In this Article, Professor Neil Seigel attempts to conceptualize analytically the elusive concept of “judicial statesmanship.”  Judicial statesmanship, in brief, is the quality of the judicial temperament that applies practical political and social wisdom to the process of adjudication in light of the enormous interests that depend on the results of judicial opinions.  This attribute of judicial role has been described and advocated as essential by various Justices of the Supreme Court including Brandeis and Frankfurter; however, the concept has evaded attempts at analytic description.

It has, at best, been described by a hodgepodge of qualities and conditions such as: understanding the open-endedness of constitutional language; recognizing the enormous difficulty of the problems facing the Court and the limited experience of any individual judge; and advancing the need for law to keep up with the times.  Professor Seigel approaches the problem of describing judicial statesmanship from a different framework—he locates judicial statesmanship in the need for legitimation of legal systems.  In this framework, judicial statesmanship is a virtue that is essential to maintaining trust between the government and the governed, trust in the rule of law, and a spirit of “moderation” within the polity.

Thus, judicial statesmanship furthers two potentially conflicting purposes: (1) it expresses “social values as social circumstances change” and (2) it sustains “social solidarity amidst reasonable, irreconcilable disagreement.”  When judicial statesmanship as a concept is approached in this manner, it becomes possible to identify judicial opinions as either statesmanlike or unstatesmanlike.  Professor Seigel applies this rubric to two recent Supreme Court opinions—Parents Involved in Community Schools v. Seattle School District No. 1 and Gonzales v. Carhart—and argues that the majority opinion for the former exhibits the virtues of judicial statesmanship while the opinion in the latter case does not.