Balkinization  

Friday, November 18, 2005

The Assumption that Judging On the Supreme Court (and Elsewhere) is Politics

Brian Tamanaha

Everywhere you look it seems to be almost taken for granted that the personal values or political views of judges have a determinative impact on their decisions. That is the assumption behind the daily search to dig up and scrutinize anything that might bear on Judge Alito's political views.

That was also the underlying assumption in the spectacle surrounding the appointment of a judge to try Rep. Tom Delay: first a Democractic judge recused himself, then a Republican judge did the same, then another Republican judge passed it off to a semi-retired judge who was a registered Democract but didn't contribute much to political campaigns.

Many social scientists who study judging also believe that the values and political views of judges determine their decisions. An informative new book, Advice and Consent, by Lee Epstein and Jeffrey Segal, political scientists who have conducted several important studies of judicial decision-making, states at the very outset (quoting C. Herman Prichett, another leading political scientist of the judiciary) "that judges 'are influenced by their own biases and philosophies, which to a large degree predetermine the position they will take on a given question. Private attitudes, in other words, become public law.'" This is the core thesis underlying their book.

Given the pervasiveness of this assumption, it is no wonder that the public also increasingly thinks that judges decide cases based upon their personal views, as a couple of recent polls have indicated.

Closer to home, most of the law students in my Jurisprudence class are convinced that judging is politics, and that judges can pretty much do whatever they want to.

This attitude about judging brings to mind the Critical Legal Studies Movement of the 1970's and 1980's, a group of radical legal theorists at elite law schools whose mantra was "law is politics." The "Crits" argued that legal rules and standards are indeterminate. Judges can thus pick the outcome they desire. At the time, the Crits were roundly attacked as exaggerators or nihilists. If they made this argument today, however, it would sound redundant. Times sure have changed.

But is this pervasive assumption correct? And how can we know for sure?

Most judges will deny that the substantial bulk of their decisions are determined by their personal politics. The fact that a high percentage of appellate decisions are unanimous, even when judges on panels have different political views, tends to support this position. Besides, judges insist, most cases don't invoke any particular personal value or political view. There is a strong suspicion that we can't trust accounts by judges, however, either because they are deluded about or concealing the real source of their decisions, so their denials doesn't count for much.

The certainty of many political scientists that judges are "politicians in black robes" is based upon empirical studies that correlate judges' legal decisions with attitudinal indicators (which is a stand in for their personal views). One study showed that Justice Douglas, for example, voted liberal in 94.3 percent of civil rights cases, whereas Justice Rehnquist voted liberal in only 4.5 percent of these cases. Accordingly, in this type of case one could predict with a high degree of reliability the decision these Justices would render without regard to the specific facts or applicable law in the case. This offers convincing evidence that their personal views determined their decisions.

The evidence is not entirely one-sided, however. Jeffrey Segal, co-author of the new book that flatly asserts that judging is personal politics, completed a study in 1984 which showed that "legal factors" predicted 76 percent of the Supreme Court's decisions in search and seizure cases. Lee Epstein, the other co-author, completed a study in 1992 of criminal cases which showed that 75 percent of the Justices' decisions could be predicted by "legal factors." Both of these studies still stand, since they were done of past Supreme Courts and the correlations the authors found are set. Curiously, both authors have conducted studies which show that personal factors predict decisions and that legal factors predict decisions, to about the same degree. Puzzling questions obviously remain.

It is also important to keep in mind that the Justices differ in the extent to which their decisions line up with their personal views, and that the correlations do not show up in all types of cases. So it is fair to say that, even accepting the studies as correct, some Justices are less political than others when rendering decisions, and in certain types of cases politics appears to have less of an impact.

A more measured appraisal is Jack Balkin's statement in a posting on this blog: "The Supreme Court's decisions in a small number of hotly contested areas are strongly influenced by the ideological views of its members."

In contrast to studies of the Supreme Court, the evidence that judging is personal politics is less strong with respect to the lower federal courts and lower state courts. In their book Segal and Epstein admit this, although they couch it in terms that perhaps obscures the differences. At least for lower courts, studies by Frank Cross and others have found that, while certain correlations between legal decisions and personal views show up, in large part the decsions appear to be based on the law. Studies of federal district court judges show that they usually adhere to precedent. Again, not enough studies have been done to be sure, but the bulk of the studies so far indicate that law, not politics, determines most lower court decisions.

Against this general trend, however, some lower court judges appear to render decisions more highly correlated with their personal politics than others. That is precisely what makes Judge Alito's pattern of decisions a matter of concern. A recent NYT article which examined Judge Alito's decisions found that "with few exceptions, he has sided with employers over employees in discrimination lawsuits and in favor of corporations over investors in securities fraud cases."

Assuming the report is correct, in these types of cases it appears that Alito has allowed his personal views freer reign, in contrast to the bulk of lower court judges who appear more restrained. This suggests the possibility that Justice Alito (if confirmed) may be like Douglas and Rehnquist in the sense that, in certain classes of cases, his decision can be predicted with 90+ percent accuracy simply by knowing who the parties are. That kind of judging is personal politics.

But this post is not about Alito.

There is no doubt that judges have the power to issue decisions that are based on their personal views, and the skill to couch these decisions in legal argument (the law is indeterminate in this sense at least). And there is also no doubt that certain legal standards by their nature call upon value-based decisions or evoke personal responses from judges. That is a far cry, however, from asserting that judging is just personal politics cloaked in law.

In my most cynical law professor moments, I too think that judging is politics (remember Bush v. Gore!). But that was not my dominant experience as a lawyer. And that was not my experience when I drafted bench memos and opinions as a law clerk to a judge. Legal rules constantly boxed us in, setting constraints. You could usually come up with some kind of argument that pointed toward a desired outcome, to be sure, but that does not mean these arguments were winners (that is, legally persuasive). There were rules, and usually the rules pointed in one direction or another, even when there was room for discretion. In cases like this the decisions are, by and large, determined by the law, not the values or political views of the judges.

Anyone who has practiced law or has been a judge knows this. And it has been repeated innumerable times, even by skeptical legal thinkers, from Holmes to Llewellyn to (Crit) Duncan Kennedy.

So why am I repeating it at such length? The assumption that judging is personal politics is pervasive. At least for now, this ready assumption is incorrect when applied to the bulk of judges in the bulk of their cases. But it is one of those beliefs that has the capacity to become self-fulfilling. There is nothing to stop judges from becoming "politicians in black robes," if that is what they come to see themselves as. Most of the students in my Jurisprudence class--likely a few future judges amongst them--already think that.

Comments:

Balkin's more modest claim that ideological preferences strongly influence judicial decisionmaking in "hotly contested areas" poses an interesting question: Is there something distinctive about cases that implicate "hotly contested" (often social) issues that suggests they are not appropriately the province of judicial review?

Another question I have is whether there might be alternative, pre-political explanations for a range of decisions from one (ostensibly ideologically driven) judge, such as those which cite the judge's favored (and presumably consistent) mode of constitutional interpretation? Does an individual judge's favored mode of constitutional interpretation or personal conception of the proper function of the SCOTUS in a democracy necessarily correlate with a discrete set of policy preferences?
 

I've been reading Nathan Newman's arguments over the Supremes and judicial review.

It is clear that if presented with a glass filled to the halfway point with any substance, the decision whether to describe it as half full or half empty will come as the result of bias. That's what defines hard cases. The question is not whether there is bias at all, but whether the arguments that are wrapped up with it are understandable, if not agreed with, the others involved in the case or society at large. A court is a theater and a competition. In any proceeding that's not part of a crisis I hope I'd be able to recognize when an argument I do not agree with on philosophical grounds wins the day in court.
The moral tension written into in all the courtroom dramas on TV is based on this. Odd as it may seem it's a lot like tennis or basketball. My team win every time, and more importantly it's not always a question of morality.
But in order for any system to work it has to be in some sense enclosed, and we live in -capitalism is made up of- a constant state of crisis. And the question becomes whom do you trust to have the dual responsibility to one's own conscience and to the law, that is specifically to others who do not share their beliefs? That's the basis of the argument over judicial review, or at least how I would define it.
I annoyed someone recently -religious- when I said bluntly that religion, as theology, has no place in a courtroom; no more than ideology. I clarified my statement this way: A court is a place where a Sikh may prosecute a Christian defended by a Jew, before a Buddhist judge, to a jury of Hindu's, Janes and Muslims. Whatever your ideology, bias, or faith, you must be able to communicate and describe that faith to those who do not share it. That ability, as craft marks a good jurist. Beyond that it's simply politics as to whether that person gets the job or not; and that's as it should be (and there should be no deference to the executive etc...)
There is politics in judging. What J.B. would call 'high' politics.
 

Sorry about the sloppy language.
It's been a long week
 

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