[F]irst, that they are experts in the law in the same way that rocket scientists have a field of expertise; second, that they are gifted with exceptional wisdom; or third, that the terms of their office liberate them from “political” constraints. He correctly rejects the first answer because the number of dissenting opinions belies the suggestion that there is only one permissible answer to the kind of question that courts consider. He correctly rejects the second answer because he agrees with Justice Holmes that “the life of the law is not logic, but experience.” While he concludes that the third answer depends on one’s views about the empirical consequences of election of judges, in my judgment, he accurately identifies the controlling criterion in this sentence: “Life tenure and the liberation from political accountability would remove certain incentives that lead ordinary leaders to betray the public good.”
September 25, 2012
Justice Stevens rejects the idea that legal expertise is the reason why judges have the last word on the meaning of the Constitution.
The retired Justice is reviewing Sanford Levinson's new book "Framed: America’s Fifty-One Constitutions and the Crisis of Governance." Levinson has offered 3 different reasons why judges have this role in our system of separated powers: