Sherry on Judges of Character Suzanna Sherry’s essay Judges of Character, 38 Wake Forest Law Review 793 (2003) has just gone up on westlaw. Sherry is one of several constitutional theorists who have explored the implications of what might be called the aretaic turn in constitutional theory–shifting the focus from decision procedures to judicial character. Her essay is worth a serious look. Here is a taste:
Ironically, Alexander Bickel, who in many ways inspired the late twentieth- century concern about the legitimacy of judicial review, would likely be at least amused–and perhaps appalled–by much of the last four decades of constitutional scholarship. Bickel firmly aligned himself with what he called the "Whig" tradition of Edmund Burke. That tradition valued existing institutions, eschewing radical change in favor of incremental movement toward unfulfilled aspirations: "We do well to remain attached to institutions that are often the products more of accident than of design, or that no longer answer to their original plans, but that challenge our resilience and inventiveness in bending old arrangements to present purposes with no outward change." Despite his coinage of the "counter-majoritarian" terminology, then, his work on judicial review was designed more to preserve the practice from what were at the time very real political threats than to deny its legitimacy.
In addition to their use of Bickel’s terminology to support arguments he might not have agreed with, the majoritarian scholars who trace their roots to Bickel are missing the most valuable parts of his philosophy. For Bickel provided more than the nomenclature and modern reinvigoration of the debate over judicial review, and more than a Whiggish caution against radical restructuring of existing institutions. He also, as Anthony Kronman has so eloquently argued, provided a philosophy of judging that can, even *795 now, help us to move beyond the counter-majoritarian difficulty. Kronman describes Bickel’s "philosophy of prudence" as both "an intellectual capacity and a temperamental disposition." Prudence, or practical wisdom, in turn depends on what Kronman himself later labeled "traits of character": those habits of mind and spirit that allow an individual to make judgments where intellect runs out.
And here is another bit:
However daunting the task may seem, in the end, describing (and finding) individuals well-suited to the task of judging is likely to prove more useful than seeking artificial mechanisms to constrain poor judgment, or debating once again whether modern American judicial review is a curse or a blessing.
Bravo! For my take on the relationship between character (judicial virtue) and judging, take a look at Virtue Jurisprudence: A Virtue-Centered Theory of Judging, Metaphilosophy, Vol. 34, No. 1/2, pp. 178-213, January 2003.