Public choice theory, including constitutional theory based on publicchoice principles, assumes that individuals are rational maximizers in their public as well as their private conduct. That assumption does not deny that individuals may value the public interest and may have public virtue, but it does raise prominently the possibility that public virtue is in short supplyin both citizens and officials. The problem of public virtue is especially delicate with respect to judges because attitudes that are virtue in most officials are vice in judges: a legislator who pursues the public interest instead of private interests does right, but a judge who pursues the judge's own vision of the public interest legislates from the bench and is a bad judge. Constitutional systems like that of the United States that use judicial enforcement of constitutional rules call for judicial virtue, which is a particular form of public virtue: an ideological commitment either directly to the principles of the constitutional regime, or directly to the rule of law and indirectly to the principles of the regime that is the law. In the actual American constitutional system, federal judges, and in particular Justices of the Supreme Court, tend to be selected for a very specific form of public virtue: attachment to the constructions of the Constitution espoused by the party coalition that appoints judges. Whether judges and Justices so selected will also be committed to the aspects of the Constitution that are relatively clear, and hence do not call for construction through constitutional politics, is therefore one of the great questions posed by actual American constitutional practice. There is some reason to hope that judges chosen through the actual process of constitutional politics will be so committed, and so will possess a form of public virtue that is not limited to the constructions of ruling coalitions.

Citation
John C. Harrison, Public Choice and Judicial Virtue, 10 Journal of Law, Economics, & Policy 633–648 (2014).
UVA Law Faculty Affiliations
John C. Harrison