THE LEGITIMACY OF JUDICIAL DECISION MAKING IN THE CONTEXT OFRICHMOND v. CROSON

Abstract

The public profile of the U.S. Supreme Court has rarely been as high as it is now. The replacement of retiring judges with Republican-nominated conservatives over the past decade combined with a series of contentious decisions regarding minority rights and affirmative action in the nation's cities have again raised doubts about the legitimacy of the Court. With respect to the Court's recent decision in City of Richmond v. J.A. Croson Co., this paper considers the theoretical logic behind three strategies of legitimization: (1) the idealization of law as a political institution; (2) the idealization of law as a superior mode of reasoning; and (3) the idealization of law as an ethical blueprint for society. Understanding the logic and limits of these strategies in the context of urban racial justice is the goal of this paper. In doing so, however, it is argued that all three strategies make too powerful claims about the theoretical virtues of their approaches to the law. Notwithstanding the virtues of theory, there may be no substitute for a moral commitment to others.

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