ABSTRACT
Across institutional structures, a vital component of a functioning democratic society is the perception that the system is working for the benefit of citizens. Examinations that hinge on this belief tend to focus their attention on how political actors in such institutions can serve as representatives of the public. While many citizens feel that judges should remain outside of this “political” system, the reality is that it is impossible to subtract judges from the enterprise of representative government. We argue that historical changes to the institutional structures and norms that govern the judicial branch require us to reevaluate the role of the judiciary in the broader representative system of governance. We focus on two aspects of the institutional structure that affect judicial roles and expectations: the methods of selection and retention of judges, and the issuance of formal, written opinions. We claim that changes to institutional structures, specifically the separation of how judges are selected and retained, have an important impact on the link between representative and constituent. More importantly, these variations lead judges to think carefully about how they present themselves to elite, legal, and mass audiences when crafting opinions to maintain a presence as “guardians of the law.”
