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

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]

Comments:

Ugh, I think you are taking on the wrong straw-man. The formalist-realist debate was finished long ago with Hart & Sachs and the legal process school having formulated a roughly acceptable response. The behavioral theory of public law-school--i.e., Segal and Spaeth and others--may be acting in the realist vein, but I assure you the realist critique (qua the realist critique) has long since passed.

You may want to, instead, focus on the CLS/CFS/CRS critique; namely that the judicial process is so much formalism that merely masks the naked power choices the judge is making, that really, in the most important cases, the judges are not swayed by arguments of counsel and do not look to legal precedents (in the horizontal sense) in formulating their opinions. Thus, the formal process of writing an opinion paying homage to legal precedents is a move to lend legitimacy to a judicial function rooted in policy based on the legitimacy of the process producing the result.

In practice, as you can ask several court clerks, there are several judges (at all levels in the judiciary) who will ask clerks to write an opinion supporting a specific outcome (Judge Harry Pregerson comes to mind to name one). An alternative universe migth ahve a judge ask clerks to write bench memos regarding who of the two sides has the better legal argument and then re-shaping that argument based on the law.

The more interesting question is, even for judges that use the latter process of using the pre-existing law to justify a particular result, is there anything left on the legitimacy table to support their judicial policy-making role or is the legitimacy of judicial policy-making tied to a platonic process of judicial opinion-making that underlies your argument.

Thanks.

# posted by

Unknown : 12:33 PM

preetam,

I was grateful that you took the time to read the draft and comment--until your final line, suggesting that I was relying upon some notion of a "platonic process" judging. You could not possibly think I believe that, at least not if you had read the draft.

Nonetheless, your comments raise interesting points. The difference between us is that I take the judicial politics field seriously, and I hope by this piece that I will help prompt a beneficial reorientation in the field.

Brian

Brian

# posted by

Brian Tamanaha : 3:13 PM

# posted by

Brian Tamanaha : 3:14 PM

First of all, well done for your snide comments! You should be very, very proud!

Snark aside, you are once again, missing the point of the behavioral/public law critique of judging which hearkens back to Bickel's countermajoritarian difficulty. Sure, the studies try to show that politics infuses judicial decision-making. But you miss the point to which these studies are deployed; they are not an end-unto themselves but are part and parcel of much larger arguments. The behavioral critique can lend itself to supporting to many, many arguments, for instance as to what role the Congress should play in the confirmation of judges.

But at its deepest roots, it is an attack on the Article III nature of judges and sometimes on the formalistic nature of judicial language itself. So, I'll ask you straight out: should judges be insulated from the political process as they are in Article III, or should judges be selected by any number of more popular measures that may claim more democratic legitimacy bona fides? The impression I get from your article is that you believe, fairly strongly, that Article III is a fine way for selecting judges, although your article does not mention Article III at all.

Thus, we come back to the legitimacy argument I was making. Adhering to Article III in the face of behavioral evidence that judges will, for the most part, make judicial decisions based on their own policy preferences means that you have to find legitimacy somewhere in the judicial role or judicial process itself (I called this the platonic process of judicial opinion-making, and it appears that my choice of phrasing is what got you all upset, so feel free to use a phrase of your choice).

Whether the public law/behavioral narrative ("the belief that judges are deluded or disingenuous about the nature of judicial decision-making") is truth or truthy is irrelevant. Such narratives, regardless of their fundamental truth, do not obviate the legitimacy critique.

Feel free to respond or ignore my comments as you see fit. I stand by my comments that you have thoroughly missed the point of the behavioral critique.

# posted by

Unknown : 2:50 AM

Oh, I forgot to include that I take the public law/behavioral folk very seriously; however, I do not think I am taking them seriously by responding to the least dangerous or provocative pieces of their arguments. I certainly do not think that recharacterizing the argument as an issue about whether judges are duplicitous about politics in their decision making is taking the argument seriously.

# posted by

Unknown : 2:56 AM

preetam,

Sorry about the snide comment. It was not appropriate. Your fuller comments are well taken, though again I take our concerns to be very different (not to say that yours are not important).

Brian

# posted by

Brian Tamanaha : 10:50 AM

Percy wouldn't notice a joke if it danced naked in front of him wearing one of Dobby's hats.
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# posted by

Unknown : 5:30 PM