Journal Article

Satisfying the \Appearance of Justice\: The Uses of Apparent Impropriety in Constitutional Adjudication

2004

Overview

Frequently, and in numerous doctrinal contexts, the Supreme Court has justified its rulings with reference to a concern that the decisions of government - whether adjudicative, legislative, or executive - appear to be made in accordance with proper principles or procedures. Focusing on the appearance of impropriety raises a host of normative concerns. some might argue that resting on appearances, which are inevitably subjective, introduces an impermissible amount of indeterminacy into constitutional doctrine. Other skeptics might question the appropriateness of worrying about government's perceived legitimacy, and thus its effectiveness, in the course of interpreting provisions of the Constitution that seem to speak more to individual rights. Still others might contend that, simply put, the Supreme Court ought to concern itself with what is, rather than what merely appears to be. This analysis suggests that the appropriateness of the Court's use of apparent-impropriety concerns must be determined not categorically but contextually.

• Publisher: Harvard Law Review Association
• Subject: Campaign contributions / Constitutional law / Constitutions / Criminal justice / Defendants / Establishment clause / Fairness / Government / Government corruption / Human rights / Judicial discretion / Judicial ethics / Juries / Jurors / Justice / Legitimacy / Resting / Subjectivity / Supreme Court decisions / Supreme courts / Trials