Emory Law Journal


Todd E. Pettys


Editorialists, politicians, and others sometimes accuse U.S. Supreme Court Justices of hypocrisy, especially when they believe that divisions among the Justices are the product of partisan loyalties rather than good-faith differences in impartial legal judgment. These hypocrisy charges pose a serious threat to the Court’s legitimacy. In legal circles and elsewhere, however, one finds a remarkable lack of clarity about what hypocrisy is and the moral precepts that define its boundaries. As a result, participants in public discourse about the Court can easily find themselves talking past one another. To be assured that the Justices are not hypocrites with respect to their commitment to impartiality, for example, is it sufficient to be persuaded that the Justices are not trying to deceive us when they say they do not regard themselves as mere politicians in robes, or is more required? In this Article, I offer a conceptual framework for thinking about hypocrisy of all sorts. I argue that hypocrisy appears in three principal forms—Faking Hypocrisy, Concealing Hypocrisy, and Gerrymandering Hypocrisy—and I identify the anti-equality thread that runs through all of them. I then show how this three-part framework can deepen our thinking about the work of the Court. With respect to the Justices’ pledge to be impartial, for example, I argue that there are circumstances in which the Justices can be guilty of hypocrisy only if they are schemers bent on duping the American public into believing they are unbiased. In other circumstances, however, the Justices can be guilty of hypocrisy even if they sincerely believe they are doing what the law requires.

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