Courting peril

Beginning with the Vietnam War and Watergate, public support for the institutions of American government has been in a state of decline, as Congress and the president have lurched from one scandal to the next. The judiciary has tried to duck the bruising body blows absorbed by the so-called political branches of government by remaining above the fray, through recourse to a centuries-old rule-of-law paradigm. The paradigm holds that if we leave judges be and respect their independence, they will set politics and other influences aside and uphold the rule of law. While the public has never regarded the state and federal judiciaries as apolitical, bias-free zones, it has nonetheless embraced the rule-of-law paradigm, which has long helped to insulate the judiciary from more aggressive political controls. In Courting Peril, Charles Gardner Geyh argues that this is changing - that the American judiciary is undergoing a decades-long political transformation that is challenging core tenets of the rule-of-law paradigm as never before. He shows how the new politics of state judicial elections, federal judicial appointments, media coverage, legislative oversight of courts, court practice and procedure, and judicial ethics and discipline have created new venues for questioning the rule-of-law paradigm and confronting what court critics regard as judges run amok. Despite these developments, the bar and the judiciary continue to support the rule-of-law paradigm, but Geyh argues that the paradigm has lost too much of its force because of heightened politicization. He advocates for a new paradigm in which an independent judiciary is acculturated to take law seriously but is still subject to political and other extralegal influences. Such extralegal influences cannot be eliminated, he shows, but they can be managed. By reorienting to this new paradigm, Geyh argues that support for an independent but accountable judiciary can be preserved