Document Type
Article
Publication Date
11-2021
ISSN
0026-5535
Publisher
University of Minnesota Law School
Language
en-US
Abstract
Discussions of populism generally focus on politics. This Article identifies a related phenomenon in law. Judicial populism uses political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists that there are clear, correct answers to complex, debatable problems. It disparages the mediation and negotiation that characterize democratic institutions and rejects the messiness inherent in a pluralistic democracy. Instead, it simplifies the issues legal institutions address and claims special access to a true, single meaning of the law.
In this image, there is no room for legitimate disagreement. Writers in this vein often accuse those who disagree with them of bad faith or willful blindness. Deploying stock stories and familiar tropes, this rhetoric presents good judging as mostly a matter of using the correct method. It imagines away judges’ unavoidable participation in the production of law and relieves them of responsibility for the consequences of their actions. Because they focus on method, these stories and tropes can be deployed to whatever substantive ends a writer wants, while also disparaging those who acknowledge normative and practical concerns as activist elites imposing their preferences on the public. Judicial populism thus echoes the anti-pluralist, anti-institutionalist, and Manichean stance of its political cousin.
Not all who draw on populist reasoning are populists through and through.10 Populism provides tropes—standardized ways of acting and arguing—that people can utilize to differing ends and extents. Those tropes, moreover, have no special claim to legitimacy or acceptance; like any approach, they should be evaluated on their merits. In this Article, we show how populist tropes have made their way into, and even entrenched themselves in, legal theory. And we argue that the legal theory of a republican democracy should not accept, much less submit to, judicial populism.
Part I of this Article briefly sketches the most salient characteristics of political populism. Part II argues that public law adjudication and legal theory host an analogous, though previously unrecognized, judicial populism. In Part III, we survey three areas where judicial populism has become entrenched through extensive articulation in well-known theories: textualism, originalism, and unitary executivism. These theories exemplify judicial populist rhetoric, insisting on peculiar frames through which to see law, judging, and democracy.11 Part IV explores how those frames are constructed: specious claims to minimalism—of legal method and policy effect—work as a magic ticket out of the normative contestation that characterizes legal decision-making. A set of stock stories helps bolster claims to exclusive, unmediated access to the true meaning of the law that bypasses the institutions of democratic governance and places the judiciary above the fray of pluralistic debate. And misusing the familiar syllogistic argument form creates a veneer of certainty, setting up battle lines for a Manichean contest.
Disassembling the frame shows that, despite its claims, populism has no monopoly on legitimate legal methods and no special access to legal truths. Nor, as Part V explains, should a republican democracy want a theory that did. A republican democracy, we argue, should embrace judicial approaches that value its commitments and build on its strengths: pluralism, institutional mediation, deliberation, debate, and flexibility. Legal thinkers should reject judicial populism’s self-righteous claim to reflect the only legitimate legal method, and instead embrace republican democracy in legal interpretation.
Recommended Citation
Anya Bernstein & Glen Staszewski,
Judicial Populism
,
106
Minnesota Law Review
283
(2021).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4281
