Jason E Whitehead

The “rule of law” stands at the heart of the American legal system. But the rule of law does not require judges slavishly to follow the letter of the law, unaffected by political or social influences. Because following the rule of law absolutely is impossible, it is dismissed by the public as a myth and judges are vilified.

Judging Judges refocuses and elevates the debate over judges and the rule of law by showing that personal and professional values matter. Jason E. Whitehead demonstrates that the rule of law depends on a socially constructed attitude of legal obligation that spawns objective rules. Intensive interviews of judges reveal the value systems that uphold or undermine the attitude of legal obligation so central to the rule of law. This focus on the social practices undergirding these value systems demonstrates that the rule of law is ultimately a matter of social trust rather than textual constraints. Whitehead’s unique combination of philosophical and empirical investigation is a major advance because it moves beyond the dichotomy of law or politics and shows that the rule of law is a shared social enterprise involving all of society—judges, politicians, scholars, and ordinary citizens alike. Judging Judges’ attention to judicial values establishes judges’ true worth in a liberal democracy.

Introduction: The Battle Over Judges and the Rule of Law 1. Values and the Rule of Law from the Inside Out 2. Judges and Formalist Values 3. Judges and Good-Faith Values 4. Judges and Cynical Values 5. Judges and Rogue Values Conclusion: Changing How We Judge the Judges

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Religious conservatives usually criticize liberal judicial decisions – especially those related to moral issues like homosexuality and abortion – on Positivist or Formalist grounds rather than on Natural-Law grounds. While some take the position that such decisions are substantively immoral, most argue that they are procedurally illegitimate because judges are incorrectly interpreting constitutional rules and/or giving insufficient weight to the

The recent debate over the nomination and confirmation of Associate Justice Sonia Sotomayor centered on the question of judicial values. Liberals, including President Obama, argued that judges ought to be empathetic. Conservatives argued that empathy would violate the more important value of fidelity to law. Predictably, both sides argued that their position was most consistent with the rule of law.

In a landmark 1988 essay, Rogers M. Smith suggested that there were two different scholarly roads leading to the New Institutionalist account of law and judicial decision making: the struggle within political science against behavioralist accounts of legal and political institutions and the struggle within Critical Legal Studies (CLS)and other neo-Marxist scholarship against traditional Marxist accounts of law. These roads eventually converged in the neo-institutionalist " constitutive " account of law and judicial decisions, which focuses on the interrelationship between human structures and the decisions of legal actors and opposes all reductionist attempts to see either side of the equation as primary. However, since that convergence, most New Institutionalist public law scholarship has tended to emphasize the first road – anti-behavioralism – at the expense of the second. New Institutionalism now finds itself in the midst of a decades-long and apparently insoluble debate with behavioralist-inspired explanations (chiefly the Attitudinal Model) over the extent to which institutional practices and norms affect judicial decisions. In order to get past this impasse, this paper argues, the time is ripe for a reexamination of neo-institutionalism's intellectual debt to CLS's constitutive theory of law. This paper prepares the ground for such a rapprochement between the CLS and New Institutionalist accounts of law by tracing the development of the " constitutive " theory of law in the early CLS movement. The paper explains how scholars such as Duncan Kennedy, Karl Klare, and Mark Tushnet rejected the traditional Marxist theory of law as a reflection of the economic base of society in favor of a theory of law as simultaneously constituted by dominant social and institutional relations and constitutive of such relations. The paper traces the development of constitutive legal theory from its beginnings in CLS's rejection of traditional Marxism's mechanical determinism, through its identification with Marx's notion of commodity fetishism, to its premature abandonment in favor of newer postmodern understandings of society. I conclude, first, that the rediscovery of early CLS's constitutive theory clears up some longstanding confusion about the relation of CLS to legal realism and attitudinalism by differentiating the social constructivism of both CLS and New Institutionalism from the lingering positivism of legal realism and attitudinalism. Second, I argue argue that, despite persistent problems with the early CLS constitutive theory of law, its rediscovery has the capacity to enrich and deepen New Institutionalism’s explanation of the relationship between legal institutions, individuals, and judicial decisions.

Conventional wisdom holds that, for better or worse, Christian conservatives seek to resist the secularization of American society and to champion Christian moral standards in law and politics.  In his book, A Secular Age, however, Charles Taylor argues that, over time, Christianity has paradoxically helped to bring about and reinforce secularization in western society by reinforcing a “Modern Moral Order.”  Within this order, society is not seen as organically connected to higher moral principles; rather, society exists to recognize rights and obligations justified based only on the mutual benefit of its members.  The Modern Moral Order slowly replaces a transcendent frame of reference with an immanent one, where human actions are judged only by agreed-upon standards.  The immanent frame, Taylor argues, reinforces secularism in law, politics, and society by reducing legal and moral arguments to competing and increasingly irresolvable claims about ordinary human flourishing.

This paper attempts to “test” Taylor’s argument by examining claims made in briefs filed by Christian conservative legal groups in United States v. Windsor, Hollingsworth v. Perry, and Burwell v. Hobby Lobby.  My goal is to discover whether the legal claims made in these briefs (1) resist modern secularization through the use of transcendent (higher law) logic or (2) tacitly or openly accept modern secularization through the use of immanent (positivist) logic.  I find that, although Christian conservative legal activists sometimes rely on transcendent logic, most of their arguments are immanent -- consistently deferring to social agreement, majority will, mutual toleration and other hallmarks of the Modern Moral Order.  I argue that this Christian conservative acceptance of the immanent frame is problematic because it reinforces the pathologies of contemporary American moral discourse and obscures the potential for a more robust and authentic Christianity capable of radically transforming individuals and communities.

Political and legal scholars use narrative theory to study everything from the framing of policy arguments to the telling of tort tales to the construction of political consciousness. Such scholarship often relies on post-positivist theories that problematize the empirical validity of narratives. But the stories told by many recent movements in American politics-such as Christian nationalism, "the Big Lie," and Covid-19 conspiracy theories-so distort empirical reality that they endanger liberal norms and values, not to mention human lives. Scholars who ordinarily eschew objective narrative validity may nevertheless want to critique and challenge such stories on empirical grounds. This article investigates the options available to narrative scholars studying these types of stories. First, I survey different approaches to narrative, drawn from philosophy, rhetorical studies, critical feminist theory and critical race theory. Second, I highlight the resources and strategies devised by scholars who use these approaches to analyze other empirically problematic and socially dangerous narratives, especially how they have combined post-positivist commitments with concerns for truth and justice. Finally, I make suggestions for how scholars can better study and critique the political and legal narratives associated with the Trump era.

This article combines historical and philosophical analysis to examine and critique the ideas motivating Christian conservative legal activism. Such activists routinely claim to be motivated by a Christian worldview, which they define as a comprehensive explanation of reality that determines all their thinking and action, including their legal activism and argumentation. Examination of the historical and philosophical roots of the concept of worldview identified by Christian thinkers reveals two understandings of the concept: an analytic tool for rationally comparing the evidence for different social philosophies, and a pre-theoretical lens that determines what counts as evidence in the first place. Christian conservatives have largely favored the first sense of worldview as a tool to understand issues like sexuality and gender identity in an essentialist way and to demonstrate with foundationalist logic the rational superiority of their legal conclusions about these issues. However, a comparison of the Christian conservative worldview and the queer theory worldview illustrates how this understanding of worldview as a tool fails because there is no neutral perspective outside of any worldview, from which one could examine and compare one to another. The idea of worldview as a pre-theoretical, historically, and socially contingent lens can be more productive. Embracing this notion of worldview in a personalist way is necessary to build a culture of dialogue that uses narrative to pursue the truth while also respecting and honoring the different perspectives from which these narratives are told.

Recent attempts to reconcile liberal legal theory and religious legal argumentation -- including two recent books on religion and law in the U.S. and Europe -- have focused on liberalism's requirement that the state remain value neutral.  Some argue that liberalism can still accept religiously motivated legal arguments so long as these arguments shed their religious particularity or translate their claims into reasons that would be acceptable to the non-religious.  In this article, I explain that the liberal requirement of neutrality is not itself neutral but is instead a value choice.  Rather that reject such value choices -- religious or non-religious -- as irrational, I argue that we need a new standard for what counts as a rational legal argument.  I combine John Henry Cardinal Newman's epistemology and interpretive social theory to construct a post-foundationalist standard for legal argumentation that encourages dialogue between religious and non-religious truth claims.