The Role of Judges in a Democratic Constitutional Order: Hutchinson’s Rethinking Legitimacy and Odinkalu’s The Selectorate in Conversation

Both The Selectorate and Rethinking Legitimacy inquire into political influence in the judicial arena. Whereas The Selectorate takes a critical posture to its reading of the ways politics have influenced actors of—and actions from—the bench, Rethinking Legitimacy takes a more realist view, emphasizing that a claim that politics can be purged from the bench, as to get at a purely professional or principled decision-making, is both unrealistic and ahistorical.

Given these positions, interesting questions arise about how to understand the role of judges in a democratic constitutional order, and where to locate judicial legitimacy when judges act under political influence.