Balkinization

Attitudinalism v. Principle

Sandy Levinson

A recurrent discussion, provoked especially by Brian Tamanaha in this venue, has involved explanations of judicial behavior. Many political scientists view judges as simply "politicians in robes" who vote to implement their preferred views on public policies. Many law professors believe that judges operate within what Ronald Dworkin termed "the forum of principle." One might, of course, argue, as Jack and I have, that judges can be explained by reference to their "high politics," which is distinguishable from a "lower" kind of politics that focuses, for example, on helping out one's own political party.

The voting i.d. case argued earlier today seems an interesting example. I take it that most observers are fairly confident of the ability to predict eight of the nine votes without reading a single brief or becoming aware of anything said at the oral argument. That is, Justices Roberts, Alito, Scalia, and Thomas will certainly vote to uphold a law passed by the Republican Party, claiming to be the "people of Indiana," that has the almost certain consequences of helping suppress the likely Democratic vote. Equally, one can predict that Justices Ginsburg, Breyer, Souter, and Stevens (the latter two, of course, who are nominally Republicans) will hold that the barriers placed on individual voters, given the absence of a scintilla of actual evidence that voting fraud is a problem in Indiana, places an "undue burden" on the "fundamental interest" of the right to participate in selecting one's governors. Early reports indicate that Justice Kennedy is likely to join his four conservative Republican colleagues in upholding the act.

So, if it turns out to be a 5-4 decision upholding Indiana (just before an election in which Republicans need all the vote suppression they can get), will that be explained as the result of principled application of the Constitution or as the imposition of one's political preferences or (the intermediate view) the application of a "high politics"? (Or, more to the point, will those who like the decision offer the first, while its opponents offer the latter?)

If one likes the notion of "high politics," incidentally, what, precisely, does that "high politics" consist of in the voting i.d. case? Deference to whatever state legislatures do, regardless of consequences? That is hardly congruent with the extraordinarily interventionist decision in Parents Involved, the school desegregation case involving Seattle and Louisville. (To be sure, that didn't involve a state legislature, but one doubts that any of the justices in the conservative plurality would have changed one word of their opinion had it been the Washington or Kentucky legislature.) But, of course, if the moderates (with the help of Kennedy) prevail, that would certainly be incongruent with the invocations of deference in Justice Breyer's dissent in Parents Involved.

A final note: As someone who has recently "invested" in the Iowa Electronic Market regarding the identity of the Democratic and Republican nominees by buying shares in Obama and McCain, I wonder what would happen if there were a similar market on Supreme Court cases. (Perhaps one exists. If it does, I'm sure that someone on this list will provide the relevant information.) How much would one pay for a chance at receiving $1.00 if the Supreme Court upholds Indiana? Reverses Indiana? Would one's price have anything to do with what one believed was the best argument "on the merits"? (Needless to say, I think that Indiana should lose on the merits, but those of you who disagree would no doubt, and perhaps correctly, say that that is precisely the view of the "merits" that one would expect someone with my politics to have.)

Posted 5:47 PM by Sandy Levinson [link]

Comments:

One might, of course, argue, as Jack and I have, that judges can be explained by reference to their "high politics," which is distinguishable from a "lower" kind of politics that focuses, for example, on helping out one's own political party.

How does "high" politics explain Bush v. Gore which appears to most as the Court simply helping out their own political party.

# posted by

Garth Sullivan : 6:56 PM

To phrase this another way.

Does Bush v. Gore come out any differently substituting Alito and Roberts for O'Connor and Rehnquist?

I suspect not.

# posted by

Garth Sullivan : 7:24 PM

Didn't Souter say that, if he'd have more time, he might have turned Kennedy around in Bush v. Gore? If so, then maybe he'll succeed here -- especially if Kennedy feels a bit of shame (or at least ambivalence) about Bush v. Gore and thinks that a vote against voter i.d. will undo some of the damage and allow him to be remembered as something other than a Republican hack.

# posted by

Henry : 7:24 PM

For a "high politics" opinion already written in this case, see Judge Posner's majority opinion for the 7th Cir (Sykes and Posner (GOP) with Evans - Clinton appointed judge - dissenting).

http://www.projectposner.org/case/2007/472F3d949

# posted by

Calvin TerBeek : 8:30 PM

I think it might be interesting to compare the attitude of the conservative justices in this case with their attitude in the campaign financing cases. I predict that they will place far more weight on the state's interest in combating an entirely theoretical, entirely unproven threat or public perception of voter fraud than they were did on the much more concrete corrupting influence of campaign contributions on politicians.

# posted by

cmp : 12:49 AM

This case looks to me like a good way of comparing claims that the Justices are driven by "high politics" to claims that they're driven by "low politics"/raw partisanship. It's pretty clear (at least to me) that partisan advantage, rather than some sort of principle, is what's really driving both sides on this dispute as a general political matter. What else could explain people's widely varying factual beliefs about how much voter fraud there is (or isn't) and how many voters would (or wouldn't) be disenfranchised? As a general matter, geople are almost uniformly adopting the beliefs about the facts that tend to support the position that helps their preferred party.

So if the split is 5-4 conservative/liberal, that suggests the Justices, like regular people, are being driven by partisan considerations.

# posted by

Elliot : 2:30 AM

"I predict that they will place far more weight on the state's interest in combating an entirely theoretical, entirely unproven threat or public perception of voter fraud than they were did on the much more concrete corrupting influence of campaign contributions on politicians."

They've put enough weight on your "more concrete corrupting influence" to permit Congress to place comparatively enormous burdens on political speech right at the moment it's most important, merely to combat the possible appearance of corruption. This in the teeth of "Congress shall make no law...", and the most blatant conceivable conflict of interest on the part of incumbents regulating speech intended to unseat them.

They could give the right to vote a dozen times the respect they've given the right of free speech, and easily find laws requiring a person to prove who they are before casting a vote acceptable. Voter ID laws represent a minuscule infringement on the right to vote compared to campaign 'reform' laws' infringement of 1st amendment rights.

# posted by

Brett : 6:34 AM

This post has been removed by the author.

# posted by

Henry : 8:09 AM

This replies to Eliott's comment "that partisan advantage, rather than some sort of principle, is what's really driving both sides on this dispute as a general political matter. What else could explain people's widely varying factual beliefs about how much voter fraud there is (or isn't) and how many voters would (or wouldn't) be disenfranchised?"

It may not be that the disagreement is factual; it may be that the right-wing justices agree as to the low amount of voter fraud and the high amount of voter dienfranchisement, but choose to defer to the legislature, either as a matter of principle or because they like the result. In view of the fact that deference to the legislature does not seem to be an important principle to them, a partisan motivation seems more likely, but need not necessarily be the case.

The moderate justices, in turn, might be motivated either by concern for infringements of voting rights or by partisan feelings. In light of their tendency to support constitutional rights, we might give them the benefit of the doubt and assume that they will vote on the basis of principle, even if the result of striking down the statute would be to their liking.

It is possible, in other words, that one or both sides will be motivated by a desire to do what is right legally, even if both vote in a way that coincides with their partisan feelings.

# posted by

Henry : 8:28 AM

is this low politics? I voted for Bush twice and am a republican, but if I were a judge I would absolutely regard voter ID laws with the strictest scrutiny and overturn them unless there was a strong state interest. the reason is because voting is different.

We citizens have to endure the petty tyrannies and endless hurdles set before us when we have to interact with the sovereign in a myriad of ways. e.g. the moody clerk with the crew cut and comfortable shoes at the DMV; or when we have to go to municipal court; etc. That is to be expected.

But voting is supposed to be different. It is not 'mother may I' like getting a driver license, asking for a rezoning, or doing our taxes. It is WE the voters who are supposed to control the sovereign, not the other way around. If voting is no different than all the other encounters we have with the sovereign, then we are all screwed and the sovereign's bureaucratic, institutionalist and expansionist tendencies will crush us.

I am surprised (not really) that conservatives are so trusting of government in this area.

When I have voted in Kansas I don't have to show ID, etc. I just sign my name where printed in the book. Seriously, if someone claimed to be me and had already voted, thereby committing A FEDERAL OFFENSE -- A FELONY, I would know it immediately and then hell would be raised. there's no fraud that creates the need for a voter ID. I don't want to have to show my ID when I enter the federal courthouse, or when I go vote. a police state is not patriotism, people.

# posted by

abu hamza : 1:57 PM