Tuesday, October 25, 2005

Why politics matters with judges...

In discussing judges one is frequently told that political views are different from judicial views, that political philosophy is often different from judicial philosophy.

As an abstract point, this might be correct. But in practice, there is very good reason to believe that most judicial reasoning is little more than a legal rationalization of political prejudice.

There is now a fascinating support for this proposition posted over at the Volokh Conspiracy. A new article by Ward Farnsworth. Farnsworth looks at Supreme Court cases over the last 50 years and finds that the correlation between political ideology and decision-making runs about 95%.

Finally, there is a book-length study on this very point from Cambridge University Press: The Supreme Court and the Attitudinal Model Revisited, rightly arguing the depressing propostion that most judicial decision making is simply political policy-making under another name.

4 Comments:

At Tuesday, 25 October, 2005, Blogger dan said...

Indeed. As I pointed out on a post at Confirmthem, the consensus view of the political science types for at least three decades has been that what judges do on the bench is almost entirely shaped by their social, economic and political experiences prior to becoming judges. My 27 years of practice experience has led me to conclude, reluctantly, that they are right.

 
At Tuesday, 25 October, 2005, Blogger dan said...

Sorry to post again, but I had to take a break after I typed what I said in the prior post. If I had had time, I was going to add that when I was in graduate school in the ezrly 70's, the then hot trick was doing computer models to predict votes on Supreme Court cases. I suppose they would be considered crude by now, but they were amazingly accurate. None of the inputs had anything to do with judicial philosophy, and every term there would be a few votes by almost every justice that stuck out like a sore thumb; had the philospohy controlled the outcome, the votes would have been the reverse.

 
At Tuesday, 25 October, 2005, Blogger GrenfellHunt said...

Dan, you are absolutely dead right. I'm a little puzzled as to why so many find this so hard to see.

 
At Wednesday, 26 October, 2005, Blogger Tom P said...

GH, nobody should seriously dispute that judges are "pre-disposed" to outcomes that agree with their political bent. For judges with no guiding judicial philosophy, it's possibly the sole determinant of outcomes.

But if a candidate to sit on any court has consistently espoused a limited view of the judicial role and a commitment to some textual interpretation of the Constitution, then there's a discipline that applies if the candidate wants to be seen as having personal integrity.

It's a lot like joining a class to quit smoking -- the necessary discipline to stop doesn't come from within. It derives from the pressure of having publicly committed to quit. The same is true of judicial candidates who have strongly and publicly committed to originalism. It leaves them only one path (the textualist path) to the outcome they desire. If the only path won't get them there, many won't go.

That's why I insist on a strong, loudly stated dedication to originalist principles. It acts as a brake on the natural tendency toward "whatever-seems-right" jurisprudence.

 

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