Academic journal article The Yale Law Journal

Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals

Academic journal article The Yale Law Journal

Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals

Article excerpt

In traditional legal analysis, scholars take for granted the effect of Supreme Court doctrine. Lower courts are presumed to adhere to the self-enforcing principle of stare decisis and to apply the doctrines of higher courts to the particular facts of the underlying case.(1) Precedent reputedly controls lower court decisions.(2) Whether such obedience to legal doctrine occurs as routinely as this analysis suggests, however, has not been adequately addressed in the legal literature. Indeed, there are few empirical studies by legal scholars bearing on the matter at all.(3) In this Essay, we go to the heart of the issue and ask the following question: If judges have personal or partisan policy preferences, why would they follow established legal doctrine when it conflicts with those preferences? While there is undoubtedly more than one valid explanation for principled adherence to legal doctrine, we suggest that the prospect of a "whistleblower" on the court--that is, the presence of a judge whose policy preferences differ from the majority's and who will expose the majority's manipulation or disregard of the applicable legal doctrine (if such manipulation or disregard were needed to reach the majority's preferred outcome)--is a significant determinant of whether judges will perform their designated role as principled legal decisionmakers. We do more than merely propose this theory; we test it empirically and find substantial support for our claim.

To be sure, legal doctrine endorsed by the Supreme Court plays a critical role in the decisionmaking of federal jurists, and it would be an overstatement to claim that most judges casually disregard doctrine when it stands in the way of reaching their desired policy outcome. Nonetheless, much of the scholarship simply assumes the sincere application of legal doctrine without considering the possibility that it may at times be nothing more than a convenient rationalization for political decisionmaking.(4) Indeed, many legal scholars explicitly discard the proposition that judges disregard legal doctrine in favor of partisan or ideological policymaking, or ignore the proposition with silent disdain, even in the face of reputable empirical studies in political science demonstrating the existence of such subversions of legal precedent and doctrine.(5)

The traditional position has been challenged by legal realists, critical legal scholars, and political scientists, who are all highly skeptical of the practical importance of legal doctrine. They contend, and empirically demonstrate, that judges often decide cases according to their political proclivities and use precedent, if at all, as an ex post facto justification for their decisions. This scholarship challenges the presumption that judges follow the law out of a sense of responsibility or role orientation. While the Supreme Court can theoretically play a disciplining role by enforcing adherence to doctrine on appeal, the Court's limited resources may preclude effective control.(7) According to the attitudinal model, lower-court obedience to legal doctrine has little practical effect in determining judicial decisions.(8)

Just as practitioners of the traditional position have ignored political variables, those in the other camp (legal realists, critical legal scholars, and political scientists) have paid little heed to the role legal doctrine might play in judicial decisionmaking.(9) Indeed, many of their claims of political decisionmaking fail to incorporate any legal variables.(10) For the most part, these scholars stand steadfast in the belief that the explanatory value of legal variables is at best not capable of being tested or, as is more likely, nonexistent.(11)

The battle over the significance of doctrine has persisted without truly being joined. Traditional legal scholars have assiduously guarded their disciplinary turf against outsiders as have those promoting the more cynical explanations of judicial decisionmaking. …

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