A Challenge to the Assumptions and Orientation of the 'Judicial Politics' Field

Brian Tamanaha

Today, the most dedicated purveyor of the view that “judging is politics” is the field that calls itself “judicial politics” studies (a self-chosen label that says it all)—involving quantitative demonstrations of correlations between the ideological views of judges and their judicial decisions. Judicial politics scholars churn out study after study showing that, yep, judging is infused with politics. Many judicial politics scholars apparently believe this to be true not just at the level of the Supreme Court (which would not be a revelation), but of judging generally, and they interpret their studies as supplying compelling proof for this view.

“The Realism of Judges Past: A Challenge to the Assumptions and Orientation of the ‘Judicial Politics’ Field” argues that the orientation of the field is warped owing to several erroneous assumptions and beliefs about judging that were deeply embedded from the very outset. The article offers an intellectual history that attempts to root out these assumptions by exposing them as false.

To serve as the vehicle for demonstrating these errors, the article takes aim at the widely held view that judges are deluded or duplicitous about the nature of judging. The author of a comprehensive review of judicial politics studies, for instance, wrote that “Judges usually speak and write with audiences in mind, and they ordinarily present themselves in a way that they think will be received favorably. Further, they do not always understand their goals fully, and they may mislead themselves as well as their audiences.” Judicial accounts of judging are therefore “unreliable.”

This often repeated article of faith--reinforced by occasional, simplistic statements to the effect that judging is like calling balls and strikes--is simply wrong. Since at least the late 19th century judges have repeatedly spoken in very frank terms about the flaws of law and problems with judging. They have observed that there are gaps and uncertainties in the law, that precedents can be found on all sides, that judges must make choices, and that sometimes their personal values (unavoidably or subconsciously) influence their decisions. Judges have made these points again and again for more than a century, in surprisingly candid terms.

The notion that judges are deluded or duplicitous is tied to a cluster of deeper misunderstandings that will also be dispelled. The article will show (building upon and adding to this earlier piece) that the notion of “mechanical jurisprudence” was an invention of critics of the courts; that Oliver Wendell Holmes and Benjamin Cardozo were not unusual among judges of their respective generations in expressing realistic views of law; and that the legal realists (including Jerome Frank) did not take the position that judging was necessarily or substantially political.

When these common misunderstandings are dispelled, the findings produced in contemporary judicial politics studies will appear in a completely different light. What now reads like evidence confirming the pervasive influence of politics in judging, will instead read like confirmations of what judges have been saying for many decades. With this reversal in orientation, it might even be possible to interpret these studies--which are now often presented as debunking the law-based nature of judging--as providing support for the proposition that judges (below the Supreme Court at least) are doing a pretty good job of living up to the rule of law.

Comments on the draft are welcome by email or on the comment thread, though please read the article first.
Posted 11:37 AM by Brian Tamanaha [link]