Practice-Based Constitutional Law in an Era of Polarized Politics
We might reasonably think that both descriptive and normative legitimacy for a court that interprets a constitution and rules on the validity of deeply controversial issues of public policy are rooted in such neutral factors as whether judges are acting in good faith and constructing arguments using recognized legal modalities. Unfortunately, in a highly polarized, partisan environment, such efforts at neutral decisionmaking are likely to be dismissed by partisan opponents, and judicial decisions are likely to be evaluated by the cruder metric of substantive alignment with the observer’s own policy preferences. In an era of polarized politics, even judges deliberating in good faith may come to be perceived as illegitimate if they reach the “wrong” conclusions about high-profile, contentious constitutional issues.
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