an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.
The previous discussion focused on appellate judging below the Supreme Court (a special case). Once one accepts that politics has some play in these decisions, as few people would deny, the crucial question is how much play. Posner emphasizes the political factors in judges’ decisions, whereas I emphasize the overarching influence of legal rules and judges’ commitment to decide cases in a rule bound fashion.
Wherever one stands on these issues, there is no question that it is devilishly difficult to pin down. The evidence can be read both ways. Consider an often cited study of federal appellate judging by Sunstein, Schkade, and Ellman (recently published as a book). The authors declare that “No reasonable person seriously doubts that ideology, understood as normative commitments of various sorts, helps to explain judicial votes.” Their study found statistically significant differences in the votes of Republican and Democratic judges (though not in all categories of cases), and they found panel effects from mixed panels. Politics clearly matters, but, again, how much? The fact remains that the overwhelming proportion of appellate decisions are unanimous (usually around 90%). Accordingly, while the thrust of their article emphasizes political factors, the authors acknowledge that “It would be possible to see our data as suggesting that most of the time, the law is what matters, not ideology.” A “statistically significant” finding means that the differences and correlations found are not due to random variations; nonetheless, in proportion to the total the differences that show up can still be marginal.
To shed some light on this puzzle, try the following simple thought experiment.
Imagine two judges, both with politically conservative personal views: One decides cases with a conscious orientation that strives to abide by the binding dictates of applicable legal rules to come up with the most correct legal interpretation in each case (the Consciously Bound judge, CB); a second judge decides cases with a conscious orientation that strives to achieve ideologically preferred ends in each case, and interprets and manipulates the legal rules to the extent necessary to achieve the ends desired (the Consciously End-Oriented judge, CEO).
Add four realistic conditions to this scenario. First, notwithstanding having a legally bound conscious orientation, CB is subconsciously influenced by and sees the law through background personal views; the legal interpretations of CB are thus not completely free of political influences in this subconscious sense. 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. Third, in a large (but not total) subset of cases the law does not clearly point to a single outcome, though usually one outcome can be ranked as more legally compelling or defensible than others. Finally, in a subset of cases, the legal rules are open (no particular outcome can be ranked above any other) or they invite the judge to render a judgment based upon non-legal factors.
Now, imagine that, in a given case, both judges arrive at precisely the same (politically conservative) outcome, supported by identical written decisions; they would have joined opinions had they served on the same panel. They are led to the same result and use the same reasoning because they adopt the same theory of constitutional interpretation. The difference is that CB settles upon the theory as the correct way to interpret the Constitution following a sincere and exhaustive study of constitutional law, whereas CEO settles upon the theory because it tends to support the outcomes the judge personally prefers, and CEO is willing to depart from or “adjust” the theory when necessary to achieve a desired end in particular cases.
Interestingly, a behaviorist study would code these two cases in exactly the same way: as a legal decision that aligns with (and hence can be explained by) their conservative political ideologies. Indeed, by all external appearances the decisions are exactly the same. Yet this misses fundamental differences in their reasoning processes and in the contrasting way they would be normatively judged by others. CB is acting in a rule bound fashion, consistent with the duty of judges within our system, while CEO is abusing his power as a judge by engaging in a manipulative (insincere) interpretation of the law to advance a desired political end.
When we move away from this single case to examine the run of cases, and other judges, the significant differences between these judges and their respective orientations will be evident. While both judges are politically conservative, their decisions will not completely overlap. The conservative CEO will have a higher proportion of decisions that achieve politically conservative ends, because that is his overarching orientation, whereas the conservative CB will rule for the strongest legal answer even when that does not comport with her conservative political views.
The largest disparity will show up when comparing the decisions of conservative CEOs and liberal CEOs, because both are consistently reasoning toward opposite outcomes. Nonetheless, there will be some overlap in their decisions, in those cases when the applicable legal rules cannot plausibly be interpreted to achieve contrary politically desired outcomes—the politically oriented judge of one persuasion is happy to rule this way, while the judge with the opposing persuasion cannot avoid it (for the sake of simplicity, I am ignoring potential panel effects).
Note also that a conservative CB judge and a liberal CB judge will show a substantial agreement in their decisions—all those cases in which conventional legal understandings point to a strongest or most correct or most defensible legal answer.
Critically, the level of agreement in decisions that conservative and liberal CEOs share will be lower than the level of agreement in decisions that conservative and liberal CBs share. This is because, owing to the indeterminacy of law, the frequency of situations in which the conventions of the legal tradition prohibit a particular outcome will be lower that then frequency of situations in which one legal outcome can be ranked as stronger than any other—the former is a more stringent requirement that is harder to meet when indeterminacy exists.
With this scenario in mind—which is admittedly grossly oversimplified and filled with speculative assertions—we can perhaps interpret the findings of social scientific studies of judicial decision-making in a more refined manner. 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). Nevertheless, their agreement is not total, in part because even when conscientiously engaging in this task they will subconsciously interpret the law through the lens of their background views (leading to some divergence in interpretations), and furthermore because sometimes the law runs out or calls for a political decision to be made. The correlations that show up between legal decisions and background attitudinal profiles can be attributed to these factors (in addition to the fact that the law itself is sometimes substantively conservative in thrust or liberal in thrust).
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. Even though politics still has some play (subconsciously at least), to condemn this as inappropriately “political” is to demand the impossible. Little can be done about subconscious influences on thought (although we can arguably be on guard and strive to be aware of them, there are limits to this).
Equally important, by contrast, CEO judges can be condemned as being inappropriately political, because they are not committed to and are not in fact striving to decide according to the strongest legal answer. Realism notwithstanding, every judge takes an oath to faithfully apply the law, which is the role they play in the overall legal system. Thus it is proper to condemn them for failing to consciously strive to live up to the duty they have undertaken (just as social scientist who look only for confirming evidence for their pet theory and ignore or conceal disconfirming evidence can be condemned for failing to live up to the ideals of science).
Now imagine a legal system with a judiciary filled with CEO’s. Although it might look the same from the outside (the decisions in both would be supported by legal reasoning), it would be a very different legal system from one filled with CBs, exhibiting a lower level of agreement and greater variation. Judge Posner’s pragmatic adjudicators, to return to the previous post, reason more like CEOs (though with greater candor) than like CBs.
For some time now there has been a back and forth debate over the extent to which politics matters in judicial decision-making. Most law professors and political scientists think it matters a great deal; many judges say it matters less than is widely assumed by skeptics; but no one denies that it comes into play.
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. 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. They are doing the best they can, which cannot be said about the judges who are consciously striving to achieve particular ends. In reality, judges likely fall on a spectrum, and individual judges may well shift from one orientation to another depending upon the subject matter or situation.
Again, this is a realistic view of judging, but one that appreciates the fundamental importance of the fact that judges must decide cases with a conscious commitment to follow the law. The design and operation of our system depends upon this commitment. Posted
by Brian Tamanaha [link]
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:
"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.