Emory Law Journal


Talk about judicial politics is ubiquitous in the press and academia today. Discussions of this topic, unfortunately, are often vague or inconsistent about the precise meaning of politics in judging. This Essay explores several core meanings of judicial politics to help identify what is, and what is not, inappropriate about politics in the context of judging. The failure to mark differences between these meanings and their implications, I argue, distorts matters and has the potential to undermine our judicial system. The New York Times recently ran an editorial titled Politics and the Court sharply criticizing Justices Antonin Scalia and Clarence Thomas for trampling the line between law and politics. The Justices effaced this line, according to the editorial, when they took part in a political gathering sponsored by Charles Koch--"the conservative corporate money-raiser"--while Citizens United v. FEC was pending before the Court. The Times also castigated Scalia for issuing "a rambling, sarcastic political tirade" in a recent dissent. Quoting Professor Lucas Powe's view that Scalia "is taking political partisanship to levels not seen in over half a century," the editorial added that "Justice Thomas is not far behind."