Some of America’s most important judges have emphasized or embodied the practice of judicial statesmanship. Yet from the examples they set, it is not particularly clear what judicial statesmanship is or why it matters. In this Article, I conceptualize the elusive phenomenon of judicial statesmanship, and I defend statesmanship as a core, if underappreciated, dimension of judicial role. I argue that judicial statesmanship defines a virtue in the role of a judge. Statesmanship charges judges with approaching cases so as to facilitate the capacity of the legal system to legitimate itself—over the long run and with respect to the nation as a whole—by accomplishing two paradoxically related preconditions and purposes of law: expressing social values as social circumstances change and sustaining social solidarity amidst reasonable, irreconcilable disagreement. I derive judicial statesmanship from an understanding of the preconditions of law’s public legitimation and from an understanding of the purposes of the institution of law. I demonstrate that statesmanship is a necessary, although not sufficient, component of judicial role. I argue that judicial statesmanship is not sufficient to legitimate the legal system because there are other major purposes of law with which statesmanship can be in tension, especially those advanced by maintaining fidelity to such ruleof-law values as consistency and transparency. But I also argue that statesmanship is necessary if law is to fulfill all of its functions and to take account of the conditions of its own legitimation. The rule of law depends for its practical realization on political trust between the government and the governed. In circumstances in which trust is strained, the virtue of statesmanship is especially valuable and produces leadership. I illustrate the present importance of judicial dtatesmanship by engaging some instances of its existence or absence during the U.S. Supreme Court’s October 2006 Term. I argue that Justice Kennedy’s controlling opinion in Parents Involved in Community Schools v. Seattle School District No. 1 seems in important ways to exhibit the practice of judicial statesmanship but that his majority opinion in Gonzales v. Carhart will in most respects likely prove a failure of statesmanship.
Neil S. Siegel, The Virtue of Judicial Statesmanship, 86 Texas Law Review 959-1032 (2008)