Keith J. Bybee

The Political Significance of Legal Ambiguity: The Case of Affirmative Action

Although members of the Supreme Court have debated the legitimacy of affirmative action for more than 20 years, they have yet to agree on a clear conclusion. Rather than simply supporting the proliferation of racial preferences or directly mandating strict colorblindness, the Court has repeatedly re-affirmed a more ambiguous settlement: it has allowed a little bit of affirmative action, but not too much. This article argues that such ambiguous judicial results serve an important political purpose. By weakly endorsing some racial preferences while leaving the overall validity of affirmative action open to question, the Court has created a space for on-going judicial action in the context of modern interest-group politics. Thus, even though the Courts jurisprudence of affirmative action is riddled with unresolved tensions and uncertain logic, it nonetheless helps the judiciary adapt to the dynamics of American politics.

Legalizing public reason: The American dream, same-sex marriage, and the management of radical disputes

Beginning with Rawlss claim that the Supreme Court is the exemplar of public reason, we develop a theory of how reasoned arguments are used in political disputes. We argue that justices often make piecemeal arguments and that this fragmented style of argumentation extends beyond the bench. The result is that many political disputes are “legalized” – not because public arguments are necessarily about laws, but because public arguments often unfold in the same ambiguous way that they do on the Court. We illustrate our argument by examining the use of American Dream talk in the dispute over same-sex marriage (SSM).

The Supreme Court: An Autobiography

What does the Supreme Court talk about when it talks about itself? In addition to the debates over interpretive method and doctrine that fill their opinions, Supreme Court justices often discuss what it means to be “a Court” and how such an institution must function. Our chapter explores this specific form of judicial self-representation, examining the ways in which members of the Court define their own “Court-ness” in their decisions. We argue that the Court’s acts of autobiography simultaneously generate images of impartiality and partiality. The result is the public projection of a contradictory judicial persona.

Legal Realism, Common Courtesy, and Hypocrisy

In the USA, courts are publicly defined by their distance from politics. Politics is said to be a matter of interest, competition, and compromise. Law, by contrast, is said to be a matter of principle and impartial reason. This distinction between courts and politics, though common, is also commonly doubted – and this raises difficult questions. How can the courts at once be in politics yet not be of politics? If the judiciary is mired in politics, how can one be sure that all the talk of law is not just mummery designed to disguise the pursuit of partisan interests? In one sense, an ambivalent public understanding of the courts and suspicions of judicial hypocrisy pose a threat to judicial and democratic legitimacy. Yet, in another sense, public ambivalence and suspected hypocrisy may actually open up space for the exercise of legal power. I illustrate and critique the enabling capacities of ambivalence and hypocrisy by drawing an analogy to common courtesy.

The Rise of Trump and the Death of Civility

According to supporters and opponents alike, Donald Trump has been an unconventional candidate and president. In this article, I evaluate the relationship between Trump’s unconventional behavior and the requirements of civility. I provide a definition of civility, and I explain why it makes sense to relate Trump’s actions to civil norms. I then discuss how civility is enacted, I examine criticisms of civility’s triviality, and I explore the ways in which civility may repress dissent and maintain hierarchy. Although I consider the degree to which Trump’s actions are strategic, I ultimately argue that Trump’s incivilities should be understood as an effort to initiate a revolution in manners. In this regard, Trump’s behavior is not unprecedented. He is participating in a longstanding American tradition of determining standards of appropriate conduct through political conflict.

Potter Stewart Meets the Press

Although there are nearly fifty words in the First Amendment, a few Supreme Court justices have developed distinctive approaches to free expression by boiling the Amendment down to a single phrase.1 Justice Hugo Black, for example, thought the essential meaning of “Congress shall make no law … abridging the freedom of speech, or of the press” could be found in just three words: “I read ‘no law … abridging’ to mean no law abridging.”2

How Would You Know a Virtuous Citizen If You Saw One

Abstract The debate over the state of civic engagement in the United States is bound up with underlying disagreements over the kind of political character citizens ought to possess. Thus, in order to advance the debate over civic engagement, we must make judgments about which conception of citizenship we wish to embrace.