Constitutional Turf Wars: Competing for the Consent of the Governed

The prevailing image of an ideal judiciary is one insulated from the politics of the day, and judge-made law is seen as fundamentally antidemocratic. It is widely recognized, however, that the Supreme Court is influenced by politics. Professor Lively accepts this influence, arguing that politics impact the judiciary in several necessary and positive ways and concluding that in many instances judge-made law furthers rather than undermines the democratic process. Professor Lively sees institutional competition, particularly between the legislative and judicial branches of the government, as an important aspect of our system of checks and balances.

He argues that a truly apolitical judiciary would undermine this institutional competition, which he sees as facilitating both legal and moral progress.