Hypocrisy as a virtue

Author: R. S. Radford

Writing of John Maynard Keynes's General Theory, Henry Hazlitt once opined that the book contained much that was true, and much that was original.  Unfortunately, the parts that were true were not original, and the parts that were original were not true.  A similar criticism could be leveled at Keith J. Bybee’s new book, All Judges Are Political – Except When They Are Not. 

Bybee’s twofold thesis is that (1) judges decide cases based on their personal ideological preferences, but conceal this with rhetoric about being bound by the rule of law; and (2) we should be happy about that, because this sort of hypocrisy is the glue that holds a civil society together.

As to the first point, there’s no disputing the general truth of Bybee’s proposition, because it is uncontroversial.  Lots of studies, over many years, have shown that many appellate decisions can be predicted or explained simply by reference to the political party with which judges are affiliated.  There’s nothing really new here, because Bybee doesn’t dig deeply enough to get to the interesting part.  Why do some judges subordinate their political views better than others, once they’re on the bench?  Are judges whose political views are in the minority more likely to issue politically-based rulings, or less so?  Why does the political affiliation of judges lose its explanatory power in certain types of cases – notably, those involving property rights? 

Regrettably, Bybee probes none of these questions.  Instead, he draws an extended analogy between law and the rules of etiquette to ground the second part of his thesis – that judicial hypocrisy is actually a good thing, that strengthens our attachment to and support of the legal process.  Where this reasoning goes astray is in its failure to distinguish between uniform codes of behavior applicable to all of us simply by virtue of our existence as social creatures, and the more stringent standards we place on individuals in positions of authority over us.

Bybee may be correct that most Americans value the ideals of impartiality and principled behavior, but are too consumed by avarice and self-seeking to practice them.  But it does not follow from this that “a legal system that gives everyone a chance to appear impartial and principled, without actually requiring them to be so, is a system that has broad appeal” (pp. 101-102). 

I may embrace the many little social hypocrisies I encounter every day: “Pleased to meet you” (you incredibly boorish dolt); “That pie was delicious” (quick, where’s the bicarbonate?); “Your talk had me on the edge of my seat” (it was the only way I could keep from dozing off).  But that does not mean I would welcome a similar degree of dissembling on the part of a judge who must determine whether I am liable for another person’s injuries, or whether the Coastal Commission can claim my property for the state without paying for it.

Expecting judges to meet their professional responsibilities impartially and in accordance with the requirements of law, to the best of their ability, is neither foolish nor naive.  Everyone understands that the judicial profession as a whole does not always live up to those expectations, and in certain instances they may not even make a good pretense of doing so.  But that does not mean we should be satisfied with less.