The Politics of the Law-Politics Dichotomy

Throughout American history, judges and legal scholars have articulated and maintained a sharp separation between law and politics. This essay asks the question: Why do so many judges and scholars devote so much time and energy to bolstering this law-politics dichotomy? Using William Baude and Stephen E. Sachs’s recent article “The Law of Interpretation as a Sp ringboard,” this essay explores the history and political valence of the dichotomy. From Baude and Sach’s perspective, politics is like a disease: if it infects legal interpretation, then it threatens the health of the judicial process.

But the history of the law-politics dichotomy reveals that it empowers legal scholars to articulate and judges to implement their political preferences without acknowledging as much. Politics, it turns out, acts tacitly through legal and judicial processes.