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Author of the Month: Jason Whitehead

Published: January 15, 2015

Judging Judges: Values and the Rule of Law

Jason Whitehead, associate professor, Political Science

The 253-page Judging Judges: Values and the Rule of Law appeared from Baylor University Press in December. The “rule of law” stands at the heart of the American legal system but it does not require judges slavishly to follow the letter of the law, unaffected by political or social influences. In his new book, Whitehead refocuses and elevates the debate over judges and the rule of law by showing that personal and professional values matter. Whitehead demonstrates that the rule of law depends on a socially constructed attitude of legal obligation that spawns objective rules. Intensive interviews with 25 State Supreme Court, intermediate appellate court and Federal Circuit Court judges across three states reveal the value systems that uphold or undermine the attitude of legal obligation. This focus on the social practices undergirding these value systems demonstrates that the rule of law is ultimately a matter of social trust. “I’m trying to revive the ancient ideal of the rule of law,” explained Whitehead. “We’ve become very skeptical about that over the last 50 years of American history. There has been lots of research in law and political science that either tries to debunk the idea of the rule of law or simply assumes that it doesn’t exist. What I’m trying to do in the book is to demonstrate how important it is to define the rule of law properly. The way it has been defined classically has been as a balance between the objective element of the law itself and the subjective element of the judges’ attitude toward the law. The law can seem so ambiguous and open-ended, especially in the big constitutional cases we see in the news. That is when the skepticism about the rule of law begins.” Whitehead argues that there are four types of judicial attitudes toward law: formalist attitudes, good faith attitudes, cynical attitudes, and rogue attitudes. “The formalist follows the technical rules of the law. The ‘good faith’ judge acknowledges ambiguity and that there is room for give and take. They see their duty as doing their best to get through the interpretive questions that need to be dealt with and still find the right answer,” he said. “Cynical judges have the sense of being confined by the law, but only as a tool to reach a result they desire on non-legal grounds. And rogue judges come right out and say the law does not bind them at all.” The issue of the rule of law is one of the most crucial any society can face, Whitehead believes. “When you look at societies that are breaking down, nearly

Author of the Month-Norbert Schürer

always, that breakdown is associated with a loss of confidence in the rule of law,” he said. “The title of my dissertation was ‘A Government of Words.’ That doesn’t sound like a good idea, to create a government of words. But this is what we do. We have a Constitution with statutes we create. We expect people to be bound by them. But that only works when you trust the people interpreting those words.” Whitehead urges potential readers to read his book for a window into how judges think. “It is one of the most secretive processes in America or any democracy,” Whitehead said. “One of the contributions this book can make to the average educated person is to explain how judges think about their own roles.” Whitehead received his B.A. in political science from CSULB in 1994 where he was also an award-winning member of the debate team. His J.D. came from Willamette University in Oregon in 1997. He earned his M.A. in 2001 and his Ph.D. in 2007, both from the USC political science department. Whitehead joined the university in 2007.