America's longstanding debate about the politicization of the judiciary is by now so familiar that we have lost sight of its enigmatic character. Practically everybody, left and right, agrees that courts should somehow be above politics. At the same time, however, practically everybody can point to numerous instances of what they sincerely regard as egregious examples of politicized judging — important cases that courts have determined according not to law but to the political preferences of the judges. It is strange to find a phenomenon that is apparently prevalent despite being almost universally condemned.
This enigmatic problem is illustrated by the public career of America's most famous — and perhaps most enigmatic — judge: John Roberts. Roberts is famously associated with the claim that judges should not be political. During his confirmation process he insisted that judges should be only “umpires” and not players in the game of politics. At the same time, Roberts has not been able to shake the accuastion — made by his enemies, and sometimes even by his friends — that he himself is a political judge, that he has let considerations other than the Constitution and the laws determine the outcome of important cases.
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