The Several Meanings of "Politics" in Judicial Politics Studies: Why "Ideological Influence" Is Not "Partisanship"

By Tamanaha, Brian Z. | Emory Law Journal, May 1, 2012 | Go to article overview

The Several Meanings of "Politics" in Judicial Politics Studies: Why "Ideological Influence" Is Not "Partisanship"


Tamanaha, Brian Z., Emory Law Journal


INTRODUCTION

Talk about judicial politics is ubiquitous in the press and academia today. Discussions of this topic, unfortunately, are often vague or inconsistent about the precise meaning of politics in judging. This Essay explores several core meanings of judicial politics to help identify what is, and what is not, inappropriate about politics in the context of judging. The failure to mark differences between these meanings and their implications, I argue, distorts matters and has the potential to undermine our judicial system.

The New York Times recently ran an editorial titled Politics and the Court sharply criticizing Justices Antonin Scalia and Clarence Thomas for trampling the line between law and politics.1 The Justices effaced this line, according to the editorial, when they took part in a political gathering sponsored by Charles Koch-"the conservative corporate money-raiser"2-while Citizens United v. FEC3 was pending before the Court.4 The Times also castigated Scalia for issuing "a rambling, sarcastic political tirade" in a recent dissent.5 Quoting Professor Lucas Powe's view that Scalia "is taking political partisanship to levels not seen in over half a century," the editorial added that "Justice Thomas is not far behind."6

The editorial equivocates about the role of politics in Supreme Court decisions, asserting, "Constitutional law is political. It results from choices about concerns of government that political philosophers ponder, like liberty and property. When the court deals with major issues of social policy, the law it shapes is the most inescapably political."7

The editorial then seemingly does a U-turn:

To buffer justices from the demands of everyday politics, however, they receive tenure for life. The framers of our Constitution envisioned law gaining authority apart from politics. They wanted justices to exercise their judgment independently-to be free from worrying about upsetting the powerful and certainly not to be cultivating powerful political interests.8

The Times editorial implicitly gestures at a distinction between the high politics of principle and grand social policy, and the low politics of crass, left- right, Republican-Democrat partisanship.9 A century ago, Felix Frankfurter pointed to the same distinction, positing, "[C]onstitutional law, in its relation to social legislation, is not at all a science, but applied politics, using the word in its noble sense."10 Another political scientist further asserts that high politics can be understood as "consistent ideological policymaking," a positive feature that keeps law responsive to evolving extralegal views and circumstances.11 "Problems emerge only when judges appear to decide on the basis of petty partisanship, forsaking high politics for low."12

Making no distinction between high and low politics, a Washington Post article (published a few days after the Times editorial) described judging in bluntly political terms: "Party affiliation is not a perfect predictor of a judge's behavior, but studies have shown that Democratic and Republican nominees vote differently on some ideologically charged issues, such as abortion, gay rights and capital punishment."13 The point of the article is that President Obama has a major opportunity to reshape the political orientation of the federal courts through his judicial appointments:

When he took office, Democratic appointees had small majorities on two appeals courts-the New York-based 2nd Circuit and the 9th Circuit. Obama's nominees have also given Democrats control of the 4th Circuit and the 3rd Circuit, which covers Pennsylvania, New Jersey and Delaware.

The 4th Circuit is an influential voice on national security and one of the appellate courts expected to hear challenges to the health-care overhaul law. It has a 9 to 5 Democratic majority, because of four Obama appointees.14

Political scientists who do empirical research on courts in a field known as "judicial politics"15 and conduct "studies" like those alluded to by the Post16 also frequently describe judging in political terms. …

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