Wednesday, December 06, 2006
Distinguishing Law From Ideology in Judicial Decisions
In response to my recent post warning against Judge Posner’s pragmatic adjudication, a number of readers defended Posner as merely being honest about the reality that judging is substantially political. This assertion is supported by personal testimony and reference to various studies of judicial decision-making. Given this reality, Posner’s urging that judges should strive to achieve the most reasonable result (all things considered) merely brings into the open what judges are already doing.
Professor Tamanaha: The high degree of unanimity of appellate decisions suggests that most judges, whether liberal or conservative, are CBs consciously striving to find the strongest legal answer (if they were CEOs, agreement would be lower).
I don't think that follows; it might be the effect of the law simply being clear, ala your statement, "Second, CEO is not able to achieve ends with total disregard for conventional legal understandings because the decisions must be legally plausible and have the external appearance of being rule bound."
Professor Tamanaha: The significant point is that CB judges are rule bound in the only way humanly possible—that is, by consciously striving to decide according to the strongest legal answer.
This seems an overly contextualized use of "rule bound." Even the CEO are rule bound; but their rules come less from "The Law", coming more, perhaps, from religion, politics, whatever, but from rule sets nonetheless.
Professor Tamanaha: Judge Posner’s pragmatic adjudicators, to return to the previous post, reason more like CEOs (though with greater candor) than like CBs.
Concerns above notwithstanding, yes!
Professor Tamanaha: This thought experiment suggests that the issue can be framed in a more refined way that distinguishes those judges who strive to come to the strongest legal answer from those judges who are more result oriented.
I would offer that the difference is not one of type (best legal answer v results) but rather one of degree (results of putting faith in rule of law first v. results of putting faith in [political party, pet policy goals, &c] first). This is similar to the way I look at the main problem pointed to by the title of your book, "Law as a Means to an End." The problem isn't that the law has become utilitarian, it was always meant to serve a purpose. The problem is that purpose has less and less to do with the Preamble of our Constitution, more and more to do with shareholder return and political power, with the blame going to "pragmatists" like Judge Posner.
Professor Tamanaha: Although politics will have an effect on both groups of judges, it will be limited in the former to the level of politics that is unavoidable.
Which should be the goal. I suspect even Judge Posner would agree with those words. The trick is who gets to decide how much is unavoidable? Judge Posner, if reports are correct, would seem to be saying, "There's not much unavoidable, so don't sweat it." You would seem to be saying, "Minimize that aspect at every opportunity." I side with you.
Professor Tamanaha: ...judges must decide cases with a conscious commitment to follow the law.
It is worth noting that "Sunstein's study finds that some areas of law are much more political than others.
In the areas of federalism, criminal appeals, and takings of private property, there are no meaningful differences between Republican and Democratic appointees. This is particularly notable given that about half of all appeals are criminal appeals in which there are no meaningful partisan differences, to a great extent because there is so much case law to bind judges.
In the areas of affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination and review of environmental regulations the liberal-conservative trends generally hold true.
On the issues of abortion and the death penalty, there is a strong Republican v. Democratic appointee split, but judges tend to not be influenced by the composition of the three judge panel making the decision in their voting patterns. These are the most partisan issues.
The breakdown of issues is particularly relevant because it shows why federal courts tend to be more partisan, separate and apart from the appointment process. Public law issues, the environment and civil rights are a much larger share of the federal docket than they are of the state docket.
Also while many assumptions made above are reasonable, ignoring panel effects may not be. As the abstract to Sunstein's article notes: "[P]anel composition has a strong effect on likely outcomes[.]" To use the terminology of the post above, many judges who behave like CBs in a panel of mixed partisanship, will behave like CEOs on a panel of uniform partisanship. This implies that the best way to achieve rule bound judging may be to give political minorities a greater say in judicial appointments.
I'd like to offer a suggested explanation of Professor Tamanaha's opinions regarding Posner's pragmatism, as follows:Post a Comment
"We are now in a position to ask why the American mainstream, typified by Dworkin, has rejected the English solution of “frank” recognition that the judge is willy-nilly a legislator when the “law runs out.” It seems to me that the answer is that… the admission would threaten to delegitimate “too much” of American law...
Crudely put, the liberal dilemma is as follows: The main vehicle of liberal reform in the United States since World War II has been the judiciary, and the judiciary, with the exception of a brief period in the mid-1960s, has consistently implemented reform against, rather than in collaboration with, state and federal legislative majorities. It is not surprising that a project of liberal… legal theory is to show that this judicial contribution to the substance of both private and public law is democratically legitimate because it furthers the rule of law, rather than merely legislating judicially.
But, as Gary Peller and William Eskridge have suggested, the liberal critique of conservative legal formalism, from Holmes through legal realism, extended by critical legal studies, has dramatically undermined academic faith in the possibility of judicial neutrality in hard cases…
Existentially, liberals with passionate commitments to specific judicial reforms, particularly in the areas of race and gender, have an interest in believing that these decisions were legally as well as politically and morally correct. If the judges “shouldn’t have” or “couldn’t legitimately” do these things, if the decisions were judicial legislation, then we “should have” gone on with the regime of de jure racial segregation until the gerrymandered state legislatures decided to abolish it in response to majority sentiment…
It has been obvious to liberal legal theorists, I speculate, that as present and potential rulers through the courts, they have an interest in the ability of the courts to command obedience and induce changes in moral sentiments. Any explanation of why the Warren Court did the right thing that accepts a strong form of the realist and postrealist critique of judicial legislation makes the people seem like dupes of legal mumbo jumbo that is just a mask for the imposition of the liberal ideological agenda. Such an explanation is not a good explanation. It is not good because it delegitimates this form of liberal political power for the future, while unilaterally abandoning the demand for judicial neutrality as a means of keeping today’s conservative judges and left-fringe activists in check."
– Duncan Kennedy, A Critique of Adjudication, pp. 113-115.