Are Judges Political?

Are Judges Political?: An Empirical Analysis of the Federal Judiciary

CASS R. SUNSTEIN
DAVID SCHKADE
LISA M. ELLMAN
ANDRES SAWICKI
Copyright Date: 2006
Pages: 177
https://www.jstor.org/stable/10.7864/j.ctt12879t7
  • Cite this Item
  • Book Info
    Are Judges Political?
    Book Description:

    Over the past two decades, the United States has seen an intense debate about the composition of the federal judiciary. Are judges "activists"? Should they stop "legislating from the bench"? Are they abusing their authority? Or are they protecting fundamental rights, in a way that is indispensable in a free society? Are Judges Political? cuts through the noise by looking at what judges actually do. Drawing on a unique data set consisting of thousands of judicial votes, Cass Sunstein and his colleagues analyze the influence of ideology on judicial voting, principally in the courts of appeal. They focus on two questions: Do judges appointed by Republican Presidents vote differently from Democratic appointees in ideologically contested cases? And do judges vote differently depending on the ideological leanings of the other judges hearing the same case? After examining votes on a broad range of issues--including abortion, affirmative action, and capital punishment--the authors do more than just confirm that Democratic and Republican appointees often vote in different ways. They inject precision into an all-too-often impressionistic debate by quantifying this effect and analyzing the conditions under which it holds. This approach sometimes generates surprising results: under certain conditions, for example, Democrat-appointed judges turn out to have more conservative voting patterns than Republican appointees. As a general rule, ideology should not and does not affect legal judgments. Frequently, the law is clear and judges simply implement it, whatever their political commitments. But what happens when the law is unclear? Are Judges Political? addresses this vital question.

    eISBN: 978-0-8157-8235-3
    Subjects: Political Science, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-xii)
  4. 1 Studying Judges with Numbers
    (pp. 1-16)

    In the last two decades, the United States has witnessed some exceedingly heated debates about the composition of the federal judiciary. Are judges “activists”? Should they stop “legislating from the bench”? Are they abusing their authority? Or are they protecting fundamental rights in a way that is indispensable in a free society? What, exactly, are they doing, and what should they do differently?

    Several American presidents have sought to populate the federal courts with judges who, it was hoped, were likely to rule in their preferred directions. In issues including abortion, separation of church and state, environmental protection, and criminals’...

  5. 2 Ideological Votes and Ideological Panels
    (pp. 17-46)

    We examined a total of 6,408 published three–judge panel decisions and the 19,224 associated votes of individual judges.¹ The cases involved abortion,² capital punishment,³ the Americans with Disabilities Act (ADA),⁴ criminal appeals,⁵ takings,⁶ the Contracts Clause,⁷ affirmative action,⁸ racial discrimination cases brought by African American plaintiffs under Title VII of the Civil Rights Act of 1964,⁹ sex discrimination,¹⁰ campaign finance,¹¹sexual harassment,¹² cases in which plaintiffs sought to pierce the corporate veil,¹³ the National Environmental Policy Act (NEPA),¹⁴ gay and lesbian rights,¹⁵ congressional abrogation of state sovereign immunity,¹⁶ First Amendment challenges to commercial advertising restrictions,¹⁷ challenges to punitive damage awards,¹⁸...

  6. 3 Nonideological Voting and Entrenched Views
    (pp. 47-58)

    Our three hypotheses might be falsified in different ways. The most dramatic way of falsifying them would be to demonstrate that there is no difference between Republican appointees and Democratic appointees—that in relevant areas, the political party of the appointing president makes no difference. If this were so, then all three hypotheses would be proved wrong. Call this a finding of nonideological voting.

    The most interesting, though more limited, way of falsifying them would be to show that party matters but that panel does not—that judges differ along predictable lines, but that their voting patterns are unaffected by...

  7. 4 Explaining the Data: Conformity, Group Polarization, and the Rule of Law
    (pp. 59-86)

    What accounts for these patterns? Why are our three hypotheses sometimes confirmed and sometimes rejected? For purposes of analyzing our findings, we should distinguish among three categories of cases: nonideological voting; entrenched views; and the ordinary pattern of cases, in which all three hypotheses are confirmed.

    Consider first the contexts in which all three of our hypotheses are rejected. In those contexts, Republican and Democratic appointees do not much disagree, and hence the political party of the appointing president will not affect outcomes. In many areas, the political affiliation of the appointing president is undoubtedly irrelevant to judicial votes. For...

  8. 5 The Case of Big Decisions: Of Segregation, Abortion, and Obscenity
    (pp. 87-106)

    Thus far, our picture of judicial behavior has been relatively static. We have not examined changes over time. But it is natural to wonder whether ideological agreements might grow or dampen over long periods. A great deal of evidence suggests that splits between Republican and Democratic appointees were much smaller before the 1970s, in part because the appointment process was much less politicized, at least within the lower courts.¹ For much of the nation’s history, lower court appointments were greatly influenced by senators in the relevant home state, and the senatorial role reduced the effects of ideology. And in key...

  9. 6 More Conservative than Thou? Judicial Voting across Circuits, across Presidents, and over Time
    (pp. 107-128)

    We now turn to three large sets of questions. First: Can some courts of appeals be shown to be more liberal than others? Do party and panel effects differ across courts of appeals? Second: Can presidents be ranked in terms of voting patterns of their judicial appointees? Is there a difference between the appointees of, say, President Reagan and President George W. Bush? Third: Is the federal judiciary becoming more liberal or, instead, more conservative over time? As we shall see, these questions are not easy to answer, but it is possible to make some progress on them, and we...

  10. 7 What Should Be Done? Of Politics, Judging, and Diversity
    (pp. 129-146)

    We have found that in many areas, there is a significant difference between the voting patterns of Republican appointees and those of Democratic appointees. We also have found that on unified panels, ideological tendencies are amplified—and that the tendencies of isolated appointees are dampened. A key result is that panels consisting of three Republican appointees show systematically different outcomes than panels consisting of three Democratic appointees. To a substantial degree, the ideological tendencies of courts of appeals are correlated with the percentages of appointees by Republican and Democratic presidents. And within the courts, ideological shifts over time have a...

  11. Conclusion: Law and Politics: A Mixed Verdict
    (pp. 147-150)

    No reasonable person seriously doubts that ideology, understood as moral and political commitments of various sorts, helps to explain judicial votes. Presidents are entirely aware of this point, and their appointment decisions are undertaken with full appreciation of it. Senators are aware of this point as well, and throughout American history, they have sometimes checked presidential choices for that reason. Of course, judges adhere to the law, but where the law is not plain, judicial convictions play an inevitable role.

    We have found striking evidence of a relationship between the political party of the appointing president and judicial voting patterns....

  12. APPENDIX
    (pp. 151-152)
  13. Notes
    (pp. 153-170)
  14. Index
    (pp. 171-178)
  15. Back Matter
    (pp. 179-180)