Document Type

Article

Publication Title

Law & Contemporary Problems

Volume

87

Publication Date

2024

Abstract

Public confidence in the judiciary is at a low point. There are multiple reasons for the public’s waning faith in judges, but the perception that they are merely politicians in robes plays a significant part. This article analyzes the politicization of the judiciary and argues that while ideology invariably affects judicial decisionmaking, the professional identity of judges limits its impact. A commitment to judicial norms and processes as well as a concern for professional reputation serve as a real break on partisan loyalty and affiliation. The task is to preserve and promote this professional identity and convey to the public that judges' commitment to judicial norms and processes eclipses their personal political affiliations or beliefs. This article argues that judges should seek to cultivate and prioritize this professional identity and that in order to do so, they should refrain from engaging in certain overtly political conduct. The nature of the appropriate activities both on and off the bench necessarily involves complicated line-drawing unsuited to regulatory enforcement. As a result, preserving the legitimacy of the judiciary cannot be fully accomplished by regulation and much of the work in both cultivating professional identity and conveying the judge’s primary commitment to this shared identity will have to be undertaken by judges themselves.

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