Consider, for instance, the differences between American and Continental courts. In the European “civil law” system, judges often play a much more active role in the conduct of litigation than in “common law” systems such as those of the United States and the United Kingdom, which rely on more adversarial procedures. As Wolfgang Zeidler, the former president of the German Federal Constitutional Court, explains, “While the English [and American] judge is an umpire sitting at the sidelines watching the lawyers fight it out and afterwards declaring one of them the winner, the German judge is the director of an improvised play, the outcome of which is not known to him at first but depends heavily on his mode of directing.” Thus, in the German system, judges may be less likely to be confronted with surprising information and therefore less likely to stray from their ideological moorings.
Similarly, the case and controversy doctrine enshrined in Article III of the U.S. Constitution, which limits federal courts to deciding actual disputes rather than theoretical principles, may make it easier for American judges to have their intuitions challenged than European judges, many of whom may issue opinions without having to deal with hard facts or the vigorous presentation of evidence. As Louis Favoreu explains, in the constitutional courts of Belgium, Portugal, Spain, and France, as well as the European Court of Justice and the European Court of Human Rights, “a concrete dispute involving individual situations” is unnecessary to test the constitutionality of a statute; “an abstract or objective question” is sufficient. As a result, juridical drift appears far more likely in the U.S. federal courts, where, in the words of Justice Felix Frankfurter, the prohibition on advisory opinions insures that “a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multifaceted situation embracing conflicting and demanding interests.” The prohibition similarly insulates the federal judiciary from control by other branches of government, which, as in some Continental systems, might frame legal questions to suit their own needs and agendas.
troutfishing: IN other words, honest engagement with reality undermines fixed ideological positions.
I'd guess this effect would sway the opinions of judges long before they ascended to such lofty perches as the US Supreme Court bench.
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