Academic journal article Vanderbilt Law Review

Judicial Politics and Decisionmaking: A New Approach

Academic journal article Vanderbilt Law Review

Judicial Politics and Decisionmaking: A New Approach

Article excerpt

Introduction

Perhaps no topic at the intersection of law and social science has generated as much research as the influence of political attitudes on judicial decisionmaking.1 One would think that summarizing it would be a nearly Herculean task, but it is actually straightforward: judicial politics matters.2 From Stuart Nagel's well-known comprehensive study of the effect of politics on state and federal supreme court justices conducted over a half century ago3 right up to the present day, study after study finds that the political orientation of judges influences their decisions.4 This finding is somewhat remarkable, given that many studies use the political party of the appointing president as the measure of political attitudes.5 The underlying effect of politics on judges must be potent indeed if such a blunt and unreliable measure of political attitudes can generate meaningful effects.

Despite the consistent finding that political attitudes influence judicial decisionmaking, there is a robust and heated debate on the topic that can nonetheless be simply summarized as follows: academics assert that attitudes influence judicial decisionmaking, but judges usually deny that politics matters.6 Consider the recent testimony by then-judge Gorsuch in his confirmation hearings. He insisted that the law will drive his decisions, not his politics.7 This position is hardly unusual. When they comment at all on the social science evidence suggesting that they are influenced by politics, judges tend to dismiss it.8 Political scientists continue to pile on evidence that politics influences judges, even though judges deny it.

What explains the divide between the evidence and the judges? Several reasons suggest themselves. First, judges might possibly be disingenuously denying the influence of their political attitudes. Like most public officials (and perhaps more so than most given the way they are selected and their lack of enforcement power), judges are highly protective of the legitimacy of their institution.9 The assertion that judging is politics by another means threatens the legitimacy of the judiciary. Second, maybe judges are reacting to the more numerous, mostly mundane legal issues that they must decide. As then-judge Gorsuch asserted at his recent nomination hearing, he agreed with his colleagues on the U.S. Court of Appeals for the Tenth Circuit in 97% of the cases they decided.10 Perhaps the law is determinate enough that most of the time, it leaves little room for political judgment.11 Judges also might incorrectly assume that political attitudes do not influence fact finding.12 After all, the day-to-day experience of judges is that the law is clear in most cases and they easily find consensus with colleagues possessing different political perspectives.

The explanation that most judicial decisionmaking is determinate applies perhaps the least to the U.S. Supreme Court.13 Judges' political attitudes might be less significant in lower court cases, in which judges often are constrained by precedent and address less politically contentious issues. Political scientists tend to emphasize those close, politically charged cases decided by the U.S. Supreme Court, rather than the ordinary disputes that occupy most judges, thereby producing different conclusions about the influence of political attitudes on judicial decisionmaking.

Third, perhaps the most intriguing account of the divergence between judges and the academy, is that judges might be oblivious to the role that politics plays in their decisionmaking processes. Judges perhaps feel that they "call them like they seem them," to use Chief Justice Roberts' umpire metaphor.14 Their attitudes and beliefs affect how they see facts, respond to arguments, and understand the law, but perhaps all of that operates in a way that is invisible to them. In effect, judges are what psychologists call naive realists,15 who believe they see the world through a clear lens, unaffected by political beliefs. …

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