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Judicial Populism

By Anya Bernstein & Glen Staszewski. Full Text.

Populism has taken center stage in discussions of contemporary politics. This Article details a judicial populism that resonates with political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists there are clear, correct answers to complex, debatable problems, treating reasonable disagreement as illegitimate. It disparages the institutions that mediate divergent interests in a republican democracy, claiming special access to the law’s clear objective meaning. And it imagines a pure, unified people locked in battle with a subversive elite.

While commentators have recognized political populism as fundamentally undemocratic, judicial populism has largely escaped recognition and even become entrenched in legal thought. We show how textualism, originalism, and unitary executive theory share political populism’s anti-pluralist, anti-institutional, Manichean tendencies. We elucidate judicial populism’s rhetorical tropes and stock stories, explaining how their frequently syllogistic format suggests indisputable truth even when their premises are faulty and conclusions unsupported. And we detail how judicial populism claims the mantle of the passive virtue tradition while undermining its aims.

Judicial populism’s rhetorical success has put proponents of other approaches on the defensive. Revealing its inner workings, we argue for the opposite result. Judicial populist rhetoric contradicts and undermines the commitments of republican democracy—a presumed pluralism of views and interests mediated through institutions that allow for ongoing negotiation about both means and ends among people who both compete and collaborate. Rather than ceding judicial populism the moral high ground, we should pursue a legal theory fit for a republican democracy. We end by outlining what such democratic judging entails.