Judges and the Myth of the Rule of Law

The remarkable thing about the rule of law is that it exists at all in the modern or post-modern cultures of the late 20th and early 21st centuries. In particular, I'm thinking about the role of judges and our faith in the legal system to provide predictable, stable, and coherent rulings that are consistent with existing rules.

While judges in civil law systems are generally respected by the bar and other consumers of legal decision making, in the U.S., judges are the aristocracy of the legal class. We accord them and their decisions extraordinary respect and accept the anti-majoritarian and anti-democratic rulings on civil, criminal, statutory, and constitutional matters as if those pronouncements are somehow gifted with extraordinary insight and finality. In some cases, the state and federal supreme courts may render final statements of the law that contradict deeply-held ethical and political beliefs of supermajorities of citizens affected by those opinions. Despite this, judicial impeachment proceedings or legislation defunding activities of the judicial branch are rare. Likewise, incumbent judges are almost never voted out of office.

While we may view judges as important bulwarks that preserve the rule of law, the reality is that most judges are political hacks who get appointed because of their political activities and support or elected because they have a judicial-sounding surname. (Professor Barnhizer the Elder recently wrote on the ability of even the most incompetent and/or corrupt judges to consistently win re-election because of name recognition HERE). While the legislative process is often analogized to the making of sausage, it's not really fair to say that the process of judging legal disputes is any better. Judges often make mistakes of law, base their decisions on partisan political considerations, engage in vote trading at the appellate level, and even when they attempt to act in good faith are still so overburdened with cases that they rarely can afford to give any dispute serious attention.

The result of all of this is that, despite the lip-service we give to judicial honor, integrity, wisdom, and discernment, in many cases judges are little better than handing disputes to a Magic 8-Ball or a similar black box device. So how, then, can these human beings dressed up in black mumus claim the legitimacy and authority accorded to them under the Rule of Law?