I. Introduction

II. The Rule of Law as a Law of Rules

III. Good Faith Disagreement versus Illegitimacy

IV. Rule of Law Myopia

V. Hope

From the introduction:

Let me start by summarizing what I intend to say. One can view the deep divisions in our legal culture, and one can view this confirmation battle, in partisan terms: Conservatives want one set of judicial outcomes, liberals want a different set of judicial outcomes and what we are witnessing is just a struggle about who is going to be in charge. All the rest is just posturing. But I think something deeper is going on.

Over the course of three decades or so, the idea of “the rule of law” has come to have a particularly focused meaning for judges, academics, and practitioners who are jurisprudential conservatives. Due in large part to the influence of Justice Scalia, the rule of law has become synonymous with a formalist kind of textualism in statutory construction and with originalism in constitutional interpretation. The idea is that these interpretive methods ensure fidelity to the rule of law—they ensure that we remain a nation of laws and not men in the sense that judges apply law rather than make it; they follow the dictates of the People expressed in the Constitution and in statutes, rather than substituting their own moral or policy judgments. In Justice Scalia’s memorable phrase, they have come to view the rule of law principally as a law of rules.

That set of ideas has a great deal of force and it has had a disciplining effect on the way all of us approach legal text that I think is positive. But I want to suggest that [ ] the dominance of the “rule of law as a law of rules” idea in conservative jurisprudence has produced at least two unfortunate consequences, one that is troubling but manageable and one that, at this moment in our history, may prove to be disastrous. The first unfortunate consequence is that it promotes divisiveness in the legal culture. It defines other interpretive methods, and the outcomes they produce, as illegitimate and not merely the product of good faith disagreement. Second, and more pressingly, it induces myopia. In this very moment in our history, many “rule of law as a law of rules” adherents are acting in a manner that suggests that they value the confirmation of judges who share their interpretive commitments as a higher value than protection of the integrity of our legal institutions, the legitimacy of which rests on a more fundamental understanding of what the rule of law means. And I say that this way of thinking may prove disastrous because the integrity of our interpretive methods ultimately will mean very little if the integrity of the institutions chiefly responsible for enforcing and adjudicating the law lies in ruins. I hope to suggest a way of thinking about a shared commitment to rule of law values that can address both of these harmful consequences.