The Judge: 26 Machiavellian Lessons

Author: Ronald K. L. Collins; David M. Skover
Publisher: Oxford University Press
ISBN: 9780190490140
Published In: October 2017
Format: Hardback
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only

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Contents

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There is no book of political strategy more canonical than Niccolo Machiavelli's The Prince but few ethicists would advise policymakers to treat it as a bible.

The lofty ideals of the law, especially, seem distant from the values that the word "Machiavellian" connotes, and judges are supposed to work above the realm of politics.

In The Judge, however, Ronald Collins and David Skover argue that Machiavelli can indeed speak to judges, and model their book after The Prince. As it turns out, the number of people who think that judges in the U.S. are apolitical has been shrinking for decades. Both liberals and conservatives routinely criticize their ideological opponents on the bench for acting politically. Some authorities even posit the impossibility of apolitical judges, and indeed, in many states, judicial elections are partisan.

Others advocate appointing judges who are committed to being dispassionate referees adhering to the letter of the law. However, most legal experts, regardless of their leanings, seem to agree that despite widespread popular support for the ideal of the apolitical judge, this ideal is mere fantasy.

This debate about judges and politics has been a perennial in American history, but it intensified in the 1980s, when the Reagan administration sought to place originalists in the Supreme Court. It has not let up since. Ronald Collins and David Skover argue that the debate has become both stale and circular, and instead tackle the issue in a boldly imaginative way.

In The Judge, they ask us to assume that judges are political, and that they need advice on how to be effective political actors. Their twenty-six chapters track the structure of The Prince, and each provides pointers to judges on how to cleverly and subtly advance their political goals.

In this Machiavellian vision, law is inseparable from realpolitik. However, the authors' point isn't to advocate for this coldly realistic vision of judging. There ultimate goal is identify both legal realists and originalists as what they are: explicitly political (though on opposite ends of the ideological spectrum). Taking its cues from Machiavelli, The Judge describes what judges actually do, not what they ought to do.

Prologue

1. The Confirmation Process and the Virtues of Duplicity

2. How to be Aggressive and Passive . . . and Great

3. Recusal and the Vices of Impartiality

4. The Use and Misuse of the Politics of Personality

5. Fortuna: The Role of Chance in Choosing Cases

6. When and Why to Avoid a Case

7. Carpe Diem: When to Embrace Controversy

8. Tactical Tools: Using Procedure to One's Advantage

9. Oral Arguments: What to Say and How

10. When to Lose a Case and Win a Cause

11. In Defense of Unprincipled Decisionmaking