by Keith J. Bybee. Stanford: Stanford University Press, 2010. 192pp. Cloth $55.00. ISBN: 9780804753111. Paper $19.95 ISBN: 9780804753128. E-book $19.95 ISBN: 9780804775618.
Reviewed by Paul M. Collins, Jr., Department of Political Science, University of North Texas. Email: pmcollins [at] unt.edu.
There is a fundamental tension when it comes to Americans’ views of judges. On the one hand, Americans regard judges to be neutral arbiters of the law. On the other hand, poll after poll indicates that Americans believe judges allow their personal preferences to influence their decision making. How do we reconcile this contradiction, the viewpoint that judges are simultaneously both impartial and overtly political? We might simply dismiss it as yet another example of the inconsistent beliefs held by Americans. We might attribute it to ignorance among the citizenry. We might chalk it up to the problems with public opinion polls.
In All Judges Are Political – Except When They Are Not: Acceptable Hypocrisies and the Rule of Law, Keith Bybee provides a novel, theoretically compelling answer to this question. According to Bybee, we can reconcile this inconsistency by turning to common courtesy. Americans, he argues, are willing to live with this contradiction, just as we are willing to live with the pretense that is courtesy. The public’s acceptance of this conflicted view of judges is rooted in hypocrisy. Courts are allowed to operate, and even thrive, as political institutions because the public is willing to accept the hypocrisy that is American judging. Similarly, common courtesy, observing the rules required by good manners, flourishes in America, not because all Americans are interested in conveying authentic admiration and respect, but because it provides a means for those who cannot live up to these ideals to maintain appropriate appearances. Hypocrisy thus acts as a type of glue, holding both the rule of law and society itself together.
Bybee makes his case in three parts. Part I sketches out the tension between the rule of law and the recognition that judges are political actors. Building on insights from legal theory, studies of judicial selection and decision making, and public opinion on courts and judges, Bybee convincingly demonstrates that both state and federal courts simultaneously operate as legal and political institutions, despite the fact that judges so often deny this is the case. The problem with this picture is one of legitimacy. How can courts maintain their legitimacy in the eyes of the public when existing perceptions of the judiciary threaten that very legitimacy? Bybee’s answer is that the public’s suspicion that judges are hypocrites can concurrently threaten and enable judicial power. Americans want courts to operate as neutral forums for dispute resolution, but at the same time they want their side to prevail. Thus, rather than decrying the problem of viewing judges as both neutral and political, Bybee argues that both of these perspectives capture an element of the truth. Sometimes judges [*301] base their decision on what appears to be the neutral application of the law. Other times, judges are incapable of doing so, and allow their personal preferences to color their decisions.
In Part II, Bybee introduces the concept of common courtesy to understand how hypocrisy might foster judicial power. Beginning with the premise that, while hypocrisy is generally thought of in negative terms, it is not only negative, Bybee demonstrates the hypocrisy that is evident in courtesy. Like law, courtesy consists of a collection of rules. Also like law, courtesy is often premised on hypocrisy. For example, courtesy dictates that we treat other individuals with respect, regardless of whether or not we actually respect those individuals. Thus, just as judges can appear to impartially follow the law, while allowing their personal preferences to influence their behavior, so too can courteous individuals show respect for others without actually believing the targets of their actions are worthy of such respect. Importantly, Bybee is not arguing that law and courtesy are one in the same. Instead, he argues that much can be learned about the rule of law by considering its similarities to common courtesy. To do this, Bybee walks the reader through the development and purposes of courtesy in society, building on the work of authorities as diverse as Lord Chesterfield, Thomas Jefferson, and Miss Manners.
Part III brings things full circle by making a persuasive case for the utility of understanding the rule of law akin to the rules of etiquette. While far from perfect, courtesy, like law, is intended to establish norms of behavior. Courtesy, like law, also permits individuals to make mutually beneficial arrangements. In short, courtesy provides a means for conflict-prone individuals to achieve peace, just as the law provides a forum for such individuals to resolve their disputes in nonviolent manner. The rule of law, like courtesy, is durable because it is based, in large part, on our interests, habits, and feelings. According to Bybee, just as Americans can handle hypocrisy in the pretense of courtesy, so too can they handle the potential for hypocrisy in the legal system.
In arguing that courtesy can inform our understanding of the rule of law, Bybee requires the reader to step outside of his or her comfort zone and think about a big picture question from a new angle. While this is always a challenge, Bybee marshals an impressive array of interdisciplinary evidence and theory to support his perspective. As such, this brief volume will appeal to a range of scholars studying law and society, legal theory, the legitimacy of judicial institutions, public opinion about courts and judges, as well as those interested in understanding the rule of law more broadly. As it is written in an accessible manner and engages contemporary debates about the legal system, it is appropriate for use in advanced undergraduate, law school, and graduate courses dealing with these topics. What is more, the section on courtesy – something I suspect most of us don’t think about often (at least from a scholarly perspective) – is fascinating enough in and of itself to recommend the book.
Bybee’s book provides a host of interesting directions for future research. For example, I am curious how often, and with what intensity, Americans think about the rule of law and the tension that exists in viewing judges as both [*302] impartial and political. Could this simply be something Americans don’t think about often and have learned to live with, similar to saying “thank you” as a matter of common courtesy? If so, perhaps scholars need to rethink the importance of studying the legitimacy of courts. Alternatively, maybe this is a tension that Americans think about often, but have learned to live with, similar to a host of other inconsistencies that make up political beliefs.
I also wonder whether the view of law-as-courtesy might work differently for political “winners” and “losers.” Winners can look to judicial decisions they support and argue those decisions are based on an impartial application of the law. Since courts already have the support of winners, we need not be too concerned about how they view the legal system. Losers, however, are likely to look at decisions they disagree with and argue those decisions were made on political grounds. Will losers accept such decisions akin to following the rules of common courtesy? Since the real threat to the rule of law comes from those who disagree with it, understanding how losers view the legitimacy of the legal system is more significant than the perspectives of legal winners. This opens up the possibility that the law-as-courtesy perspective might by conditioned by one’s agreement or disagreement with the substance of judicial decisions.
All Judges Are Political – Except When They Are Not is a bold and original account of law in American society. Written for the purpose of explaining how Americans accept a rule of law that is at once both impartial and political, Bybee convincingly makes the case that much can be learned by thinking hard about the role of common courtesy and hypocrisy in society. A truly interdisciplinary endeavor, this work provides serious fodder for those concerned with the health of the rule of law in America.
© Copyright 2012 by the author, Paul M. Collins, Jr.