home learn about her and about her life, and how the women’s learning process differed from that of the men, in search of ‘‘evidence’’ of the crime. Then consider the value judgments made and the relationship between the judgment process and the kinship experienced between the women and the accused. What does this story tell us about who should be our judges, and why? (Cover, Fiss, & Resnik, pp. 1165–1166)

A couple of things are striking about these guidelines. First, there is a sense in which it feels like a scene of jury instruction. This owes to the immediate rhetorical context and framework of the casebook: the story figures in a chapter on ‘‘The Problem of Judgment,’’ in a subsection of the section on ‘‘The Powers and Attributes of Decisionmakers,’’ entitled, ‘‘Introduction to the Jury: A Jury of Her Peers.’’ Second, the editors direct us to see how the story represents legal judgment as grounded in a perspective that is embodied, interested, and relational. Their instructions heighten our selfconsciousness as readers and encourage a self-reflexive awareness of the ways in which our readings of the story reflect our own subject positions. But they also want us to see the relationship between embodiment or viewpoint and ‘‘process.’’ (They use the word three times: ‘‘jury process,’’ ‘‘learning process,’’ ‘‘judgment process.’’) Here, the perspective of legal actors is a dynamic, intersubjective process of learning and judging – in other words, a process of reading. By framing the text in this way, the editors orient us to think of the juror as reader and of legal judgment as an act of reading. Third, it is somewhat surprising that they do not mention that the story is an adaptation of a one-act play, Trifles (1916), which Glaspell had published the year prior, nor that the play, in its turn, was inspired by a trial that she covered while working in Des Moines, Iowa, as a journalist. The relation with the play intrigues: why did the editors select the short story rather than the play? Does it have to do with its form? This leads to the fourth and final aspect of the introduction to which I would call attention: from a literary perspective, it is noteworthy that it does not include any questions about the form of the text, that is, about how to read the story as a story. For

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example, there are no questions pointing toward the narrative’s genre, voice, period, setting, language, plot, characterization, implied audience, or narrative perspective, or more broadly, the relationship between the form and the content, between what is said and how it said, between the mode of disclosure and what is disclosed. Put differently, there is no indication that the process of reading literature in the context of law calls for an understanding of how to read literature from a disciplinary perspective. Rather, the sense is that although our perspectives and reading processes will vary depending upon our subject position, our access to the text is not mediated by its form – or at least not in a significant way. The form is transparent, a vehicle for the delivery of the thematic content of the story; it is not constitutive of the knowledge that the story discloses. The irony of this way of framing the text is that it reproduces the controlling irony of the story: it looks past the form of the text much as the men in the story look past the signs – and significance – of women’s lives. In the play, Glaspell not only names these signs, but names the play after them: ‘‘trifles.’’ The word evokes the familiar maxim of common law, De minimis non curat lex – commonly translated as, ‘‘the law does not concern itself with trifles’’2 – and echoes with heavy-handed verbal irony in A Jury of Her Peers: ‘‘‘Oh, well,’ said Mrs. Hale’s husband, with good-natured superiority, ‘women are used to worrying over trifles’’’ (p. 6). If the title of the story underlines the theme of judgment, the story’s relationship with the play suggests that, for Glaspell, legal judgment is – or should be – a matter precisely of the significance of trifles. The relationship between legal judgment and the interpretation of signs, and more specifically, the question of whether the signs of women’s lives are legible before the law, is a central thematic concern of both the play and the story. In the story, the men’s blindness to this hermeneutical problem (which is to say, to their misogyny) is made plain early on, when Mr. Hale and Mr. Peters (the sheriff) have a brief exchange in, and about, Mrs. Wright’s kitchen (she is the suspect in the murder of her husband): ‘‘You’re convinced there was nothing important here?’’ he asked the sheriff. ‘‘Nothing that would – point to any motive?’’ The sheriff too looked all around, as if to re-convince himself. ‘‘Nothing here but kitchen things,’’ he said, with a little laugh for the insignificance of kitchen things. (p. 5)

Needless to say, the women will have the last word: ‘‘we call it – knot it’’ (Glaspell, A Jury of Her Peers, p. 18), Mrs. Hale says, in the final moment of

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both the play and the story – a pun that underlines at once the collusive actions that she and Mrs. Peters have taken to exculpate Mrs. Wright (‘‘not it’’), and the men’s obliviousness to the signs before them. Both texts make the point that in order for legal judgment to operate, procedurally, the signs that would be introduced as evidence for adjudication first need to be seen as signs, in order for a determination of their meaning or significance to be possible at all. If the inattention to form, in the textbook’s reading instructions, returns us to the controlling irony of the story, what are we to make of a way of reading that reproduces the misreading it describes? What does this procedural blindness mean? What form of knowledge discloses itself in this way? What would we see if we were to look at the form of the text, and more specifically, what would we learn that might illuminate an understanding of legal judgment?3 These are the questions that guide the present chapter, which offers a reading both of A Jury of Her Peers and of its inclusion in Procedure. With regards to A Jury of Her Peers, my claim is that the form of the text registers an attempt to come to terms with – to find a linguistic form for representing – two traumas: the traumatic experience of Mrs. Wright and the death of God. The first trauma is readily apparent as a central concern of the story. As Mrs. Hale and Mrs. Peters soon seize when they enter Mrs. Wright’s kitchen, signs of her traumatized consciousness – signs that would inculpate her in a court of law – abound in the space, and they have to decide how to align themselves, as women and as legal actors, in the face of the evidence of her trauma and the murder to which it led. Equally telling, the text itself preponderates with self-reflexive markers of authorial selfconsciousness that link the compositional act of writing the narrative, as well as our own act of reading, with the actions of Mrs. Hale and Mrs. Peters: we know that we are reading a scene of reading that is also a scene of writing, in a double sense; that is, we know that Glaspell is writing as carefully and self-consciously, if not indeed compulsively, as the women in the story are reading and interpolating the story of Mrs. Wright’s traumatic experience. When Mrs. Hale says, ‘‘knot it,’’ the text offers up not just a pun, but a moment of self-reflexivity. The action is tied-up and resolved (i.e., the formal unities have been respected), and the tie-in of the writing in the story and the writing of the story is complete. There are no loose ends. The second trauma is harder to discern because it is internalized, but it is palpable nonetheless. It comes fully into view when we read the story against the backdrop of The Verge (1921), a play that Glaspell writes just four years

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after A Jury of Her Peers and in which her concern with the consequences of the death of God, especially what it means for literary form, is fully externalized. While the relationship between form and content in A Jury of Her Peers is complex and needs to be developed in detail, on a general level we can say that the compulsive, self-reflexive attention to order, symmetry, and completeness, both in the story and of the story, is motivated (or overdetermined) by the cross pressure of a dual imperative, on the one hand, to integrate and represent, and on the other, to conceal and suppress. This tension is recognizable as an aspect of the dialectic of trauma.4 If this is what learn when we read the form of A Jury of Her Peers, what does it reveal about the blindness to form in Procedure? What does it mean for legal judgment? Though it is tempting to do so, it would be too strong to claim that the inattention to form in Procedure, too, not only responds to the logic of traumatic experience, but is a symptom of the same trauma – the Death of God – and betokens a return of the repressed, sacred religious imaginary in legal judgment. But something not far from this is the case. I would suggest that in A Jury of Her Peers the form of the story registers an effort to come to terms with the ramifications of the death of God, to offer a form of reassurance that it can be countenanced within existing forms and does not have to signify a radical, if not apocalyptic, rupture with the real (understood, here, as the product of a social imaginary). Similarly, the inclusion of A Jury of Her Peers in Procedure reflects an attempt to establish a normative framework for legal judgment in a secular age – what Robert Cover calls a ‘‘paideic nomos’’ (1995a, ‘‘Nomos and Narrative,’’ p. 209). (Cover co-edits the textbook with Owen Fiss and Judith Resnik.) More specifically, it enacts the turn to narrative that Cover calls for in his seminal essay ‘‘Nomos and Narrative’’; it expresses a hope that law can find in a relationship with narrative the resources for a ‘‘redemptive constitutionalism,’’ a lived, communally shared sense of law as a project of meaning that articulates, through its judgments, an aspirational movement toward the historical actualization of ideals of justice (1995a, p. 132) – as he puts it, a movement that sets out ‘‘to liberate persons and the law and to raise them from a fallen state’’ (1995a, p. 132). In other words, law’s judgments matter, and narrative matters for legal judgment. In this account, A Jury of Her Peers and Procedure share a concern with what the displacement of the sacred, religious, Judeo-Christian imaginary means for legal judgment, and more narrowly, for the relationship between law and literature. (I bracket, for the moment, the shift in nomenclature from ‘‘narrative’’ to the more restrictive category of ‘‘literature.’’) To the editors’ closing question, ‘‘[w]hat does this story tell us about who should be

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our judges, and why?,’’ we could append a further set of questions: what does it mean that the text that we are reading to ground our discussion of the ‘‘Problem of Judgment’’ is an early twentieth century, American, social realist short story, rather than, for example, the Biblical story of the Judgment of Solomon? What is the significance of the fact that the narrative under consideration is a secular, literary text, rather than a text drawn from a sacred, religious tradition? What does this tell us about the conditions of legal judgment in the United States? These questions help bring into view the nature and historical significance of the procedural, institutional relationship that Cover and his co-editors work to establish between law and literature, and why that relationship matters for legal judgment.

NOMOS AND NARRATIVE In ‘‘Nomos and Narrative,’’ Cover describes law as a bridge that connects the present world to a possible future, a bridge that narrative makes possible by providing a way to envision what a better future and a different history could look like, the contours of a world to be. ‘‘Law,’’ he writes, ‘‘may be viewed as a system of tension or a bridge linking a concept of a reality to an imagined alternative – that is, as a connective between two states of affairs, both of which can be represented in their normative significance only through the devices of narrative’’ (1995a, p. 101). Cover leaves open the question of what he has in mind exactly when he speaks of ‘‘narrative.’’ The indications he does provide make clear that his concept encompasses both fiction and nonfiction, and that he is as interested (if not more interested) in sacred, religious textual traditions as he is in secular, literary traditions. At times, one feels that in his eyes the form of the relationship between law and narrative ultimately matters as much as the content and positive values of the narratives themselves. Is the form the content? Presumably, the inclusion of Glaspell’s short story exemplifies the relationship between law and narrative that Cover has in mind. Glaspell’s text both looks ahead toward and actively participates in making possible the present tense of the textbook – the moment when the lessons to be drawn about law and legal judgment from the experience of the law to which she gives voice in her story are self-consciously internalized and encoded in the institutional practices that shape the way that law is conceptualized and taught. On this score, there is a point not quite made but hinted at in the introduction about the significance of the inclusion of Glaspell’s text

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in the context of the politics of canon formation. The editors indicate that ‘‘[a]lthough she was awarded the Pulitzer Prize for fiction in 1931, her work was, for some time, forgotten by literary critics’’ (p. 1167) – a neglect attributable presumably to her gender and her politics. We understand that the inclusion in Procedure participates in the recovery of her work, and that it marks a milestone in the work of fulfilling the historical vision of progressive, feminist reform that Glaspell embraces. The story and the textbook work in tandem to realize a shared vision of law and history. But Glaspell’s story isn’t included simply to redress an historical injustice and make plain that women’s lives and voices have been marginalized, silenced, and forgotten in American history, notably before the law – though that historical reality is at the heart of the story and of the work that it is called upon to do in Procedure. As the passage from ‘‘Nomos and Narrative’’ suggests, Cover and the editors invest themselves not just in the reconstruction of law’s memory and of legal judgment, but also in foregrounding the normative relationship between law and narrative, and more specifically, between law and literature; indeed, the two gestures are linked. Elsewhere in the essay, Cover famously states that ‘‘[n]o set of legal institutions exists apart from the narratives that locate it and give it meaning’’ (p. 95). Though Cover’s work is no doubt familiar to many readers of the present chapter, this statement has several dimensions that are worth developing here. First, though Cover says that law and legal institutions are enframed by narrative, this does not mean that he collapses the difference or distance between the two. This is not ‘‘law as literature.’’ Cover’s interest lies firmly with law, and more specifically, with what he calls ‘‘jurisgenesis,’’ the creation of legal meaning (1995a, ‘‘Nomos and Narrative,’’ p. 103). The thrust of much of his work goes toward reclaiming a sense of law as a structure and practice of meaning that is one of the hallmarks of a great civilization, while keeping squarely in view law’s violence and its imbrication with power.5 His commitment to this project owes to his ‘‘disturbing’’ sense that ‘‘[t]here is a radical dichotomy between the social organization of law as power and the organization of law as meaning,’’ a dichotomy that he says is ‘‘particularly open to view in a liberal society’’ – such as the United States – ‘‘that disclaims control over narrative’’ (1995a, ‘‘Nomos and Narrative,’’ p. 112). Yet even as he activates a self-conscious awareness that a legal tradition is always ‘‘part and parcel of a complex normative world’’ (1995a, ‘‘Nomos and Narrative,’’ p. 101) – a world whose normative significance he says can only be represented through narrative – he does not lose sight of what is specific to the domain of law.

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Law’s specificity is referable not just to law’s relationship with power and violence, and to the fact that in law, unlike literature, interpretation moves toward a judgment, a verdict; it owes also to the way law functions at once as a bridge between the present and the future, and as a force (his word) that prevents the ideal, normative vision of a potential future from reaching full actualization. ‘‘Law,’’ he writes, ‘‘is a force, like gravity, through which our worlds exercise an influence upon one another, a force that affects the courses of these worlds through normative space. And law is that which holds our reality apart from our visions and rescues us from the eschatology that is the collision in this material social world of the constructions of our minds’’ (1995a, ‘‘Nomos and Narrative,’’ p. 102). Even as legal judgment moves law along an historical axis toward redemption, toward a complete expression of justice, it also works, in the same movement, to forestall a completeness of expression. Law must extend toward an ideal and act as a bridge between the present and the future, but also prevent the future, in the sense of keeping the ideal from becoming real. The novelist (pace E. M. Forster) must only connect; the judge must connect and keep separate. But narrative supplies something vital that law cannot provide for itself from within: the vision and imagined ideal without which law lacks extension, a horizon of expectation, a sense of time and history – in Cover’s words, a sense that the destiny of law and legal judgment, in the United States, should be animated by a ‘‘redemptive constitutionalism.’’ This dimension of the relationship between narrative and law is at the heart of ‘‘Nomos and Narrative’’ and of Cover’s sense of the project of law; it is the fullness of what he means when he says that narrative ‘‘locates’’ law and ‘‘give[s] it meaning.’’ As he make plain in the essay, he is impatient with the unwillingness of judges (Supreme Court Justices in particular) to assert a nomos, a normative framework, in the exercise of their function; he sees too many taking a stance that in his view is too circumscribed, that is, that defers too much to the administrative authority – and thus the violence – of the State and leads the law to lose its bearings in legal judgment, to turn away from its moral calling and responsibility. ‘‘The commitment to a jurisgenerative process that does not defer to the violence of administration is the judge’s only hope of partially extricating himself from the violence of the State’’ (1995a, ‘‘Nomos and Narrative’’, p. 162). For Cover, law is more than administration and procedure; it is – or should be – unapologetically eschatological in the ambit of its commitments and thus its judgments. As many readers of his work have observed, much of the force of Cover’s vision of legal judgment owes to its messianic quality, his unabashed embrace of the register of the oracular and the prophetic.6 Consider the extraordinary

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closing paragraph of ‘‘Nomos and Narrative,’’ which is worth reproducing in its entirety: The statist impasse in constitutional creation must soon come to an end. When the end comes, it is unlikely to arrive via the Justices, accustomed as they are to casting their cautious eyes about, ferreting out jurisdictional excuses to avoid disrupting the orderly deployment of state power and privilege. It will likely come in some unruly moment – some undisciplined jurisgenerative impulse, some movement prepared to hold a vision in the face of the indifference or opposition of the state. Perhaps such a resistance – redemptive or insular – will reach not only those of us prepared to see law grow, but the courts as well. The stories the resisters tell, the lives they live, the law they make in such a movement may force the judges, too, to face the commitments entailed in their judicial office and their law. It is not the romance of rebellion that should lead us to look to the law evolved by social movements and communities. Quite the opposite. Just as it is our distrust for and recognition of the state as reality that leads us to be constitutionalists with regard to the state, so it ought to be our recognition of and distrust for the reality of the power of social movements that leads us to examine the nomian worlds they create. And just as constitutionalism is part of what may legitimize the state, so constitutionalism may legitimize, within a different framework, communities and movements. Legal meaning is a challenging enrichment of social life, a potential restraint on arbitrary power and violence. We ought to stop circumscribing the nomos; we ought to invite new worlds. (1995a, p. 172)

The visionary, apocalyptic tone of the passage is astonishing. This is legal scholarship-as-revelation, a prophetic vision of an end-time and reckoning near at hand for law, legal judgment, and its actors – especially judges. Cover’s stance is one that many legal and literary scholars are apt to find at once compelling and problematic. On the one hand, part of the attraction of his vision of legal judgment is precisely that it is quasi-religious: it tacitly confers upon law, judges, and legal scholars the mantle of a sacred, religious (read, Talmudic) tradition of thinking through problems of judgment against the backdrop of scriptural hermeneutics, and along with that, a sense of ontological and historical clarity of purpose. On the other hand, this is also the problem with his vision, since it runs counter to an embedded, widely shared assumption that the normative framework of Judeo-Christian belief is de´passe´, a nomos we have left behind. I would argue that the deeper unease, though, has less to do with an implied sense of law as a ‘‘civil religion’’ (to evoke Robert Bellah’s conception (1967)) or with ‘‘the migration of religious conceptions into legal thought’’7 (as Paul Kahn puts it (2003)), than with the question of whether a secular, liberal civil society can actually supply a nomos for itself. Even if one feels that it isn’t clear that the passage from a sacred, religious imaginary is entirely possible or even desirable, and there is an interest in retaining some of its forms, decoupled from certain ontic and epistemic assumptions, dogmatic content, and

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institutional structures of authority, one may have an uneasy sense of uncertainty about whether the resources of the secular imaginary are adequate to the task: are they robust enough to provide what is needed for the cultivation of a social imaginary and structure of feeling that can orient and countenance the imperatives, complexities, and incommensurabilities of legal judgment? This problematic is at the heart both of ‘‘Nomos and Narrative’’ and of the inclusion of A Jury of Her Peers in Procedure. To grasp how it figures in Cover’s work, we first need to recall his delineation of the two kinds of nomos. On the one hand, there is the ‘‘paideic’’ nomos, which he describes as ‘‘world-creating.’’ He enumerates its characteristics: (1) A common body of precept and narrative, (2) a common and personal way of being educated into this corpus, and (3) a sense of direction or growth that is constituted as the individual and his community work out the implications of their law. (1995a, ‘‘Nomos and Narrative,’’ p. 105)

He makes clear that he has in mind, for this, the model of Torah-centered traditions of Judaic civilization and the Christian conception of the Church. On the other hand, there is the ‘‘imperial’’ nomos, which, he says, is ‘‘world maintaining,’’ and for which the civil community is its model. He is careful to indicate that it isn’t a matter of choosing one nomos or the other, that both are necessary: ‘‘[n]o normative world has ever been created or maintained wholly in either the paideic or the imperial mode. [y] Any nomos must be paideic to the extent that it contains within it the commonalities of meaning that make continued normative activity possible’’ (1995a, ‘‘Nomos and Narrative,’’ p. 107). What concerns him with respect to law and judgment in the United States is his sense that the imperial mode predominates, in part because the liberal, constitutional safeguards – notably in the first amendment – against the establishment of a state religion and infringement upon individual speech undermine the unity necessary to establish a strong narrative tradition and the paideic nomos that depends upon it (1995a, ‘‘Nomos and Narrative,’’ pp. 110–111). This predicament leads to the question of whether a civil community such as the United States can produce and sustain a paideic nomos. Early in ‘‘Nomos and Narrative,’’ Cover introduces the question, though only briefly and indirectly, through a summary of Karl Barth’s view on the subject: Karl Barth, writing of Christian community and civil community, stressed the absence in civil community of the strong forces of normative world building that are present in the Church and, I would add, in other paideic communities. [y] Barth emphasizes the absence from civil community of strong interpersonal bonds, of the common meanings

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found in shared ritual or prayer, and of a common corpus – Torah, creed, or gospel – that is taught, believed in, and recognized as the moving normative force of the community. (1995a, pp. 106–107)

Cover does not develop this question further in the essay, but it is latent throughout it. As he says of the relationship between law and Torah, in connection with his description of the paideic, ‘‘Law as Torah is pedagogic’’ (Cover, 1995a, ‘‘Nomos and Narrative,’’ p. 105). The same could be said of the relationship that he envisions between law and narrative, and that he and the editors attempt to instantiate by including Glaspell’s text. (It is not the only motivation for the inclusion, of course: questions about the construction of gender figure importantly as well.) They are trying not just to call attention to the epistemological constraints of legal judgment and to law’s collusion in a history of procedurally sanctioned patriarchal oppression, but to contribute to the creation of a paideic nomos – that is, a corpus and a pedagogy, a shared practice and tradition of interpretation, and a community of readers that judge law and law’s judgments through a lived relationship with narrative. Put differently, law as narrative is pedagogic. As with any similar originary moment, the editors face the challenge of creating or calling into existence the audience and practices of interpretation that the inclusion assumes. They intervene in the core of the law school curriculum and introduce a literary narrative in the hope that the act of reading, interpreting, and discussing it in community, in that institutional context, will model and stimulate a pedagogy that leads not simply to a reconceptualization of legal procedure, but to a shared, embodied, ritualized experience of law and legal judgment as paideia, not just empire. The questions they pose aren’t questions for a reading group; or rather, they are, and that’s precisely the point: to an extent, the act of asking the questions in the context of a reading of a narrative – a reading conducted self-reflexively and in community, and of a shared text – matters as much as the particular text and the questions themselves. The editors aren’t just addressing questions to a group of readers, they are trying to form a community of legal actors as readers and thus inaugurate a tradition that locates and gives meaning to law’s judgment through an institutionally ritualized relationship with a narrative. Put another way, there is a sense in which establishing the form of the relationship between law and narrative matters at least as much, here, as the content of the questions that they raise in their reading instructions. Their questions are genuinely open and do not admit of easy answers; the inclusion of Glaspell’s story is not an exercise in political correctness. But

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the larger point is performative: to ask ourselves and discuss together questions of legal judgment in the context of a reading of a narrative lends a texture to our relationship with these questions that it would not otherwise have. Again, the fact that the text that they select for this inaugural moment is one that is so explicitly about the significance of form makes the inattention to form, in the reading instructions, all the more conspicuous and ironic. The reading I propose of A Jury of Her Peers centers around a further textual irony: though the evidence of Minnie Wright’s state of mind matches what we know of the symptomatic signs of trauma and the story artfully intimates a sense of the contours of her fragmented consciousness, Glaspell does not register the effects of the trauma in the form of the text; the lexical surface is smooth, purposive, and well integrated, free of the textual symptoms – incompleteness, fragmentariness, and repetitiveness – that, after Freud, we have come to recognize as the textual hallmarks of trauma (Freud, 1967, p. 52).8 To put it differently, on some level there is a disjunction between the form and the content of the story, between what the story represents and the way it represents it. In this regard, the contrast between A Jury of Her Peers and the play The Verge – which she writes just four years later – is striking. In The Verge, Glaspell, experimenting with a modernist, expressionist style that is more overtly melodramatic and that marks a radical shift away from the social realism of A Jury of Her Peers, represents the consciousness of a woman arguably suffering from trauma and reproduces its symptoms in the form of the text. (I leave aside for the moment the question of the significance of the fact that The Verge is a play, not a narrative.) I am not suggesting that the representation of trauma that she offers in A Jury of Her Peers is less meaningful or effective, or by extension, that modernism is superior to realism as a mode of representation. Rather, the point is that Glaspell, as a writer, understands and experiences the representation of trauma as a problem of form, and that she makes different aesthetic choices in the two texts. What motivates these choices? What difference do they make? What do they tell us about legal judgment?

A JURY OF HER PEERS In the critical literature, Mrs. Wright is commonly read as a survivor of domestic violence.9 One does not have to look far in the text for corroborating evidence. As Mrs. Hale and Mrs. Peters – the two women

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who drive the narrative – soon notice as they look around her kitchen, signs of her suffering and of the abusive circumstances of her life abound. There are signs of fragmentariness (a missing rung in the back of a chair, the broken lining of the stove, ‘‘shabby clothes’’ (p. 8)) incompleteness (the half-poured bag of sugar, the dirty dishes, the half-cleaned kitchen table), and violence (the broken hinge of the birdcage). As Mrs. Hale intimates, with the characteristic, elliptical understatedness of a rural Midwesterner, Mrs. Wright’s husband was a hard man: ‘‘I don’t think a place would be any the cheerfuller for John Wright’s bein’ in it’’ (p. 7). More tellingly, still, the irregularities that she and Mrs. Peters notice in the sewing of the quilt block that Mrs. Wright was last working on – there are no other such imperfections in the rest of the quilt – bespeak of the fragmentation and disintegration of the texture of her consciousness. Lastly, the dead canary that they find lovingly preserved in her sewing box, where she kept it, figures plainly as a symbol of the extinction of Mrs. Wright’s voice and spirit at the hands of her husband, and thus points to a proximate cause and motive for the murder. (It also accounts for the method of the killing: the bird’s neck has been wrung – much like Mr. Wright’s.) As noted earlier, the story is an adaptation of a one-act play of Glaspell’s, Trifles, itself based upon the sensational trial of Margaret Hossack – an Iowa farm wife accused of murdering her husband while he slept, with two blows to the head with an ax – which Glaspell covered as a journalist for the Des Moines Daily News, from December 1900 to April 1901.10 In her superb biography of Glaspell, Linda Ben-Zvi cites in an epigraph a revealing passage from Susan Glaspell’s biography of George Crook: ‘‘When I was a newspaper reporter out in Iowa, I was sent down-state to do a murder trial, and I never forgot going into the kitchen of a woman locked up in town. I had meant to do it as a short story, but the stage took it for its own’’ (p. 41). In this sense, we can read the story and the play as fictional glosses of a nonfictional event, and more pointedly, as expressions of solidarity and political engagement by Glaspell. As such, one might reasonably read the aesthetics of both texts as of a piece with the declarative poetics of Charlotte Perkins Gilman, a contemporary of Glaspell’s, who, when describing one of her own works – a collection of poetry, In This Our World (1893) – says memorably: ‘‘I can’t call it a book of poems. I call it a tool box. It was written to drive nails with’’ (Tuttle, p. 11).11 Gilman scholar Jennifer Tuttle elaborates, ‘‘[i]n all of her work – poetry, fiction, and nonfiction alike – she set for herself no less a task: for Gilman, the measure of ‘good’ literature was not so much its aesthetic qualities as the extent to which it induced positive social change’’ (p. 11). Yet although there is no question that Glaspell is

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politically engaged and committed to effecting change in law and society, we should not let that lead us to lose sight of how well she writes and of how her investment in form reflects her commitments. (The same could be said of Gilman’s writing, too, of course.) From a textual point of view, A Jury of Her Peers is both ‘‘readerly’’ and ‘‘writerly.’’ That is, when we read it we are apt to think both of our position as readers and of how Glaspell positions herself as a writer. The parallel between the interpretation performed by Mrs. Hale and Mrs. Peters and the reader’s act of interpretation is readily apparent, as is Glaspell’s positioning of herself as a politically engaged feminist writer observing the stylistic conventions of a literary realism and regionalism favored by socialist writers of her day. What is more, we know not only that we are reading a scene of reading but that the women’s attention to detail mirrors Glaspell’s meticulous craftsmanship – that she is writing as carefully as her two protagonists are reading and ultimately rewriting the signs of Mrs. Wright’s guilt. Indeed, the gestures by which Mrs. Hale and Mrs. Peters suppress the evidence that incriminates Mrs. Wright, and thereby secure a measure of justice, mirror the act of composing the story, of representing an instance of judgment and justice. The text is self-conscious and highly self-reflexive. Glaspell not only makes clear that we are reading a scene of reading and of writing, she also ties the compositional act of writing the story into the text itself – notably, as we have seen, with the closing words of the story, when she ‘‘knot[s] it.’’ On one level, this doubling and tie-in express an authorial solidarity with the women’s actions, an affirmation of a bond and of writing as a mode of political engagement in and against the patriarchal power of law. What would we do if faced with the evidence that Mrs. Hale and Mrs. Peters uncover? How would we judge her? What is lawful? What is just? How would we decide? Or again, as the editors put it in their introduction, ‘‘[w]hat does this story tells us about who should be our judges, and why?’’ Glaspell, for her part, makes no bones about where her sympathy and commitments lie. On another level, however, the relationship between the writing in the story and the writing of the story is more complex and intriguing, still, for though the story depicts a scene of writing, the writing that takes place is directed toward effacing and removing the signs of trauma. That is, what we witness is an act at once of integration and of suppression. There are a couple of ways of reading this. On the one hand, from the perspective of an understanding of trauma, the writing in the text and of the text, and the relationship between the two, represents on both a literal and

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a metaphorical level two elements of the process of recovery. The resewing of the imperfections of the quilt corresponds figuratively to the work that trauma survivors undertake of verbally reintegrating the fragmented shards of their consciousness through a reconstructive act of storytelling. Something similar is true of Mrs. Hale and Mrs. Peters’s decision to take possession of the sewing box with the remains of the canary. In taking it, they ally themselves with her and make her story part of their own. In the context both of their era and the strictures of legal procedure, this means breaking the law and becoming complicit in the crime; in the context of the work that recovery from trauma involves, however, the scene dramatizes the challenge that trauma presents to those who bear witness to the survivor’s testimony – a challenge that Mrs. Hale and Mrs. Peters meet. In this view, the form of Glaspell’s story itself at once models and participates in the work of recovery precisely because it is a story, that is, a purposively integrated representation of trauma and its aftermath, as well as a sympathetic act of witness, a form of testimony.12 On the other hand, one of the injustices of the women’s predicament is that it is only by silencing both the evidence and themselves that they can secure a measure of justice for Mrs. Wright: to do justice to the reality of her trauma they have to suppress the symptomatic signs of her consciousness – much as Glaspell herself produces a lexical surface that is free of the textual signs of trauma. This, too, can be read on at least two levels. On one level, it is another index of patriarchal oppression, a measure of the justice available to the women at that time. The women’s decision to suppress evidence is neither uncomplicated nor without moments of hesitation or ambivalence; they know full well that their actions are unlawful.13 But in the end they decide that in the case of Mrs. Wright the claims of justice outweigh the claims of the law. They know instinctively what kind of reading the evidence is likely to produce at the hands of the actual ‘‘jury of her peers’’ provided for by legal procedure. At best, the evidence might be taken as indicative of mens rea, of her psychological instability at the time of the murder, and thus could set the stage for an insanity defense, if not a self-defense argument. Yet even this would be objectionable. The issue is not so much that justice has already been served, arguably, by the murder of the abusive Mr. Wright and that there is therefore no need for Mrs. Wright to face any legal proceedings (though there certainly is a strain of that sentiment in the story), but that the jury before which she would appear would be unlikely to read her correctly. That is, it is likely that the all-male jury in Iowa in 1917 would read her psychological instability as a sign of hysteria and read that hysteria, in turn, as the marker of the essential characteristic of her sex; in other

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words, that they would identify Minnie Wright’s body, not her embodied, historical experience, as the source of her affective disturbance. The hearing and reading for which Glaspell’s story advocates is one that recognizes that her mental illness (if the state of mind suggested by the textual evidence can be rightly be called that) is the symptom of a disorder whose etiology is social and historical, not biological or essential, one that owes not to the imputed vicissitudes of her sex but rather to a tragically pernicious construction of gender. On another level, the tension between integration and suppression suggests the challenge of representing trauma, both in narrative and before the law. From a psychological point of view, it is consistent with what Judith Herman calls the ‘‘dialectic of trauma’’ – the tension a survivor of trauma feels between, on the one hand, a need to speak and verbally integrate the truth of her experience, and on the other, an instinct to remain silent, either out of fear that her testimony will be resisted and challenged by her community, or from an intuitive sense that the trauma is unrepresentable, or both. From a narratological point of view, if Mrs. Hale’s and Mrs. Peters’ rewritings of the scene of the crime are self-reflexive moments that mirror the way Glaspell herself elides the textual symptoms of trauma, there is arguably a sense in which their respective compositional acts reflect a clear-eyed recognition that neither the law nor the social imaginary to which it belongs are prepared – ideologically, procedurally, or otherwise – to recognize the testimony of trauma: its textual characteristics defy the frame of dominant conventions governing the narrative representation of consciousness and of the ‘‘real.’’ As a result, a central dimension of the story of Mrs. Wright’s experience, as of traumatic experience in general, remains at the margins of socially and legally legible experience. The problem with trauma, from the perspective of social and political engagement – especially activism that seeks to redress injustice through the courts – is that it contravenes and defies a socially agreed upon narratological norm, one that law at once recognizes and embeds.14 This returns us to the disjunction between the form and the content of the text, between what the text represents and how it represents it, and what it means for legal judgment. We could now say that the form of Glaspell’s text encodes the question of whether it is possible to represent trauma before the law, that is, whether it exceeds law’s forms, language, and processes. In this account, Glaspell knows that she is involved in an act of reforming social and political reality, a reality that has an imaginary that is deeply embedded in language and a structure of feeling; that structure has a dominant form, with conventions that must be respected if the story is to be accessible to

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the audience. In other words, the disjunction between the form and the content reflects Glaspell’s understanding that to be socially and politically effective, in this case, requires framing the story a certain way. She has to displace or frame out certain elements and forms of experience; for instance, though Mrs. Wright is at the heart of the story, she is never physically present in its setting. (In The Verge, by contrast, the central figure, Claire, is present and vocal throughout.) But it is important to note that this works in both directions: if Glaspell leaves Mrs. Wright out of the frame because she knows that the form of language that she embodies would break the frame of the narrative and is thus, in some sense, inadmissible, the narrative is arguably all the more elegant, effective, and respectful as a representation of trauma precisely because it respects that difference and does not ask the victim to bear witness within the framework of the dominant linguistic conventions of the real. Indeed, one of the marvels of the text as a text, is precisely that it makes Mrs. Wright’s trauma so palpable: we feel it; she does not need to appear before us. This reading of the relationship between the form and the content is coherent, but it is not complete. It does not address the compulsiveness of the attention to form in the story and of the story – a symptomatic aversion to incompleteness and fragmentariness that is introduced as a central motif from the opening passage, with Mrs. Hale’s visceral unease with ‘‘things half done’’: When Martha Hale opened the storm-door and got a cut of the north wind, she ran back for her big woolen scarf. As she hurriedly wound that round her head her eye made a scandalized sweep of her kitchen. It was no ordinary thing that called her away – it was probably further from ordinary than anything that had ever happened in Dickson County. But what her eye took in was that her kitchen was in no shape for leaving: her bread all ready for mixing, half the flour sifted and half unsifted. She hated to see things half done; but she had been at that when the team from town stopped to get Mr. Hale, and then the sheriff came running in to say his wife wished Mrs. Hale would come too – adding, with a grin, that he guessed she was getting scary and wanted another woman along. So she had dropped everything right where it was. (p. 1)

The description of the event that is calling her away as being ‘‘no ordinary thing’’ provides an indication that we are entering the domain of trauma. Judith Herman says that trauma is extraordinary, not because it is rare (sadly, it isn’t, of course) but because it overwhelms ordinary adaptations to life (1997, p. 33). But Glaspell makes clear that what gets Mrs. Hale’s attention, and thus ours, is the ‘‘scandal’’ of the unfinished work that she is leaving behind in her kitchen, which enervates her need for order, symmetry, and completeness in the form and the space of her life. This compulsive

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concern with form, like the nervous unease that accompanies it, carries throughout the story and account for why she is so highly attuned to and such an astute reader of the signs of trauma in Mrs. Wright’s kitchen. Note for instance how her eye is ‘‘held’’ by the half-poured bag of sugar she notices in Mrs. Wright’s kitchen: She looked around the kitchen. Certainly it was not ‘‘slicked up.’’ Her eye was held by a bucket of sugar on a low shelf. The cover was off the wooden bucket, and beside it was a paper bag – half full. Mrs. Hale moved toward it. ‘‘She was putting this in there,’’ she said to herself – slowly. (p. 7)

Shortly after this observation, she notices that the kitchen table is half cleaned: ‘‘Mr. Henderson [the county attorney] said, coming out, that what was needed for the case was a motive. Something to show anger – or sudden feeling. Well, I don’t see any signs of anger around here,’’ said Mrs. Hale, ‘‘I don’t’’ – She stopped. It was as if her mind tripped on something. Her eye was caught by a dish-towel in the middle of the kitchen table. Slowly she moved toward the table. One half of it was wiped clean, the other half messy. Her eyes made a slow, almost unwilling turn to the bucket of sugar and the half empty bag beside it. Things begun – and not finished. (p. 9)

Here the indication is plain that the search of the house is an ironic act of reading, a search for signs – specifically, ‘‘signs of anger.’’ What makes this parallel even more intriguing is that the reading is self-conscious and selfreflexive. The search for a motive folds into the motif of Mrs. Hale’s sensitivity to signs of disorder, incompleteness, and fragmentariness, signs that preponderate in Mrs. Wright’s kitchen. The signs are intrusive for Mrs. Hale and intensify her self-consciousness; when she notices them, they tell us something not only about Mrs. Wright’s state of mind, but about her own as well. Consider how her thoughts unfold after her discovery of the half-poured bag of sugar: She thought of the flour in her kitchen at home – half sifted, half not sifted. She had been interrupted, and had left things half done. What had interrupted Minnie Foster? Why had that work been left half done? She made a move as if to finish it, – unfinished things always bothered her, – and then she glanced around and saw that Mrs. Peters was watching her – and she didn’t want Mrs. Peters to get that feeling she had got of work begun and then – for some reason – not finished. (pp. 7–8)

Much as the sight of the half-cleaned table leads her to make an ‘‘almost unwilling turn’’ and look back to the half-poured bag of sugar, the latter, in its turn, reminds her of the work left undone in her own kitchen – the

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half-sifted flour – and draws her yet closer to Mrs. Wright’s psyche. When she thinks back to her own kitchen, it returns us, textually, to the opening passage of the story. As the signs in the kitchen intrude upon her consciousness, we, like Mrs. Hale, are aware of how this textual compulsion repeats itself, that is, how her attention to form figures both in the story and as a kind of repetition compulsion in the structuring of the story. If Mrs. Hale is susceptible to a compulsion, and the form of the story, too, responds to the logic of a compulsion, what is the anxiety, the obsessive fear, that the symptom is meant to conceal and thus expresses as a symptom? If the textual compulsion is the symptomatic expression of a sense of guilt, what is that guilt? One way to read both the symptom and the guilt that lies behind it as further indices of patriarchal hegemony. Here, Mrs. Hale’s nervous sense of conspicuousness about her compulsiveness, in the above, is telling. She is concerned not just about what her unease at the sight of the half-poured bag of sugar might communicate about her to Mrs. Peters, but that the unease might be communicable. It is hard to know whether to trust her reading of her motive: why is she glancing around? Is her concern really for Mrs. Peters, or is she worried, rather, about how Mrs. Peters might read and judge her behavior? That is. is she motivated by fellow feeling for Mrs. Peters, or rather by a sense of shame about her compulsion? Either way, the concern she expresses is revealing in the sense that it is plausible: the fact that Mrs. Hale’s discomfort could be communicable, that it could activate the same complex of feelings in Mrs. Peters, suggests that her symptoms are symptoms of a ‘‘nervous condition’’ that is culturally endemic, a condition referable to gender, that is, to a socially constructed structure of feeling, rather than to her individual character. In this connection, it is worth attending to the feeling of self-reproach that Mrs. Hale voices to Mrs. Peters, immediately after they notice the damaged hinge of the birdcage: ‘‘Look at this door,’’ she [Mrs. Peters] said slowly. ‘‘It’s broke. One hinge has been pulled apart.’’ Mrs. Hale came nearer. ‘‘Looks as if someone must have been – rough with it.’’ Again their eyes met – startled, questioning, apprehensive. For a moment neither spoke nor stirred. Then Mrs. Hale, turning away, said brusquely: ‘‘If they’re going to find any evidence, I wish they’d be about it. I don’t like this place.’’ ‘‘But I’m awful glad you came with me, Mrs. Hale.’’ Mrs. Peters put the birdcage on the table and sat down. ‘‘It would be lonesome for me – sitting here alone.’’ ‘‘Yes, it would, wouldn’t it?’’ agreed Mrs. Hale, a certain determined naturalness in her voice. She had picked up the sewing, but now it dropped in her lap, and she murmured in

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a different voice: ‘‘But I tell you what I do wish, Mrs. Peters. I wish I had come over sometimes when she was here. I wish – I had.’’ ‘‘But of course you were awful busy, Mrs. Hale. Your house – and your children.’’ ‘‘I could’ve come,’’ retorted Mrs. Hale shortly. ‘‘I stayed away because it weren’t cheerful – and that’s why I ought to have come. I’’ – she looked around – ‘‘I’ve never liked this place. Maybe because it’s down in a hollow and you don’t see the road. I don’t know what it is, but it’s a lonesome place, and always was. I wish I had come over to see Minnie Foster sometimes. I can see now’’ – She did not put it into words. ‘‘Well, you musn’t reproach yourself,’’ counseled Mrs. Peters. ‘‘Somehow, we just don’t see how it is with other folks till – something comes up.’’ (p. 12)

Mrs. Hale’s self-reproach, her sense that she could and should have done more to reach out to Mrs. Foster and alleviate her isolation and despair, leads to what we could call the ‘‘tort law’’ reading of the narrative – the idea that the murder could have been prevented by a less negligent fulfillment of the duty of care that Mrs. Hale and Mrs. Peters owed to Mrs. Foster as a neighbor and fellow community member. Mrs. Hale’s guilt-feeling is a recognizably human emotion, of course: in the wake of a death, it is common to think of, and to feel a sense of guilt about, the missed opportunities for connection or support, opportunities which are now irrevocably lost. And while it is conceivable that a more active, involved neighborliness on her part might have prevented the crime from occurring, and thus understandable that she might feel a burden of moral or psychological responsibility, it is also plain that her sense of responsibility is gendered: if Mr. Wright had murdered his wife, it is doubtful that there would have been talk of the failure of the men in the community to comport themselves toward him in a more neighborly or fraternal manner. Women, though, are expected to be in community, and to care. In this connection, one could read the middle paragraph of the abovecited passage as an allegory of the trajectory of the poetics of the story and an enactment of the work of Carol Gilligan avant la lettre: the text founds itself in the ‘‘determined naturalness’’ of social realism, but its ethos of care – an ethos that is gendered – drops it down into a more ethically authentic register, which inflects the orientation and structure of the genre and leads the women in the story, and the implied author, to speak in ‘‘a different voice.’’ (An authenticity denoted linguistically by the idiomatically apt grammatical incorrectness of the verb form in Mrs. Peters’ reply: ‘‘I stayed away because it weren’t cheerful.’’) This reading of the text as telling the story of the emergence of a different voice, and of a different ethos and

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framework for justice, helps us see and understand guilt as a gendered structure of feeling. The editors ask us what the story tells us about who should be our judges, and why; a partial answer, here, is that gender matters. This response leaves open the question of the relationship between gender and sex, that is, the question whether the ‘‘difference’’ the story uncovers is referable to nature, culture, or both. To an extent, Mrs. Hale’s expectations of herself, her sense of a duty of care, can be viewed as self-determined and adaptive, the manifestation not just of a form of sociability but of an existential need to find the support necessary to survive and endure patriarchal oppression. Mrs. Hale feels the peril of Mrs. Wright’s aloneness because it is a structural vulnerability of existence in their milieu. Yet her feeling of guilt, like the duty of care, can also be read as the expression of another, more insidious, dimension of patriarchal hegemony. In this view, the sense of neighborly responsibility, and thus of culpability, enacts a self-policing, an internalization of the structures of oppression. That is, one could say that as a result of their cultural conditioning the women represented in the story have internalized a discipline that perversely makes them responsible for preserving the order of their own oppression. In this account, Mrs. Hale’s self-reproach is nominally about her failure to act as a good neighbor to Mrs. Wright, but that feeling of guilt, structurally, is a cultural formation designed to forestall women’s agency, to curtail their assertiveness and aggressiveness – especially any expressions of it that might be directed toward patriarchal structures. Guilt thus functions, here, as a form that takes women’s aggression and directs it inward, toward themselves, and finds expression in the language of selfreproach, such that a woman, like Mrs. Hale, will feel pressure to misprise the external, structural forces of patriarchy and read them instead as markers of her own insufficiently strong will and internal locus of control, in other words, of the weakness of her sex – or to put it differently, the mark of her sin.

THE VERGE I would suggest that Mrs. Hale’s guilt-feeling has another motivation and function as well: to deflect attention away from the crime and screen her identification not just with Mrs. Wright and thus with the murder, but of what the murder means. Here it is worth noting how her feelings of selfreproach, in the above, echo an identical expression in the early moments of

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the story, when she arrives at the house and is momentarily halted by her feeling of guilt over never having visited Mrs. Wright: Even after she had her foot on the doorstep, her hand on the knob, Martha Hale had a moment of feeling she could not cross that threshold. And the reason it seemed she couldn’t cross it now was simply because she hadn’t crossed it before. Time and again it had been in her mind. ‘‘I ought to go over and see Minnie Foster’’ – and she still thought of her as Minnie Foster, though for twenty years she had been Mrs. Wright. And then there was always something to do and Minnie Foster would go from her mind. But now she could come. (p. 2)

It was more than an absence of good cheer in the Wright household that kept Mrs. Hale in abeyance all those years. For her, to enter the space of Mrs. Wright’s life is to cross a ‘‘threshold,’’ a threshold that she feels as apprehensive about crossing at the beginning of the story as she has for twenty years. She is not alone. If when Mrs. Peters does ultimately ‘‘rush forward’’ to take possession of the box containing the body of the dead canary, in the climactic closing moments of the story, she then freezes – ’’[but] there she broke – she could not touch the bird’’ (p. 17) – it is because the action represents a transgressive act of collusion in a crime that has resonances and repercussions that reach well beyond the confines of Mrs. Wright’s kitchen and into the space and structure of the social imaginary to which she belongs. It is a threshold that she can bring herself up to but not across, or at least not actively. She is on the verge – but, as the sheriff’s wife, she is also, as she says, ‘‘married to the law’’ (p. 17). Mrs. Hale is not, and crosses that threshold, first, when she reworks the quilt and, later, in the final moments of the story, when she steps in and does what Mrs. Peters, frozen in place, ‘‘helpless, foolish,’’ could not do: There was the sound of a knob turning in the inner door. Martha Hale snatched the box from the sheriff’s wife, and got it in the pocket of her big coat just as the sheriff and the county attorney came back into the kitchen. (pp. 17–18)

But even as she, like the implied author, crosses the threshold of sympathetic identification and into action, she suppresses the signs of that identification, much as Glaspell represents herself, through the textually selfreflexive actions of Mrs. Hale, in the act of at once representing and suppressing the signs of trauma, of producing a lexical surface that is compulsively ordered, complete, and integrated. Here, judgment, narration, transgression, and suppression are one. Like the compulsion that impels Mrs. Hale to rework the sewing of the quilt, the action of taking possession of the body of the canary is overdetermined: on one level, the imperfections

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of the quilt intrude upon her compulsive need for order and completeness – a repetition compulsion that the text reproduces in its own structure, and that is arguably symptomatic of an anxiety issuing from a guilt-feeling that has its etiology in a construction of gender; on another level, she is suppressing the signs that inculpate Mrs. Wright; and on yet another level, she is concealing her identification with Mrs. Wright and her understanding of the crime’s significance. If Mrs. Wright crosses a threshold of action, of violence against patriarchy, Mrs. Hale and Mrs. Peters, like Glaspell, cross a threshold of identification, in a double sense: they identify not only the signs of Mrs. Wright’s traumatic experience, which leads them to an identification with her condition and ultimately to collusion, but also what the crime that Mrs. Wright has committed signifies. In the socio-historical context both of the story and of its composition, the killing of Mr. Wright is not just a murder – the transgression of a commandment – nor even the murder of a man by a woman, but the murder of a husband by his wife; as such, it represents a direct, fatal confrontation not just with patriarchy, but also, I would argue, with the sacred, religious imaginary that undergirds it. In other words, the murder of Mr. Wright symbolizes the death of God; it is the second trauma in the story. The suppression of evidence, both in the story and in the narration of the story, marks an effort at once to remove the signs that inculpate Mrs. Wright and to contain the effects of the murder. Glaspell’s meticulous, compulsive, self-reflexive attentiveness to form calls attention to itself and to its complicity with the at once transgressive and sympathetically integrative actions of Mrs. Hale; but it has another performative dimension as well, one that is oriented toward coming to terms with the resonances and repercussions of the murder in the symbolic economy of the text’s social imaginary: by offering a text that conforms to the narrative conventions of realism, with respect both to its structure and lexical surface, Glaspell enacts a form of reassurance that the symbolic energies released by the murder – that is, by the death of God – can be countenanced within existing forms, that this radical, violent confrontation with the patriarchal imaginary need not signal a rupture with the prevailing conventions for structuring and representing the real, in narrative as in law. It preserves the form of the nomos. I recognize that this reading of the symbolic significance of the murder of Mr. Wright can be hard to credit. It is a bit – well, melodramatic.15 Why does the murder of a farmer by his wife in rural Iowa signify the death of God? However, I would argue that we can verify the claim, both with internal evidence and by reading A Jury of Her Peers against the backdrop

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of The Verge. With respect to the internal evidence, two elements are important. First, it is telling that the language used to describe Mrs. Hale’s compulsive aversion to incompleteness echoes the Christian confessional – the prayer for forgiveness for ‘‘things done and left undone’’ [emphasis added]. This is hardly a surprise, given the historical setting of the story and of its composition; indeed, it would be surprising if there weren’t any traces of the Judeo-Christian imaginary in the construction of the women’s guilt. The religious sanction lends that guilt much of its depth, force, and effectiveness as a structure. To challenge the patriarchal social imaginary is to take on not just the law, but the Law. The ‘‘queer’’ feeling that permeates the text is the second indication that the action of the story transpires in the domain of the sacred, religious imaginary. The word ‘‘queer’’ is common in the lexicon of late nineteenth-, early twentieth-century American literature. It appears, in various forms, no fewer than eight times in the text and reveals an essential dimension of the structure of feeling out of which the text emerges. When Mr. Hale is asked, at the beginning of the story, to describe how Mrs. Wright looked when he saw her the day before, he says, ‘‘she looked – queer.’’ The adjectival form of the word appears three times in the narration of the scene of the women’s discovery of the unevenness of the sewing in the quilt, most notably in the account of how the discovery makes Mrs. Hale feel: One piece of the crazy sewing remained unripped. Mrs. Peters’s back turned, Martha Hale now scrutinized that piece, compared it with the dainty, accurate sewing of the other blocks. The difference was startling. Holding this block made her feel queer, as if the distracted thoughts of the woman who had perhaps turned to it to try and quiet herself were communicating themselves to her. (p. 11)

The ‘‘queer’’ feeling returns with dramatic force, in its final appearance in the text, in the scene in which Mrs. Hale’s self-reproach over her failure to fulfill her duty of care toward Mrs. Wright reaches its self-recriminatory climax: The picture of that girl, the fact that she had lived neighbor to that girl for twenty years, and had let her die for lack of life, was suddenly more than she could bear. ‘‘Oh, I wish I’d come over here once in a while!’’ she cried. ‘‘That was a crime! Who’s going to punish that?’’ ‘‘We mustn’t take on,’’ said Mrs. Peters, with a frightened look toward the stairs. ‘‘I might’a known she needed help! I tell you, it’s queer, Mrs. Peters. We live close together, and we live far apart. We all go through the same things – it’s just a different kind of the same thing! If it weren’t – why do you and I understand? Why do we know – what do we know this minute?’’ (p. 16)

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Because the word has a narrower range in our contemporary context, it can be hard to pick up on the resonances it has in the historical context of the story – to know what it is that Mrs. Hale and Mrs. Peters know immediately. In the nineteenth and early twentieth century, ‘‘queer’’ commonly connotes the uncanny, the felt-presence of the sacred in the secular. At the time when Glaspell is writing, that presence is residual, but not distant; indeed, I would argue that it suffuses the space of the story and accounts for the extraordinary tension that one feels in it. Glaspell represents and communicates the sense of a space shot through with the signs and psychic energy of trauma, on multiple, interrelated levels; it carries the charge not just of Mrs. Wright’s trauma and of the scene of a recent crime – of a kill – but of the taboo. Doris Lessing, in her introduction to Tolstoy’s The Kreutzer Sonata, speaks to the difficulty that contemporary, secular readers can have in seizing the wrenching emotional and psycho-spiritual reverberations of the death of God in the nineteenth century. It is hard for us now to understand this, unless it is transposed into political terms, but people in the nineteenth century went through torments over losing faith, lacking faith, longing for faith. I myself met, when a girl, survivors of that struggle, much battered by the experience. Now, looking back, we may hear, louder than any other voice, Matthew Arnold’s ‘‘melancholy, long, withdrawing roar’’ – the loss of faith in God. (p. xiv)

It is telling that Lessing describes the sufferings of those who were coming to terms with what it meant for them to live in a secular age as ‘‘torments,’’ and that she casts them as ‘‘survivors’’ of a battering. We recognize that trauma often provokes a crisis of faith, a loss of confidence in the integrity of the conceptions (for Cover, the narratives) according to which we orient and understand experience. This can happen to the individual, as to a civilization as a whole. (The Book of Job is perhaps the locus classicus of the former, in the Western tradition; the impact of the horror of World War I upon Western European faith in the project of its civilization is commonly cited as example of the latter.) But as Lessing’s observation suggests, the loss of the ground of faith can itself be traumatic, not just a secondary effect of a trauma. This is the point at which it is especially valuable to read A Jury of Her Peers against the backdrop of The Verge. For that play, which, as I have indicated, Glaspell writes just four years after A Jury of Her Peers, externalizes her dual concern with, on the one hand, the challenge of confronting patriarchy, and on the other, the repercussions of rupture with the Judeo-Christian imaginary. Moreover, the text makes explicit that

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Glaspell understands the challenge to be a challenge of form.16 But whereas in A Jury of Her Peers Glaspell works to contain the energies of the problematic within existing forms and stays within the representational domain of realism, in The Verge she breaks with convention and channels those energies into a new, different form, leaving realism for the modernist mode of expressionism. To speak of her as moving toward a new form raises the question of the significance of the genre shift, here, from narrative to drama. This question, in turn, returns us to the question of the significance of the move from Trifles to A Jury of Her Peers. What does Glaspell mean when she says, in the passage cited by Ben-Zvi, that she ‘‘had meant to do it [the story of the Hossack murder] as a short story, but the stage took it for its own?’’ Was the decision to give form to the story first as a play driven by the contingencies of her personal history (i.e., her involvement with The Provincetown Players), or is there something about drama as a form that compels Glaspell in this instance? What difference does the form make? A more far-ranging analysis would take up the questions of genre that a comparative reading of Trifles and A Jury of Her Peers raises. We have limited ourselves, here, to foregrounding some of the characteristics of the story’s form, in the context of Cover’s claims about the significance of narrative for legal judgment. (Cover’s concept of narrative is arguably diffuse enough to encompass drama and lyric poetry, too.) Though The Verge obviously needs to be read as a play, in my view the stylistic concerns and thematic elements that it makes visible – and that I argue it shares with A Jury of Her Peers – can be observed without developing the genre differences between the two texts. Like A Jury of Her Peers, The Verge has at its center a woman, Claire Archer, who is thought to suffer from a fragmented consciousness that is read as symptomatic of trauma. Her husband, Harry, tells her that her ‘‘nerves are a little on the blink’’ (p. 83). She is also described as ‘‘troubled’’ (p. 71) and more pointedly, as ‘‘hysterical’’ (p. 71); indeed, Harry, feels that she ‘‘needs something to tone her nerves up,’’ and, to that end, has arranged for a neurologist, Charlie Emmons, who, he says ‘‘fixed up a lot of people shot to pieces in the war’’ (p. 65), to come by and visit the Archer household. Similarly, as in A Jury of Her Peers, the central figure commits a murder: in the closing moments of the play, Claire strangles her would-be lover, Tom. But there are significant differences between the two texts. First, the social milieu is that of upper class, establishment New England, not the rural Midwest: as her interlocutors remind Claire, she is a descendent of a distinguished lineage of ‘‘teachers and preachers’’ and ‘‘of the men who

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made the laws that made New England’’ (p. 64); her husband describes her as ‘‘an intellectual woman’’ (p. 66). Claire is keenly aware of her ancestry and of what it signifies – and has self-consciously defied and rejected the expectations both of her class and of her gender: she not only divorced her first husband, whom she describes as a ‘‘stick-in-the-mud artist’’ (p. 69), but also, more shockingly still, renounced the expectations of motherhood and left the rearing of the daughter from her first marriage, Elizabeth, to her daughter’s Aunt. As the judgment of her sister, Adelaide, makes plain, Claire pays a price for these expressions of autonomy: ‘‘A mother who does not love her own child! You are an unnatural woman, Claire’’ (p. 84). To which Claire smartly replies, ‘‘[w]ell, at least it saves me from being a natural one’’ (p. 84). Second, unlike Mrs. Wright, who never appears physically in the story and whose speech is only reported second hand by Mr. Hale, Claire is present throughout and drives the dialogue. Moreover, she not only engages the men in the story but directly contests their reading of her as a troubled, nervous, hysterical woman. As she makes plain, she understands her suffering to be the consequence and expression of the spiritually suffocating effects of the norms and conventions of the social imaginary of her milieu, and she has self-consciously dedicated herself to breaking free, to finding or creating a new form of life: HARRY: (going on with his own entertainment) Explain that this is what came of the men who made the laws that made New England, that here is the flower of those gentlemen of culture who – DICK: Moulded the American mind! CLAIRE: Oh! (it is pain) HARRY: Now what’s the matter? CLAIRE: I want to get away from them! HARRY: Rest easy, little one – you do. CLAIRE: I’m not so sure – that I do. But it can be done! We need not be held in forms moulded for us. There is outness – and otherness. HARRY: Now, Claire – I didn’t mean to start anything serious. CLAIRE: No; you never mean to do that. I want to break it up! I tell you, I want to break it up! If it were all in pieces, we’d be (a little laugh) shocked to aliveness (to DICK) – wouldn’t we? There would be strange new comings together – mad new comings together, and we would know what it is to be born, and then we might know – that we are. Smash it. (her hand is near an egg) As you’d smash an egg. (she pushes the egg over the edge of the table and leans over and looks, as over a precipice) HARRY: (with a sigh) Well, all you’ve smashed is the egg, and all that amounts to is that now Tom gets no egg. So that’s that. (pp. 64–65)

There are many passages like this one in the play, and they make visible the third significant difference between the two texts: in The Verge, the

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challenge of confronting patriarchal structures is explicitly and repeatedly named as a problem of form and creativity, for Claire as for the text itself.17 Claire indicates that she married her second husband, Harry, an aviator, ‘‘because I thought he would smash something’’ (p. 69), but she has been disappointed by him, too, as she was by her first husband; as she says, ‘‘it didn’t take us out’’ (p. 69), and more pointedly, in the above, ‘‘you’ve gone dead in the form in which you found yourself.’’ Not one to let the disappointments of the marriage plot foreclose her development, Claire has channeled her energies into horticultural experiments: the ‘‘Breath of Life,’’ is the name of one of the plants she invents; ‘‘Edge Vine,’’ which she destroys at the end of Act I, is another. She literally creates new forms of life; indeed, it is made clear that she understands this as a project of form, and that we are to do so as well. When, at the end of the play, her assistant Anthony looks at the Breath of Life, he says, ‘‘[t[he form is set’’ (p. 96). Similarly, the family friend, Dick, says, ‘‘[i]t’s quite new in form. It – says something about form’’ (p. 96). These observations set the stage for Claire’s own account of the flower, which comes in the form of a poem she utters in response to Tom, who hopes that the achievement of having brought this new form of life into being will release her from her torment and free her to leave with him for India as his lover: TOM: Can’t this help you, Claire? Let this be release. This – breath of the uncaptured. CLAIRE: (and though speaking, she remains just as still) Breath of the uncaptured? You are a novelty. Out? You have been brought in A thousand years from now, when you are but a form too long repeated, Perhaps the madness that gave you birth will burst again, And from the prison that is you will leap pent queerness To make a form that hasn’t been – To make a person new. And this we call creation. (very low, her head not coming up) Go away! (p. 96)

There is much to unpack, here. For instance, if space allowed it would be interesting to develop the meaning of ‘‘pent queerness’’ in the text. (Claire’s creative efforts are repeatedly described by the men around her as ‘‘queer business’’ (e.g., p. 66), and there is good reason to read her as a ‘‘queer’’ figure, in the contemporary sense.) In the context of our reading of A Jury of Her Peers, there are two points to make. First, much as the writing of the story not only mirrors but ties in to the writing in the story, it is similarly clear, in The Verge, that the composition of the play parallels Claire’s

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efforts to break from tradition and create new forms; they share the same declarative poetics. This commonality surfaces explicitly in the following exchange between Claire, Tom, and her daughter – particularly in the stage directions, at the end: ELIZABETH: (in her manner of holding the world capably in her hands) Now let’s talk of something else. I hadn’t the least idea of making mother feel badly. CLAIRE (desperately) No, we’ll go on. Though I don’t know – where we’ll end. I can’t answer for that. These plants – (beginning flounderingly) Perhaps they are less beautiful – less sound – than the plants from which they diverged. But they have found – otherness. (laughs a little shrilly) If you know – what I mean. TOM: Claire – stop this (To HARRY) This is wrong. CLAIRE: (excitedly) No; I’m going on. They have been shocked out of what they were – into something they were not; they’ve broken from the forms in which they found themselves. They are alien. Outside. That’s it, outside; if you – know what I mean. ELIZABETH: (not shocked from what she is) But of course, the object of it all is to make them better plants. Otherwise, what would be the sense of doing it? CLAIRE: (not reached by ELIZABETH) Out there – (giving it with her hands) lies all that’s not been touched – lies life that waits. Back here – the old pattern, done again, again and again. So long done it doesn’t even know itself for a pattern – in immensity. But this – has invaded. Crept a little way into – what wasn’t. Strange lines in life unused. And when you make a pattern new you know a pattern’s made with life. And then you know that anything may be – if only you know how to reach it. (this has taken form, not easily, but with great struggle between feeling and words). (pp. 76–77)

The pronoun, ‘‘this,’’ in the last parenthetical comment, is self-reflexive: it refers at once to Claire’s attempt to find language to describe her efforts to create new forms, and to the text’s own formal and linguistic effort. These aren’t stage directions so much as authorial notes; indeed, what is striking about this doubling in the pronoun reference is the intimacy it creates between Claire’s voice and the narrative voice of the implied author. This closeness, this drawing-near, is of a piece with a second dimension of the project of form, both in the text and of the text—the sense that the experimentation with form signals a rupture with God. It is a concern that Claire’s daughter names directly: ELIZABETH: You know, something tells me this is wrong. CLAIRE: The hymn-singing ancestors are tuning up. ELIZABETH: I don’t know what you mean by that mother, but – CLAIRE: But we will now sing, ‘Nearer, my God, to Thee: Nearer to –’ ELIZABETH (laughingly breaks in) Well, I don’t care. Of course you can make fun at me, but something does tell me this is wrong. To do what – what – DICK: What God did? ELIZABETH: Well-yes. Unless you do it to make them better – to do it just to do it – that doesn’t seem right to me. (p. 77)

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This exchange comes shortly before the end of Act I, which ends with Claire saying to Tom, ‘‘O-h. How good I feel! Light! (a movement as if she could fly) Read me something, Tom dear. Or say something pleasant – about God. But be very careful what you say about him! I have a feeling – he’s not far off’’ (p. 78). This passage, in turn, sets the stage for the climactic, final scene of the play, at the end of Act III, where Claire, who has just strangled her would-be lover to death and fired a revolver in the air, expires into madness with Anthony, her dutiful greenhouse assistant, by her side. ANTHONY: Miss Claire! You can do anything – won’t you try? CLAIRE: Reminiscence? (speaking the word as if she has left even that, but smiles a little) (ANTHONY takes Reminiscence, the flower she was breeding for fragrance for Breath of Life – holds it out to her. But she has taken a step forward, past them all.) CLAIRE: Out. (as if feeling her way) Nearer, (Her voice now feeling the way to it.) Nearer – (Voice almost upon it.) – my God, (Falling upon it with surprise.) to Thee, (Breathing it.) Nearer – to Thee, E’en though it be – (A slight turn of the head toward the dead man she loves – a mechanical turn just as far the other way.) a cross That (Her head going down.) raises me; (Her head slowly coming up – singing it.) Still all my song shall be, Nearer, my – (Slowly the curtain begins to shut her out. The last word heard is the final Nearer – a faint breath from far.) CURTAIN (pp. 100–101)

That the play closes with an invocation of the Christian hymn, ‘‘Nearer my God to Thee,’’ comes as no surprise. There are several other allusions to it in the play, along with many, direct verbal indications that the project of form, in life as in literature, is a matter of finding a way to reconcile, on the one hand, radical rupture with patriarchy and tradition, and on the other, a yearning for some form of continuity with the Judeo-Christian imaginary. It is understood that it is a project that can only suffer shipwreck – or rather, that it already has. If the hope is that, as Tom says to Claire, ‘‘things may be

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freed by expression’’ (p. 86) – a bald statement of the text’s expressionist poetics – that hope is accompanied by a keen sense, as Elizabeth articulates, that Claire’s project of creating new forms marks a transgression, a dangerous usurpation and dislocation of the locus of originality in the order of creation; she is playing God. Elizabeth’s instincts are sound; what she doesn’t perceive, however, is that, for Claire, the displacement – the death of God – has already taken place. The sense of the sacred, of God, is still felt, much as one senses the residual presence of the noumenal throughout the form of A Jury of Her Peers. God is near. But Claire’s incantation of that ‘‘nearness’’ is an ironic expression of melancholy, the unfinished work of mourning. There is no question of a return to the old form; but there is a sense of the magnitude of what has been left behind, and with it, a question of whether the new forms can equal the reach and resonance of the old – of whether they can come near. Reading A Jury of Her Peers against the backdrop of The Verge helps make visible not only that Glaspell’s engagement with form is highly selfconscious and self-reflexive, but that it represents an attempt to come to terms both with the traumatic sufferings and injustices of patriarchal oppression, and with the potential repercussions, in respect of the JudeoChristian imaginary and its forms, of an abolitionist confrontation with patriarchal structures. This latter dimension of Glaspell’s poetics can be hard to see in A Jury of Her Peers, unlike The Verge, and for good reason; the narrative is overdetermined. The form of the text registers the crosspressures of a compositional act that offers, at once, a representation of trauma; a sympathetic, integrative, and politically engaged gesture of restorative justice; and a form of reassurance that the problem of judgment that the story stages can be expressed (and thus contained) within the logic of the dominant narrative norm – that rupture with the sacred, religious imaginary does not jeopardize the textual integrity of the real, the form of the nomos. If space allowed, I would extend this reading of Glaspell’s text and its inclusion in Procedure by turning to a different section of the same chapter in which it appears, where the editors incorporate the Silkwood case. The case has uncanny parallels with A Jury of Her Peers, and it is possible to read it as enacting a kind of return-of-the-repressed within the textbook: once again, a woman stands accused of a crime; a contaminated house figures centrally as evidence; and the question of judgment plays out in the environment of a widespread and deeply seated societal anxiety, which the crime has tapped into, that apocalyptic energies (here, nuclear) are on the verge of being released. What makes it all the more intriguing, in terms

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of its relationship with A Jury of Her Peers and the framework of the inclusion of Glaspell’s text, is the way the Judeo-Christian imaginary erupts in the language of attorney Gerry Spence’s closing argument for the defense: ‘‘Who is Karen Silkwood? [y] I say she was a prophet’’ (pp. 1016–1017). His argument offers a rhetorical dramatization of what I have been arguing here: the turn to A Jury of Her Peers, in Procedure, is an expression of law’s turn toward literature, and more broadly narrative, a turn that needs to be understood, in part, as an attempt to come to terms with the ramifications for legal judgment of the displacement of the sacred, religious imagination by the secular imagination. It would be too strong to say that the inattention to form, in the reading instructions that the editors offer, is motivated, even unconsciously, by a desire to repress that awareness. But it is the case that when we read through the form of Glaspell’s text – when we read it as unmediated – we reproduce the blindness that the text describes and thus occlude an awareness of how its form records an effort to come to terms with the energies released by secularity. Some of what we can learn from literature about the problem of judgment passes through an understanding of form.

NOTES 1. In his early review of Procedure, William Eskridge hails ‘‘the revolutionary approach’’ of the casebook; he says, ‘‘t]he product of their [the editors’] collaboration is the most important procedure casebook, and one of the most important procedure books, in thirty-five years’’ (1989, p. 947). 2. Ravit Reichman calls attention to this principle and offers an insightful reading of how it operates the jurisprudence of Oliver Wendell Holmes Jr.: ‘‘The transformation of events from the client’s perspective to the lawyer’s statement suggests the existence of two very different narratives, neither of which directly contests the other. Beyond the opposition of prosecution and defense, these competing narratives – one personal, the other legal – underscore the existence in law not just of adversarial conflict, but of effacement. The elements of one story – indeed, the elements that make it a story in the first place – need to be edited out for the other, legal story to emerge. Those colorful details that make for good storytelling distract from the bigger legal picture, making it difficult to grasp – and thus to remember – law in the abstract. As Holmes sees it, strong opinions are built upon the force of pared-down legal reasoning, grounding their decisions in nothing more than bare necessities. The more one muddles law with description, he suggests, the less efficient and law-like it becomes. Law, in short, works best when it is spared of clutter’’ (p. 20). Peter Brooks (2001) makes a similar observation about law’s gesture of exclusion: ‘‘[t]he law is resolutely hermetic, by which I do not mean simply that its procedures and its language are arcane and effectively policed against intrusions

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from the vulgar and the language of daily life – though they are that. I mean that it is premised on the understanding that it can get on with its task only by a gesture of exclusion, which is at once a gesture of formalization: as Ferdinand de Saussure constituted modern linguistics by excluding anything other than the internal relations of the system, so the law as system excludes – must exclude – that which does not meet its internal criteria of the legal. Furthermore, the gesture of exclusion is matched by one of domestication: what it takes from other discourses it tames and subdues, so that concepts, motives, words from the world outside become legal terms of art, obediently defined by their internal reference within the legal arena’’ (pp. 227–228). 3. Peter Brooks (2006) raises a similar, broader question about law, judgment, and the form of narrative: ‘‘my question, then, is something like this: if the ways stories are told, and are judged to be told, makes a difference in the law, why doesn’t the law pay more attention to narratives, to narrative analysis and even narrative theory? [y] The narrative turn (a synonym would be: trope) has been made applicable to the law by such scholars as Anthony Amsterdam and Jerome Bruner, who maintain that in the law as in other domains, ‘much of human reality and its ‘facts’ are not merely recounted by narrative but constituted by it.’ Yes, but does the law know this? If it does, what kind of a knowing is it? Why can’t it be more explicit about the knowledge? [y] The argument for study of narrative in the law must be that it is not reducible to other kinds of speech and argument, and since it is not, it demands analytic consideration in its own right’’ (pp. 3, 5). 4. See Judith Herman: ‘‘The conflict between the will to deny horrible events and the will to proclaim them aloud is the central dialectic of psychological trauma’’ (p. 2). 5. As he writes, ‘‘the jurisgenerative principle by which legal meaning proliferates in all communities never exists in isolation from violence. Interpretation always takes place in the shadow of coercion’’ (1995a, ‘‘Nomos and Narrative,’’ p. 139) – a statement that echoes the memorable opening declarative sentence of ‘‘Violence and the Word,’’ the other essay for which he is perhaps best known in the field of law and humanities: ‘‘[l]egal interpretation takes place in a field of pain and death’’ (1995b, p. 203). 6. See for instance Wizner (1996): ‘‘Cover’s concept of law was messianic. It transformed the Jewish religious belief in the coming of the Messiah, the Jewish longing for the Messianic Age, into a secular political ideal, a progressive, universalistic vision of human progress leading to a world of equality and social justice, of peace and prosperity’’ (p. 10). For the significance of ‘‘Nomos and Narrative’’ in particular, see Stone (1993): ‘‘[y] Cover’s writings present the most sustained attempt to infuse the idea of Jewish law into American legal theory. Moreover, the publication of Cover’s work [i.e., of Nomos and Narrative] was a significant turning point in the growth of this new literature in American law and Judaism’’ (pp. 819–820). Judith Resnik, a co-author of Procedure, offers a valuable reading of ‘‘Nomos and Narrative’’ (2005). 7. Kahn points to the work of Carl Schmitt as a touchstone (2003, p. 177). 8. See also, Herman (1997): ‘‘People who have survived atrocities often tell their stories in a highly emotional, contradictory, and fragmented manner which undermines their credibility and thereby serves the twin imperatives of truth-telling

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and secrecy. When the truth is finally recognized, survivors can begin their recovery. But far too often secrecy prevails, and the story of the traumatic event surfaces not as a verbal narrative but as a symptom’’ (p. 1). 9. For example, see Camilleri (1990), Gemmette (2000), Schanfield (1997), and West (1997). 10. Ben-Zvi provides a detailed account of Glaspell’s coverage of the trial (pp. 41–48). 11. As cited by Jennifer Tuttle in her introduction to The Crux, another text by Gilman (Tuttle, 2002). 12. See Herman (1997). Herman says that in the first stage of recovery, the survivor learns that her condition has a name: ‘‘[t]he traumatized person is often relieved simply to learn the true name of her condition. No longer imprisoned in the wordlessness of the trauma, she discovers that there is a language for her experience’’ (p. 159). The second stage is marked by an integrative movement into narrative: ‘‘[i]n the second stage of recovery, the survivor tells the story of the trauma. She tells it completely, in depth and in detail. This work of reconstruction actually transforms the traumatic memory, so that it can be integrated into the survivor’s life story. [y] In the telling, the story becomes a testimony’’ (pp. 175, 181). 13. Robin West calls attention to the silencings in the story: ‘‘A Jury of Her Peers is about many things, but one thing it is about is silence, and silent protest. [y] And all this action takes place, of course, against the backdrop of a legal system which itself silences, by excluding, the views, perspectives, and voices of women from juries in properly constituted courts of law’’ (p. 199). 14. For insight into the relationship between trauma and narrative, see Carruth (1996). See also Brooks (2001), who writes about the challenge that traumatic experiences of incest present to narrative and to the law: ‘‘[i]nsofar as incest as incest takes traumatic form, it can be precisely that which is not recoverable as a remembered or narratable event, at which point the claim on historical veracity is not secured through establishing the event-structure of incest. On the contrary, when and where incest is not figurable as an event, that is where its very unfigurability testifies to its traumatic character. This would, of course, be ‘‘testimony’’ difficult to prove in a court of law, which labors under standards that determine the empirical status of an event. Trauma, on the contrary, takes it toll on empiricism as well’’ (p. 230). For the relationship between law, literature, and trauma, see Felman (2002). 15. In The Melodramatic Imagination, his landmark study of the realist novel, Peter Brooks identifies and defines melodrama as a cultural form that emerges with force in the novel in the nineteenth century in response to the loss of the Sacred [his capitalization], that is, the lived relation to myths and master narratives of (JudeoChristian) religious belief. ‘‘We may legitimately claim that melodrama becomes the principal mode for uncovering, demonstrating, and making operative the essential moral universe in a post-sacred era. [y] A form for secularized times, it [melodrama] offers the nearest approach to sacred and cosmic values in a world where they no longer have any certain ontology or epistemology’’ (pp. 15, 205). 16. Susanna Lee’s wonderful study (2006) of the relationship between secularism and narrative form in the nineteenth-century novel is a useful reference, here. 17. C. W. E. Bigsby (1993) notes this as well: ‘‘[t]he central character is a woman – Claire – who breeds plants which will transcend their origins, make some leap

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beyond the norm. It soon becomes plain that she plans much the same for herself, and what Claire sets herself to do in her own life Susan Glaspell tries to do with the form of the play’’ (p. 26).

ACKNOWLEDGMENTS I am grateful to Cathrine Frank and to the peer reviewers of this chapter for their thoughtful suggestions.

REFERENCES Bellah, R. (1967). Civil religion in America. Daedalus, 96(1), 1–21. Ben-Zvi, L. (2005). Susan Glaspell: Her life and times. New York, NY: Oxford University Press. Bigsby, C. W. E. (1993). Introduction. In C. W. E. Bigsby (Ed.), Plays by Susan Glaspell (pp. 1–31). New York, NY: Cambridge University Press. Brooks, P. (1995). The melodramatic imagination. New Haven, CT: Yale University Press. Brooks, P. (2001). Law, therapy, culture. Yale Journal of Law & the Humanities, 13(1), 227–237. Brooks, P. (2006). Narrative transactions – Does the law need a narratology? Yale Journal of Law & the Humanities, 18(1), 1–28. Camilleri, M. (1990). Lessons in law from literature: A look at the movement and a peer at her jury. Catholic University Law Review, 39, 557–594. Carruth, C. (1996). Unclaimed experience: Trauma, narrative, and history. Baltimore, MD: Johns Hopkins University Press. Cover, R. (1995a). Nomos and narrative. In M. Minow, M. Ryan & A. Sarat (Eds.), Narrative, violence, and the law: The essays of Robert cover (pp. 95–172). Ann Arbor, MI: The University of Michigan Press. Cover, R. (1995b). Violence and the word. In M. Minow, M. Ryan & A. Sarat (Eds.), Narrative, violence, and the law: The essays of Robert cover (pp. 203–238). Ann Arbor, MI: The University of Michigan Press. Cover, R., Fiss, O., & Resnik, J. (Eds.). (1988). Procedure. Westbury, NY: The Foundation Press. Eskridge, W., Jr. (1989). Metaprocedure. The Yale Law Journal, 98(5), 945–974. Felman, S. (2002). The Juridical unconscious: Trials and traumas in the twentieth century. Cambridge, MA: Harvard University Press. Freud, S. (1967). Moses and monotheism. New York, NY: Vintage Books. Gemmette, E. V. (2000). Filling in the silence: Domestic violence, literature and law. Loyola University Chicago Law Journal, 32, 91–112. Gilligan, C. (1993). In a different voice. Cambridge, MA: Harvard University Press. Glaspell, S. (1916). Trifles. Retrieved from http://www.vcu.edu/engweb/eng384/trifles.html. Accessed on October 18, 2011. Glaspell, S. (1917). A jury of her peers. Retrieved from http://www.learner.org/interactives/ literature/story/fulltext.html. Accessed on October 18, 2011. Glaspell, S. (1921). The verge. In C. W. E. Bigsby (Ed.), Plays by Susan Glaspell (pp. 57–101). Cambridge, UK: Cambridge University Press.

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Herman, J. L. (1997). Trauma and recovery. New York, NY: Basic Books. Kahn, P. (2003). Freedom, autonomy, and the cultural study of law. In J. Simon & A. Sarat (Eds.), Cultural analysis, cultural studies, and the law (pp. 154–187). Durham, NC: Duke University Press. Lee, S. (2006). A world abandoned by God: Narrative and secularism. Cranbury, NJ: Associate University Presses. Lessing, D. (2003). Introduction. In I. Kamen (Trans.), The Kreutzer Sonata (pp. x–xxii). New York, NY: Random House. Reichman, R. (2005). Making a mess of things: The trifles of legal pleasure. Law Culture and the Humanities, 1(1), 14–34. Resnik, J. (2005). Living their commitments: Paideic communities, courts, and Robert cover. Yale Journal of Law and the Humanities, 17, 17–53. Schanfield, L. (1997). The case of the battered wife: Susan Glaspell’s ‘‘Trifles’’ and ‘‘A Jury of Her Peers’’. Circles, 5, 69–82. Stone, S. L. (1993). In pursuit of the counter-text: The turn to the Jewish legal model in contemporary American legal theory. Harvard Law Review, 106(4), 813–894. Tuttle, J. (2002). Introduction to the crux. In J. Tuttle (Ed.), The crux (pp. 11–75). Newark, NJ: University of Delaware Press. West, R. (1997). Caring for justice. New York, NY: New York University Press. Wizner, S. (1996). Repairing the world through law: A reflection on Robert Cover’s social activism. Cardozo Studies in Law & Literature, 8, 1–14. Retrieved from http:// digitalcommons.law.yale.edu/fss_papers/1848. Accessed on October 20, 2011.

TALKING ABOUT THE EUROPEAN COURT: DISCOURSES OF JUDGING IN THE EUROPEAN UNION R. Daniel Kelemen ABSTRACT 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.

Other articles in this special issue focus on discourses of judging in the United States, specifically on discourses concerning the United States Supreme Court. This article takes us outside the United States to focus on the discourse of judging concerning what is arguably the most powerful court in Europe – the Court of Justice of the European Union (ECJ).1 While the US Supreme Court has long been the object of intense scrutiny by the media, politicians, academics, and the concerned public, the European Union’s

Special Issue: The Discourse of Judging Studies in Law, Politics, and Society, Volume 58, 139–157 Copyright r 2012 by Emerald Group Publishing Limited All rights of reproduction in any form reserved ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000058009

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(EU’s) Court of Justice has attracted relatively little attention outside scholarly journals until recently. Today that is changing. As the ECJ intrudes on ever more sensitive policy areas, it is attracting more scrutiny and in some circles more criticism. As the spotlight on the ECJ intensifies, it is increasingly evident that there are competing understandings of what it is precisely that the Court of Justice’s judges do and what role they play in the EU’s legal system. In other words, there are competing ‘‘discourses of judging’’ concerning the ECJ. At a very basic descriptive level, there is of course little disagreement over what the ECJ does. The ECJ makes rulings on cases brought before it – including requests for preliminary rulings from national courts, actions against member state governments for failure to fulfill their obligations, actions for annulment of EU laws, actions against EU institutions for failure to act and various direct actions brought by private parties against EU decisions. In making its judgments, the ECJ interprets European law (including both Treaty law and secondary legislation), acts to safeguard the enforcement of European law and to ensure respect for fundamental rights and other general principles of Community law. That much is uncontroversial. The sharp disagreements arise when it comes to assessing and understanding – in a deeper sense – the role that ECJ jurisprudence plays in the EU legal system and in the process of European integration more generally. When it comes to this more fundamental assessment of the ECJ’s role, there are serious disagreements between observers of the Court and also between ECJ and national judges themselves. There are many competing discourses concerning the ECJ, voiced by scholars, politicians, legal practitioners, and judges themselves. This study does not offer a comprehensive review of them. Instead, the article seeks to bring some order to, and offer some insight on, this discursive terrain by identifying and describing the four main lines of discourse concerning judging on the ECJ. Having identified these primary discourses of judging concerning the ECJ, we can then ask what impact – if any – these discourses have on ECJ jurisprudence and the process of legal integration more generally. The first two lines of discourse emanate from observers of the Court who share the view that ECJ jurisprudence has served to advance the project of European integration but who differ in their normative assessment of the Court’s activities. First, we can identify what we can call the integrationthrough-law discourse on the ECJ that highlights the role the Court has played as an engine of deeper European integration and generally takes a positive – or at least a neutral – view of these developments. Second, we can

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identify what we can call a judicial activism discourse, which agrees that the ECJ has played a key role as an engine of deeper European integration, but which takes a negative view of these developments. This discourse critiques the ECJ for engaging in judicial activism and overriding the will of democratically elected actors in the integration process. The second two lines of discourse emanate from judges themselves. First, the ECJ’s own legal positivism discourse claims that it (the ECJ) does not act as an engine of deeper integration, but merely as the guardian of the Treaties. According to this discourse, the ECJ treats the Treaties as a constitutional charter of the EU and acts as the supreme interpreter and guardian of that constitution, but does not go beyond the role prescribed by the drafters of the Treaty. Finally, some national constitutional courts, above all the German Federal Constitutional Court (GFCC) speak of the ECJ in different terms. In the past two decades, several national constitutional courts have challenged the primacy of the ECJ and positioned themselves as the ultimate holders of Kompetenz-Kompetenz – the competence to define the limits of the EU’s competence. They have maintained what we can term a national sovereignty discourse, positing that while the ECJ is the supreme authority on matters concerning European law, national constitutions remain the ultimate source of authority and national courts reserve for themselves the authority to adjudicate disputes concerning whether European institutions have exceeded the bounds of their authority. After describing each of these discourses we turn to the ‘‘So what?’’ questions. Does it matter how judges, lawyers, academics, politicians, and other observers understand the ECJ? Do discourses of judging concerning the ECJ have any actual impact on the operations of the Court? Is it possible – and even desirable – for competing discourses of judging on the ECJ to coexist over the long term? Or, is the existence of such divergent discourses about the ECJ problematic? I argue that the integration-through-law discourse promoted by analysts (and in some cases supporters) of the Court and the legal positivism discourse promoted by the Court itself have played an important role in constructing the field of European law. These discourses were not merely descriptions or interpretations of judging at the ECJ; as we discuss below, the discourses themselves had a causal impact on the construction of the EU’s judicial order. The national sovereignty discourse promoted by some national judges has also had a significant impact, but not the impact one might have expected. The ECJ relies heavily on national courts to act as its partners – or some might say agents – in the construction of European law. Because it relies so heavily on its relationship with national courts, the ECJ has acted

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to address concerns they raised since the 1970s. However, while the ECJ’s response to national courts’ sovereignty discourse has certainly influenced its approach to issues such as human rights and the supremacy doctrine, this national sovereignty discourse has not acted as a brake on European legal integration as one might have expected. The judicial activism discourse has had the most limited impact to date. This is ironic as the judicial activism discourse has been the most blatantly political of all the discourses. Promoters of this discourse have hoped to rein in the ECJ by highlighting and criticizing its supposed overreach, but there is no evidence that their criticisms have influenced the Court. This study does not seek to evaluate rival theoretical explanations for the process of European legal integration or to argue that ‘‘discourses of judging’’ have been the primary factors driving the development of the EU legal order. The aim is much more modest – simply to identify the primary discourses and to assess whether there is convincing evidence that they have had some causal impact on legal integration. I begin the article by describing the four main lines of discourse concerning judging on the ECJ – the integration-through-law discourse, the judicial activism discourse, the legal positivism discourse, and the national sovereignty discourse. Next, drawing on a range of empirical studies, I discuss what impact, if any, the coexistence of these competing discourses has had on the activities of the Court. In the final section, I conclude.

THE INTEGRATION-THROUGH-LAW DISCOURSE The integration-through-law discourse is built on a rich and nuanced academic literature, but we can summarize some of the main claims as follows: This perspective suggests that the ECJ has played a vital role as an engine of integration. By asserting the doctrines of direct effect and supremacy in its landmark rulings in the early Van Gend en Loos2 and Costa v. ENEL3 rulings, the Court formed the basis for the construction of a new legal order and paved the way for deeper European integration. Through its expansive jurisprudence and its strategic interactions with other EU institutions, member state governments, national courts, and private litigants, the ECJ transformed a set of international treaties into a constitution for a new quasi-federal European political system. Stuart Scheingold (1965, 1971) paved the way for this sort of analysis in his landmark works that applied a social scientific perspective to explore the role of the ECJ in the integration process. His studies of the role played by

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ECJ in the earliest stages of European integration found that the Court had not acted as a forceful policy maker pushing ahead the pace of integration. But his work framed the questions concerning the role of the ECJ in the process of integration that others would return to as the Court emerged as a more powerful actor in subsequent years.4 In 1981, University of Michigan Law Professor Eric Stein published a seminal article on the Court’s role in the construction of a transnational constitution. Stein began his article with what is probably the best known sentence in academic writing about the Court, ‘‘Tucked away in the fairyland Duchy of Luxembourg and blessed, until recently, with benign neglect by the powers that be and the mass media, the Court of Justice of the European Communities has fashioned a constitutional framework for a federal-type structure in Europe’’ (Stein, 1981, p. 1). Stein’s article went on to explore the relationship between the Court, the Commission, and national governments and the role played by the Court in quietly, but steadily advancing the frontiers of the Community’s constitutional development. A number of legal scholars and political scientists have built on this early work, treating the Court as both a legal and political actor whose rulings have played a key role in constitutionalizing the Treaties and advancing European integration. Joseph Weiler was a pioneer in this regard, highlighting the central role that European law played in propelling forward the process of European integration. His collaborative work with Mauro Cappelletti and Monica Seccombe coined the very term ‘‘integrationthrough-law’’ and encouraged scholars to draw parallels between the constitutionalization of the Treaties and the construction of the US federal system (Cappelletti, Seccombe, & Weiler, 1985). His later work emphasized that in the very periods when political leaders were mired in gridlock and unable to advance the integration project, the ECJ was able to step in to take up the mantle of deeper integration (see for instance Weiler, 1991, 1993). More recent landmark works by Stone Sweet (2000, 2004, 2010), Alter (1996, 2001), and Burley and Mattli (1993) developed more fine-tuned theoretical accounts of how the ECJ constitutionalized the Treaties in partnership with national courts. These scholars, and others such as Harlow and Rawlings (1992), Conant (2002), Cichowski (2006), and Kelemen (2011) highlighted the role that litigation brought by private parties plays in the construction of the EU’s legal order. The social science literature cited above does not take a strong normative stance on the ECJ’s activities: the literature demonstrates that the Court has played a powerful role in driving forward the process of European integration and explains how it has done this, but it is for the most part

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silent or neutral on the question of whether this process was normatively desirable. Nevertheless, as we discuss below, a growing body of literature by critical historians and sociologists, contends that the integration-throughlaw scholarship has a normative tinge to it and actually serves to support the project of European legal integration.

THE JUDICIAL ACTIVISM DISCOURSE The judicial activism discourse agrees with the integration-through-law discourse that the ECJ has played a central role in advancing European integration, but it offers an extremely negative normative assessment of this trend. For judicial activism critics, the ECJ is a kind of legal Frankenstein. This discourse suggests that the ECJ has stepped outside its proper bounds, that its self-aggrandizing rulings have sought to establish a quasi-federal constitutional political order, and more generally that it has acted against the wishes of the democratically elected governments that created it. Discourses critical of judicial activism are of course familiar to students of law and politics, particularly to students of American courts. Critics assert that when unelected judges ‘‘legislate from the bench’’ they substitute their will for that of elected representatives and subvert democracy. In the American context, Bickel (1962) called this the countermajoritarian problem. In the eyes of many critics, such judicial activism not only subverts the democratic process, it also influences substantive policy outcomes. Critics on the right accuse courts (most famously the Warren Court) of activism when they see them as making rulings that support a progressive social agenda. Many progressive critics in turn accuse courts of activism when they make rulings that support powerful economic interests or other conservative causes. Clearly, the term ‘‘judicial activism’’ is used often simply to attack judicial decisions that one side or the other does not like. But the reason the phrase resonates goes back to Bickel’s countermajoritarian problem and the notion that while courts have a role to play in safeguarding the constitution and protecting fundamental rights, they should be wary of substituting their will for that of the people’s elected representatives. In Europe, the pejorative catchphrase that embodies this critique is not ‘‘judicial activism’’ but rather ‘‘Le gouvernement des juges’’ (government of judges).5 As in the United States, in the European context, unease over an overweening judiciary has its roots in a version of the ‘‘countermajoritarian difficulty.’’ Traditional models of Parliamentary democracy in Europe envisaged a limited role for the judiciary. In this model, the people are the

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ultimate principal (Strøm, 2000, p. 267). The people delegate authority to their elected representatives in Parliament, who may in turn – subject to certain constraints – delegate authority to the executive (ibid., Lijphart, 1999). This traditional model was committed to the principle of legislative supremacy. Parliament embodied the democratic will of the people, and courts could not engage in constitutional review to overturn acts of Parliament or in any way engage in ‘‘lawmaking.’’ Courts had to limit themselves to the resolution of legal disputes. In the post-World War II era, the traditional legislative supremacy model was supplanted by a ‘‘new constitutionalism’’ across Europe (Shapiro & Stone, 1994; Stone Sweet, 2000). Reacting to the crimes committed by the Nazis and other democratically elected fascist regimes in the 1930s and 1940s, post-War European Democracies moved to limit parliamentary supremacy and to place greater emphasis on judicial protection of individual human rights. New constitutional courts were established in countries including Germany, Austria, Italy, France, and later in Portugal and Spain, and they grew in power with countries across Europe experiencing a steady judicialization of politics (Stone Sweet, 2000). And yet, despite the emergence of this new constitutionalism in Europe, traces of the traditional model of parliamentary supremacy remain and suggestions that activist judges are engaging in policymaking (Le gouvernement des juges) continue to resonate negatively. Politicians, academics, and other legal elites and stakeholders have sporadically accused the ECJ of engaging in activism or ‘‘government of judges.’’ In 1980, French President Vale´ry Giscard d’Estaing called on member states to work together to constrain the ECJ from making ‘‘illegal decisions.’’ He even suggested a court packing scheme that would allow the (then) four largest member states (Germany, France, the United Kingdom, and Italy) to appoint an additional judge to the Court (Rasmussen, 1986, pp. 354–356). In 1992, German Chancellor Helmut Kohl, himself an ardent backer of European integration accused the Court of activism by saying that the Court, ‘‘not only exerts its competences in legal matters, but goes far further. We have an example of something that was not wanted in the beginning. This should be discussed so that the necessary measures may be taken later.’’6 In the United Kingdom, Tory Eurosceptics regularly rail against ECJ activism, most prominently in the 1991 negotiations on the Maastricht Treaty and again in 1995 negotiations for the 1996 Intergovernmental Conference when the British unsuccessfully sought to introduce reforms to limit the jurisdiction of the ECJ and to allow a political body to veto its rulings (Alter, 2009, p. 130). Most recently, former German President

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Roman Herzog published an article with the title, ‘‘Stop the European Court of Justice’’ in which he assailed the ECJ for rulings that infringed on the core competences of member state governments and called for the establishment of a new, independent court to make decisions on the division of competences between the EU and member states (Herzog & Gerken, 2008). The first major academic critic of judicial activism by the ECJ was Danish law Professor Hjalte Rasmussen. In his 1986 book, On Law and Policy in the ECJ (Rasmussen, 1986), Hjalte Rasmussen broke with the prevailing orthodoxy (see discussion of the legal positivism discourse below) among scholars of EU law and suggested that the ECJ had not simply enforced the letter of the law as written in the Treaties but had rather engaged in judicial activism charting a pro-federalist course. Though the judicial activism discourse has not gained a major following in the scholarly community, academics specializing in EU law and politics do occasionally speak out criticizing ECJ activism. Recently, a string of highly controversial rulings affecting social policy and industrial relations (i.e., Laval,7 Viking,8 Luxembourg,9 Ru¨ffert10) has elicited an unprecedented level of criticism. Scholars such as Fritz Scharpf (2009) and Michelle Everson (2010) have criticized the Court for overreaching in these rulings, in ways that threaten European social models. Scharpf called on supporters of European integration to cast a more sceptical eye on the Court and to, ‘‘become critical of the anti-democratic effects of ‘integration through non-political judicial legislation’’’ (2009).

THE LEGAL POSITIVISM DISCOURSE There is a considerable overlap between the integration-through-law discourse and the legal positivism discourse, and many jurists and legal officials of other EU institutions who were themselves also academics have contributed to both discourses. The two discourses share the view that the Treaties form a constitutional charter of the EU, that the ECJ is the ultimate authority on the interpretation of the Treaties and of European law more generally. However, the two discourses differ in their assessment of the roles played by politics and law in the process of legal integration. The integration-through-law discourse treats European legal integration as a highly political process in which the ECJ interacts strategically with member states, litigants, and other legal elites to expand the scope of European law. By contrast, the legal positivism discourse promoted by the Court itself and

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by many legal scholars is mostly silent on politics. This discourse claims instead that the Court’s jurisprudence was, ‘‘merely using legal interpretation to work out the details agreed to in the Treaty of Rome’’ (Alter, 2010, p. 35). From this perspective the Court did not act strategically to promote an expansive reading of the Treaties and to render judgments designed to promote deeper European integration. Rather, all the court did was to faithfully interpret and apply the European Treaties and secondary legislation. This discourse is most evident in the text of the ECJ’s own rulings and in the academic writings of sitting or former Justices and other court officials. We can take for example some key passages from the ECJ’s landmark Van Gend judgment, in which the Court explained its approach to determining whether an Article of the Treaty of Rome could have direct effect.11 In essence, this decision launched the legal positivism discourse, so it is worth quoting at length: To ascertain whether the provisions of an international treaty extend so far in their effects it is necessary to consider the spirit, the general scheme and the wording of those provisions y . The objective of the EEC Treaty, which is to establish a Common Market, the functioning of which is of direct concern to interested parties in the Community, implies that this Treaty is more than an agreement, which merely creates mutual obligations between the contracting states. This view is confirmed by the preamble to the Treaty, which refers not only to governments but also to peoples y In addition the task assigned to the Court of Justice under Article 177, the object of which is to secure uniform interpretation of the Treaty by national courts and tribunals, confirms that the states have acknowledged that Community law has an authority which can be invoked by their nationals before those courts and tribunals. The conclusion to be drawn from this is that the Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. y It follows from the foregoing considerations that, according to the spirit, the general scheme and the wording of the Treaty, Article 12 must be interpreted as producing direct effects and creating individual rights which national courts must protect.12

In this passage, the Court insists that it is not engaging in an expansive, teleological reading of the Treaties in pursuit of some federal dream, but that, ‘‘the spirit, the general scheme, and the wording of the Treaty’’ clearly indicate that the Treaty was intended to have ‘‘direct effect’’ and to create rights for individuals. Similarly, in Costa v. ENEL, where the ECJ established

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the revolutionary doctrine of the supremacy of European law, while asserting that this doctrine was implicit in the text of the Treaty.13 The legal positivism discourse also dominated early academic studies of European law. Martin Shapiro famously characterized early legal scholarship in this vein as ‘‘constitutional law without politics’’ that, ‘‘presents the Community as a juristic idea; the written constitution as a sacred text; the professional commentary as a legal truth; the case law as the inevitable working out of the correct implications of the constitutional text; and the constitutional court as the disembodied voice of right reason and constitutional teleology’’ (Shapiro, 1980, p. 538). In fact, the separation between decisions of the ECJ and scholarship on those decisions was rather thin. The ECJ, the European Commission, and the European Parliament all worked to promote the landmark constitutional doctrines of European law. The ECJ launched information campaigns and invited national judges and lawyers to Luxembourg for training sessions on European law (Burley & Mattli, 1993). They started academic associations designed to promote the discipline of European law such as the Fe´de´ration Internationale pour le Droit Europe´en (FIDE) (Alter, 2009). The Commission helped finance new academic journals, conferences, University research centers and departments focusing on European law (M. Rasmussen, 2010, p. 650). Staff of the European Court, the European Commission, and legal officials from other EU institutions, along with legal practitioners in private practice who interacted with them, authored a substantial proportion of the articles in these newly founded European law journals (Schepel & Wesseling, 1997, p. 172). As we discuss below, recent work by historians, sociologists, and political scientists on the origins of the European ‘‘legal field’’ (Dezalay & Madsen, 2002; Vauchez, 2008b) emphasizes that the dominance of this approach in early legal scholarship on the Court was no coincidence, but was the result of a deliberate political strategy.

THE NATIONAL SOVEREIGNTY DISCOURSE The national sovereignty discourse is the discordant voice in the choir of European constitutionalism. The legal positivism discourse discussed above positions the ECJ as the ultimate authority on European law – the Supreme Court of Europe on all matters under its purview. While national constitutional courts have accepted most aspects of this discourse, including the ECJ doctrines of supremacy and direct effect, they have expressed certain qualifications regarding the supremacy of European law and the

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ECJ’s position as its supreme interpreter. Ultimately, these qualifications boil down to the issue known (from the German) as Kompetenz-Kompetenz: the question of who has the ultimate authority to determine which matters fall within the EU’s sphere of competence as opposed to national governments’ spheres of competence. Yes, national courts have accepted the principle that the ECJ is the ultimate legal authority on matters falling within the scope of European law. But this simply begs the question: who determines which matters are rightly subject to European law and which are purely national concerns? On this crucial question, a number of national constitutional courts have asserted that it is they and not the ECJ who has ultimate Kompetenz-Kompetenz. From its foundation, the EU’s legal system was designed to be dependent on cooperation between the ECJ and national courts. National courts were given the competence to apply European law in their national contexts. Rather than establishing an appellate system in which litigants could appeal decisions of national courts to the ECJ, Article 177 of the Treaty of Rome (establishing the Preliminary Ruling Procedure) left the power to refer cases to the ECJ in the hands of national judges. And even once cases were referred, the ECJ would continue to rely on national courts for the enforcement of its rulings. Thus, as Karen Alter (1996, 2001) has demonstrated, in order for the ECJ to successfully assert the doctrines of supremacy and direct effect and to position itself as the authoritative interpreter of European law, it was absolutely crucial for the ECJ to win the acceptance of national judges. Alter (1996, 2001), Weiler (1991), Burley and Mattli (1993), Slaughter, Stone Sweet, and Weiler (1998), and Stone Sweet (2004) offer insightful explanations of why national courts – over the course of the next 25 years – came to accept ECJ doctrines such as supremacy and direct effect. But the story is not simply one of gradual acceptance of these doctrines by national courts. Rather, as Craig and de Bu´rca (2008, p. 353) explain, ‘‘There is a continuing tension between national accounts of the character of Community law and the ECJ’s account.’’ National courts have accepted a version of the supremacy doctrine, but not quite the full-blown supremacy version the ECJ has in mind. National constitutional courts in many member states, including the Czech Republic, Denmark, France, Italy, and Poland, have qualified the supremacy doctrine, but such qualifications are most evident in Germany where the Federal Constitutional Court (Bundesverfassungsgericht-BVerfG) has been the most assertive in placing limits on the supremacy of European law.14 The tensions between the BVerfG and the ECJ date back to the 1970s. In its 1974 Solange15 (‘‘so long as’’) decision, the German court refused to

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accept the unconditional supremacy of European law. The BVerfG explained that while it generally recognized the supremacy of European law, it would not abandon its authority to safeguard the fundamental rights guaranteed by the German Constitution and that those fundamental rights would prevail over Community law in case of a conflict. The BVerfG explained that ‘‘so long as’’ there was the possibility of conflict between European legal norms and fundamental rights guaranteed in the German Constitution, it would continue to act as the guardian of those rights. The BVerfG relaxed this position somewhat in its 1987 Solange II16 ruling, but preserved its ultimate authority to act to protect fundamental rights. Tensions between the BVerfG and the ECJ over Kompetenz-Kompetenz came to a head in the German court’s 1993 Maastricht17 judgment, a case in which a private party had challenged the constitutionality of Germany’s ratification of the Maastricht Treaty. In this ruling, the BVerfG upheld the constitutionality of Germany’s ratification of the Maastricht Treaty, but the German court stated emphatically that it retained the authority to review whether European institutions (including the ECJ itself) were acting within the spheres of competence delegated to them in the Treaty. In other words, Community law would remain supreme within its proper bounds, but the BVerfG would have the ultimate say on whether European institutions were overstepping those bounds or in any way infringing the fundamental constitutional rights guaranteed by the German constitution. The German court revisited this issue again in its 2009 Lisbon18 decision, in a case which again challenged the constitutionality of Germany’s ratification of a major EU Treaty (the Treaty of Lisbon). Once again, the German court upheld the constitutionality of Germany’s participation in the Treaty but emphasized that Germany remained a sovereign state and that the German court, and not the ECJ, retained ultimate Kompetenz-Kompetenz. National constitutional court decisions concerning the supremacy doctrine constitute a significant discourse concerning the nature of the EU’s legal system – in effect a form of communication between national constitutional courts and the ECJ. While they have accepted the principle of supremacy of European law, national constitutional courts have rejected the notion that the Treaties form a new constitutional order and that the ECJ is the ultimate authority on the interpretation – and the boundaries – of that order. We can label the approach to supremacy expressed by the BVerfG (and other national constitutional courts) as a national sovereignty discourse. National courts have emphasized that national constitutions remain the ultimate source of authority on the basis of which governments have delegated certain, specified powers to the EU. Likewise, they emphasize

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that they remain the guardians of their national constitutions, and as such that they may intervene to safeguard those constitutions if organs of the EU, including the ECJ, overstep the bounds of their delegated authority.

SO WHAT? We have seen that there are divergent discourses concerning the ECJ. Some view the Court as rather heroic, others as nearly megalomaniacal. Not only do politicians, academics, and other observers understand the ECJ differently, even the ECJ and national courts do not agree precisely on how to understand the ECJ’s role. On core issues such as the question of supremacy, it seems as though the ECJ and national courts have managed to speak past one another, with each asserting that it is they who are the ultimate authorities concerning the scope of application of European law. Has the existence of such divergent discourses presented problems for the ECJ? Have the various discourses of judging concerning the ECJ had an impact on the activities of the Court and the development of the EU legal system more generally? Is it possible – and even desirable – for competing discourses of judging on the ECJ to coexist over the long term? The impact of these competing discourses is laced with ironies. First, the discourse which purports to be the most apolitical (the legal positivism discourse) has had the most significant political impact. The legal positivism discourse promoted by the ECJ itself and by legal scholars supportive of the Court has played a central role in constructing the field of European law. To a lesser extent, the same can be said of the integration-through-law discourse used by political scientists and social-scientifically oriented legal scholars. These discourses were not merely descriptions or interpretations of judging at the ECJ – the discourses themselves had an impact on the construction of the EU’s judicial order. In recent years, scholars exploring the early development of the Court have produced a rich empirical literature demonstrating the role that the proliferation of these academic discourses played in constructing the field of European law and lending legitimacy to the ECJ’s jurisprudence (Alter, 2009; Bailleux, 2010; Cohen, 2007; Cohen & Vauchez 2007, 2011; Rasmussen, 2008, 2010; Vauchez, 2007, 2008a, 2008b). This literature shows how legal entrepreneurs, including ECJ justices and advocates general, European Commission and European Parliament officials, pro-European scholars, and private practitioners actively promoted the development of the new academic discipline of European law that

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would endorse and legitimize the view that the Court was simply applying the spirit and wording of the Treaty. ECJ did not, and could not have, created European law or promoted European legal integration on its own. ECJ jurisprudence gained legitimacy and expanded in scope in large part because European institutions succeeded in promoting the emergence of a broader European legal field including an academic field of European legal studies – distinct from the field of international law – that endorsed the Court’s jurisprudence and its constitutionalist approach to the Treaties. As Morten Rasmussen (2010, p. 653) puts it, ‘‘The emergence of an academic field [of European law] independent from international law represented an important victory for the ‘constitutionalists’ and the large majority of new scholars in European law would promote the ‘constitutional’ paradigm and use the jurisprudence of the Court of Justice in national debates as proof of their ideas. The academic field of European law would play a key role in legitimizing the jurisprudence of the Court of Justice.’’ The second irony is that while the national sovereignty discourse invoked by national constitutional courts also has had a significant impact, it has not had the effect that one might have expected (or that national courts might have intended). With its qualifications of the supremacy doctrine and emphasis on enduring national sovereignty, one might assume that this discourse served as a shot across the bow to the ECJ. In other words, this discourse might have signaled to the ECJ that it should restrain its selfaggrandizement so as not to tread on the terrain jealously guarded by national courts. To date, however, this discourse has had largely the opposite effect, encouraging the ECJ to expand the scope of European law. After national constitutional courts, in particular the German Bundesverfassungsgericht, signaled their concern that the European legal system did not provide adequate safeguards for the fundamental rights guaranteed in national constitutions, the ECJ responded by developing its own jurisprudence on fundamental rights, drawing on the ‘‘collective constitutional traditions’’ of the member states.19 As for conflicts over supremacy and the question of Kompetenz-Kompetenz, there is no indication that national courts’ qualifications of supremacy have had any impact on ECJ jurisprudence. The ECJ continues to maintain the interpretation of supremacy it established in the 1960s, and given its continuing record of expanding the scope of European law, there is little indication that it has backed away from asserting the authority to adjudicate disputes concerning the boundaries of European law. Finally, perhaps the greatest irony is that the discourse that has been the most heated and aimed most directly at influencing the ECJ – the judicial

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activism discourse – has had the most limited impact to date. Though this discourse is the most politically charged and the most salient in the European media, there is no evidence that it has had a restraining effect on the activities of the ECJ. Despite occasional denunciations of its judicial activism, the ECJ continues to expand the scope of European law and to make highly controversial rulings in the face of such criticism. Proponents of this discourse who would like to rein in ECJ activism face a number of hurdles. First, these critics are not unified; they do not share a common program for what should be done to rein in the ECJ. Second, the structure of EU institutions – with its fragmentation of power and high hurdles for decision-making – makes it difficult for them to take action that might restrain the ECJ. And finally, critics of ECJ activism confront the fact that – whatever its faults – the ECJ remains the most trusted public institution in Europe (Kelemen, 2012). Eurobarometer surveys from 1999 to 2010 show that Europeans have higher levels of trust in the ECJ than in any other public institution included in the survey, including national parliaments, national governments, national justice systems, and national political parties (ibid.) While ‘‘trust’’ is not a perfect measure of public support, these survey results do suggest that the ECJ may actually enjoy higher levels of support than the national political actors that might attack it. The politicians accusing the ECJ of judicial activism are generally held in such low regard that the ECJ might actually curry favor with the public by standing up to them. Moreover, being criticized by powerful political actors and not bowing to them may also signal the ECJ’s strength, reaffirming the heroic narrative of the Court’s role in the construction of the European legal order.20

CONCLUSION Eric Stein was correct in saying that the ECJ was blessed with ‘‘benign neglect’’ in its early years (1981, p. 1). Because few people were interested in talking about the Court at that time, it was able to dominate the discourse about itself and to quietly encourage the spread of that discourse throughout the emerging ‘‘European legal field’’ (Dezalay & Madsen, 2002; Vauchez, 2007) that it helped create. Over time, as the scope of the EU has increased and European law has intruded on more and more sensitive policy areas, new discourses – many of them critical of the Court – have emerged. Today many people want to talk about the ECJ, and many of them do not have nice things to say. But by now, the ECJ is a robust

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enough institution to weather such attacks. If the ECJ is periodically attacked – from the Left or from the Right – for being activist, then it has good company in another powerful court across the Atlantic.

NOTES 1. The Treaty of Lisbon changed the name of the EU’s high court: the Court of Justice of the European Communities is now officially known as the ‘‘Court of Justice’’ – but informally we can still refer to it as the European Court of Justice or ECJ. The EU’s lower court, the Court of First Instance is now known as the General Court. The EU-level judiciary as a whole – including the ECJ, the General Court, the Civil Service Tribunal, and any lower courts that the EU might establish in the future are collectively referred to as the Court of Justice of the European Union (or CJEU). 2. Van Gend en Loos, Case 26/62 [1963] ECR 1. 3. Costa v. ENEL, Case 6/64, [1964] ECR 585. 4. For a review of other early works on the ECJ’s role in integration, see H. Rasmussen (1986, pp. 154–163). 5. The phrase was coined in a 1921 book by French law professor Edouard Lambert, Le gouvernement des juges et la lutte contre la le´gislation social aux EtatsUnis (1921). For an early query into whether the European Community was dominated by gouvernement des juges, see Colin (1966). For a more general discussion of the use of the term, see Davis (1987). 6. Helmut Kohl, ‘‘Chancellor Kohl Accuses the Court of Going Beyond its Competences: The ‘Paletta’ and ‘Boetel’ Cases,’’ Europe 5835, October 1992, p. 9 quoted in Starr-Deelen and Deelen (1996, p. 95). 7. Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetrefo¨rbundet and others [2007] ECR I-11767; C-346/06 Dirk Ru¨ffert v. Land Niedersachsen [2008] ECR I-1989. 8. C-438/05, International Transport Workers’ Federation and Finnish Seamen’s Union v. Viking Line ABP and Ou¨ Viking Line Eesti [2007] ECR I-10779. 9. C-319/06, Commission v Luxembourg [2008] ECR I-4323. 10. C-346/06 Dirk Ru¨ffert v. Land Niedersachsen [2008] ECR I-1989. 11. Direct effect provides that EU law creates rights for individuals that they can rely on directly within their own national legal systems. 12. See supra, note 2. 13. See supra, note 3. 14. See Lindseth (2010, pp. 166–187) and Craig and de Bu´rca (2008, pp. 353–373) for discussions of national courts’ approaches to the supremacy doctrine. On the German Court, see Dyevre (2011). 15. Internationale Handelsgesellschaft mbH v. Einfuhr-und Vorratstelle fu¨r Getreide und Futtermittel [1974] 2 CMLR 540. 16. Re Wu¨nsche Handelsgesellschaft [1987] 3CMLR 225. In Solange II the German court noted the steps the ECJ and other European Community institutions had taken to ensure the protection of fundamental rights, and explained that ‘‘so long as’’ the ECJ and other Community institutions provided for a protection of

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fundamental rights similar to that provided in the German constitution (Basic Law), it would not exercise its jurisdiction over fundamental rights in reviewing Community legislation. 17. Brunner v. The European Union Treaty (the ‘‘German Maastricht Decision’’), Cases 2 BvR 2134/92 and 2159/92 of October 12 1993, BVerfG 89, 155, [1994] 1 CMLR 57. 18. German Lisbon Decision, 30 June 2009, BVerfG, 2 BvE 2/08. 19. For overviews see Craig and de Bu´rca (2008, pp. 379–402) and Stone Sweet (2000, pp. 170–178). 20. In the US context, Lasser (1988) argues that unsuccessful attacks on the Supreme Court may signal to the public the Court’s strength.

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