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Author: David Schraub
Date: Fall 2020
From: Constitutional Commentary(Vol. 35, Issue 3)
Publisher: Constitutional Commentary, Inc.
Document Type: Book review
Length: 13,325 words
Lexile Measure: 1710L

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LAW AND LEGITIMACY IN THE SUPREME COURT. Richard H. Fallon, Jr. (*) Cambridge, Mass.: Harvard University Press. 2018. Pp. xii + 221. $41.00 (Cloth).

What makes a judicial decision legitimate? Common answers include fidelity to legal texts and precedent, coherence to natural or intersubjectively agreed upon norms, or endorsement from democratically accountable actors. But while these criteria each have strong theoretical appeal, their practical usefulness as a means of validating any contested judicial decision is often limited. In cases of legal indeterminacy or the proverbial "hard cases," many different outcomes can at least claim to fulfill these requirements. A decision which genuinely fulfills legitimacy criteria and one which is merely going through the motions often will be observationally equivalent.

As a means of practically establishing legal legitimacy in a way verifiable to external observers, pain is an underappreciated but important element of judicial practice. Judges routinely brag of rendering decisions which are painful to them--upholding "uncommonly silly laws," protecting "speech that we hate," reluctantly permitting terrible injustices to persist because the law "ties our hands." Far from being relegated to the embarrassed fringes, such cases play a central role in establishing judges as legitimate actors bound by law, and in many ways represent the demarcation line between good and bad judges--a good judge is one who does not flinch even in the face of great pain. Yet it should be clear that there is great risk in tying the validation of judges to the infliction and receipt of pain. To the extent judges are socialized into associating pain with legitimacy, the legal system that emerges will likely be one which needlessly and gratuitously inflicts pain.


In 2013, Judge Richard Kopf of the District of Nebraska levied a powerful warning for aspiring federal judges. He asked them to ask themselves: "Am I a willing judicial executioner, a person who consciously does great harm to other human beings by faithfully executing the extraordinarily harsh national criminal laws?" The question, Judge Kopf continued, gets at a painful truth: "When sentencing people, federal trial judges literally and consciously destroy lives and most do so on a daily basis." "Those who covet a federal trial judgeship," he advised, "should think hard about this truth before pursuing the job." (2)

It's good advice. This reality of judging--the necessity of inflicting pain as a daily feature of the job--is one all judicial candidates should reflect upon. On the other hand, we probably don't want judges who, after pondering whether they can serve as a "willing judicial executioner," answer with a hearty and cheerful affirmative. Perhaps the moral of the story is that the best judges are perpetually miserable.

Richard Fallon's book Law and Legitimacy in the Supreme Court does not spend much time considering the emotional well-being of judges--their happiness or sadness. Its focus is, as the name implies, on questions of legitimacy in judicial decisionmaking. "By what moral right" does the United States Supreme Court "establish controversial rules of law... and then enforce its dictates...

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Gale Document Number: GALE|A651388841