Two questions inform Sandy Levinson’s essay. He asks (a) why we should respect and obey the law, particularly when there is so often a tension between morality and law, and (b) by what authority judges impose their will on the rest of us. Levinson and his academic colleagues are not alone in questioning the current judicial regime. A recent poll conducted by the National Law Journal found that three-quarters of the voters favored the election of lower-court judges, three-fifths favored the election of Supreme Court judges, and nine out of ten wanted to replaced life tenure for federal judges with fixed terms.
The logic of Levinson’s essay and the examples he uses, such as the Antelope case, suggest that the problem of respect for the law derives, as Ronald Dworkin and Owen Fiss would agree, from our failure to bridge the gap between law and moral purpose. But the evidence suggests that, to the contrary, the current dissatisfaction with the courts has come precisely because of the efforts, left and right, to bridge that gap....
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