It is hard to see the judicial neutrality in our system. If we ignore precedent, regardless of what side you are on, it creates a destabilization that cannot withstand within common law jurisdiction. Maybe I'm too cynical of the Court at this point, but it seems like clever wordsmithing allows the Court to overrule or abolish precedent by "hiding the ball" or pretending that semantics are the most important part of Constitution, versus - as you have referred to it - how we want to live together and what society do we want to build. For example, Dobbs essentially saying that the right to abortion does not exist because it was incorrect that the Roe court found that abortion fit under a right to privacy that the 14th amendment guarantees. It just feels like lawyers having a field day with themselves. One side feeling pompous and full of "gotcha" while the other just gets more creative to how they want to frame abortion rights. It's interesting and also demoralizing. It is so clearly politically motivated that it is hard to see any judicial neutrality. I would like to believe that should exist no matter the make-up of the Court, but that has not been the case.
This is the reason why so many scholars now focus less on neutrality and more on legitimacy. Neutrality suggests judges can somehow detach completely from their own values or political context.
Legitimacy, on the other hand, depends less on outcomes than on process. When the Court explains its reasoning clearly, acknowledges competing values, and shows respect for precedent even when departing from it, people may disagree but still see the decision as lawful. But when it appears to manipulate doctrine or history to reach a predetermined result, confidence collapses. Justices don't have to be "apolitical" (is any human apolitical?), but whether they exercise power in ways that make citizens believe the system still belongs to all of us.
It is hard to see the judicial neutrality in our system. If we ignore precedent, regardless of what side you are on, it creates a destabilization that cannot withstand within common law jurisdiction. Maybe I'm too cynical of the Court at this point, but it seems like clever wordsmithing allows the Court to overrule or abolish precedent by "hiding the ball" or pretending that semantics are the most important part of Constitution, versus - as you have referred to it - how we want to live together and what society do we want to build. For example, Dobbs essentially saying that the right to abortion does not exist because it was incorrect that the Roe court found that abortion fit under a right to privacy that the 14th amendment guarantees. It just feels like lawyers having a field day with themselves. One side feeling pompous and full of "gotcha" while the other just gets more creative to how they want to frame abortion rights. It's interesting and also demoralizing. It is so clearly politically motivated that it is hard to see any judicial neutrality. I would like to believe that should exist no matter the make-up of the Court, but that has not been the case.
This is the reason why so many scholars now focus less on neutrality and more on legitimacy. Neutrality suggests judges can somehow detach completely from their own values or political context.
Legitimacy, on the other hand, depends less on outcomes than on process. When the Court explains its reasoning clearly, acknowledges competing values, and shows respect for precedent even when departing from it, people may disagree but still see the decision as lawful. But when it appears to manipulate doctrine or history to reach a predetermined result, confidence collapses. Justices don't have to be "apolitical" (is any human apolitical?), but whether they exercise power in ways that make citizens believe the system still belongs to all of us.