Symposium: The distinctive character of judging

From the earliest days of the Republic, Americans have displayed an ambivalent attitude toward judges. On one hand, we regard the judicial branch as performing a function distinct from the political branches, calling for the exercise of judgment removed both from popular opinion and from the political-moral views of the individual judge. This view of what we expect from judges is reflected in the lifetime tenure granted to federal judges by the national Constitution, and in the way we sometimes talk about wanting judges who “apply” rather than “make” the law. Chief Justice John Roberts’s insistence at his confirmation hearing that the role of a Supreme Court Justice is similar to that of a referee calling “balls” and “strikes” is an extreme example of that rhetoric.
On the other hand, we realize that what we call “law” is

Original SCOTUS article

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