Taxonomies of Judicial Engagement and Abdication

October 13th, 2015

Clark Neily and Evan Bernick of the Institute for Justice have published a report on how courts fared in enforcing the Constitution over the last year. One of the more impressive aspects of the report is their visualization of engagement and abdication. What separates a court that engages the law, and one that abdicates? The authors offer fairly concrete examples–not depending on any particular case–that I think captures the various judicial archetypes that we see on a daily basis. An engaged judge (1) focuses on the facts, (2) seeks the truth, and (3) remains impartial. In contrast, a judge that abdicates (1) fudges the facts, (2) feigns ignorance, (3) disparages rights, (4) assists the government, (5), defers to democracy, or (6) “inkblots.” The purpose of this taxonomy is not to suggest judges can make stuff up, or do whatever they want, but requiring the government to actually justify their actions with legitimate rationales in  .