Political Versus Principled Judging

In discussing Justice Gorsuch’s much-discussed vote with the Court’s liberals in Dimaya v. Sessions, my L&L co-contributor, John O. McGinnis remarked in passing, “originalism cannot be captured by [the] attitudinal model which sees judges as politicians in robes voting for policies they like.”

Yes. . . .  But.

I want first to chat about the attitudinal model and judging generally. I plan to consider McGinnis’s passing claim about originalism and Gorsuch’s vote (with which I don’t necessarily disagree, but . . .) in a subsequent post.

The attitudinal model, as McGinnis points out, posits judges are policy-motivated actors. This applies most of all to Supreme Court justices because, sitting on the highest court, there is no possibility further legal appeals. (Hotly contested among judicial scholars in political science is the extent to which extra-judicial mechanisms, most notably the possibility of congressional discipline, but also constitutional amendment, might constrain Supreme Court decision making and so constitute non-legal routes of “appeal.”) The claims of the attitudinal model stand in stark contrast to the claim, and aspiration, that judges base their decisions on objective application of neutral legal rules.

As a normative matter, I would always hope that any judge, no matter his or her partisan ideology or affiliation, would neutrally implement his or her considered legal philosophy in judicial decisions without an eye to whether the decision advances the judge’s partisan policy preferences.

Indeed, I believe, for the most part, most judges, even Supreme Court judges, consistently make non-outcome based legal decisions. At the same time, I tend to believe most of the studies in political science showing statistical associations between (proxies for) partisan ideology of judges, particularly Supreme Court justices, and their decisions. I plan to explain in my next post why these two claims do not, as might fairly seem, flatly contradict one other.

In this post, however, I want discuss political judging more generally in the context of the American constitutional system. Indeed, without ever endorsing unprincipled judging, it is nonetheless the case, from the outset, constitutional framers anticipated the likelihood of some political judging. While certainly intent on inculcating a judiciary with aspirations to make law-based rulings, they nonetheless were too clear-eyed to eschew a hefty dose of realpolitik in how they believed judges would behave.

There is no reason to excuse judges as an entire class from Madison’s observation in Federalist 10, “It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good. Enlightened statesmen will not always be at the helm.” It is too much to hope only non-political judges will always people the bench.

More pointed is Alexander Hamilton’s discussion of political judging in Federalist 81. It’s worth quoting him at length. When reading the quotation, however, note Hamilton fully anticipates policy-oriented judging at least occasionally. To paraphrase Madison, Hamilton did not assume enlightened judges would “always be at the helm.” Secondly, however, he thought professional attributes and institutional environment would set limits on the willingness and ability of judges to indulge in policy making whatever partisan policy inclinations they might have. Of note, for Hamilton, the institutional environment “alone” provides “complete security” against judicial intrusion into legislative policymaking. Here he writes explicitly of the impeachment power.

It may in the last place be observed that the supposed danger of judiciary encroachments on the legislative authority, which has been upon many occasions reiterated, is in reality a phantom. Particular misconstructions and contraventions of the will of the legislature may now and then happen; but they can never be so extensive as to amount to an inconvenience, or in any sensible degree to affect the order of the political system. This may be inferred with certainty, from the general nature of the judicial power, from the objects to which it relates, from the manner in which it is exercised, from its comparative weakness, and from its total incapacity to support its usurpations by force. And the inference is greatly fortified by the consideration of the important constitutional check which the power of instituting impeachments in one part of the legislative body, and of determining upon them in the other, would give to that body upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations.

Note the realpolitik in Hamilton’s expectation of judicial behavior. “Particular misconstructions and contraventions of the will of the legislature may now and then happen.” He expected, despite everything following in the paragraph, judges would occasionally impose on the legislative policy process. Hamilton assumed judges would be policy motivated and would, some of the time, indulge their policy inclinations in judicial decisions.

For Hamilton, the “complete security” against a judiciary far-gone in political decisions rested in the impeachment power. Did this enforcement mechanism soon turn into an empty threat?

Chief Justice Rehnquist famously argued in his book on impeachment that the failure of the Senate to convict and remove Samuel Chase in his Senate impeachment trial set a precedent that justices would not be impeached for policy disagreements. I’ve always wondered about the claim, given Rehnquist also noted federal judges stopped making partisan harangues from the bench after the Chase affair. (So perhaps the impeachment had its effect, to deter judicial misbehavior.) Nonetheless, supposing Rehnquist’s claim to be correct, Hamilton’s “complete security” against judicial policymaking hasn’t been invoked for over 200 years.

To be sure, as Robert Dahl pointed out in his famous 1957 article, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker,” we should not anticipate Supreme Court policy making will often be controversial even when it occurs. The nomination and confirmation process almost always guarantees appointment of Supreme Court justices from the political mainstream of American (elite) society.

The few times the Supreme Court faced serious political trouble from the political branches of the government resulted from ideologically sharp and deeper-than-usual electoral turnover in those branches. Because of the speed and depth of changes in the political branches, the policy preferences of the justices on the Court became significantly misaligned with those branches. This occurred most notably in the shift from Federalist control of the national government to Jeffersonian control after the 1800 election (leading to Chase’s impeachment) and the 1932 and 1936 elections (leading to FDR’s court-packing plan).

More politically ambiguous were successful congressional efforts to change the number of justices on the U.S. Supreme Court in the 1860s, first increasing the number to ten in 1863, then decreasing the number to seven in 1866 (preventing President Andres Jackson from appointing any justices), then increasing the number to nine again in 1869.

These dramatic shifts in institutional preferences of the political branches occur only rarely, however. Thus, as a practical matter, Supreme Court justices can pursue policy in their decisions without fear of impeachment. In a two-party system in which neither party usually holds an overwhelming majority in both congressional chambers, Supreme Court justices can, with near impunity, pursue political goals that align with the policy preferences of only one of the two congressional parties. In ordinary times, neither party alone holds sufficient legislative power to impeach and remove policy-oriented justices on the grounds of policy disagreement.

As a practical matter, then, impeachment as security against judicial usurpation of legislative policymaking will hardly ever bite. Per the institutional mechanism Hamilton proposed as providing “complete security” against the prospect of significant judicial policymaking, it has turned out to be a paper tiger, except under exceptional circumstances.

Noting this, however, does not answer the question of how often sitting Supreme Court justices might indulge their policy preferences, let alone whether originalist justices indulge these preferences less than other justices, or even not at all. I’ll chat more about those questions in my subsequent post. The point here is, even at the founding, few thought judges immune from the motive and means to engage in policymaking, at least occasionally. Note that no one has argued judges should behave this way, at least not generally. As a matter of realism, however, commentators since the founding have recognized judges will sometimes act politically in their rulings. So a weak version of the key claim of the attitudinal model has, as it were, always been with us. The questions remain, how much do they do so, and how much might changes in the institutional environment anticipated at the founding, and since the failed Chase impeachment, changed the willingness and ability of judges to indulge their political preferences in their decisions?

Reader Discussion

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on May 11, 2018 at 13:36:33 pm

For whatever reason, we endure that which we ourselves created.

This nation was far better off, far more harmonious when the OVERWHELMING PREPONDERANCE could not name a single Black Robe on SCOTUS. Regrettably, they have become Rock Stars and we their adoring (or loathing) concert attendees.

Then again, Rogers seems a little dismissive of the intense partisanship surrounding confirmation battles. It is clear that the Black Robes must mask their preferences yet it is known to all Senators what those preferences WILL BE and it is in fact EXPECTED that they will be true to those preferences. If not, why all the hullabaloo?

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Guttenburgs Press and Brewery
on May 11, 2018 at 14:49:44 pm

Judges are not immune from the ideological pressures (as much as I wish they were), but nor do I believe the Founders were unaware of this. They built in safeguards to prevent unaccountable judging. As Thomas Jefferson said:

"To consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under , Start insertion,the, End, despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionim,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective countroul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corrputions of time & party it’s members would become despots. it has , Start insertion,more wisely, End, made all the departments co-equal and co-sovereign within themselves. " https://founders.archives.gov/documents/Jefferson/98-01-02-1540

The limits to judges fall in several areas. If a judge is judging in bad faith, their judgement should be so outside the norm that they could get impeached for them. But if it is a good faith dispute on an area, the elected branches have two more options. First, as you mention, they could pack the court by adding new members to it that agree with the current political branches. This is often seen as illegitimate, but if both houses of congress and the President disagree think the Court is wrong (and they are willing to suffer the political ramifications for what they are doing), there isn't anything necessary illegitimate about what they are doing. They just think the Court is wrong, and are trying to make the Court better protect the Constitution. Isnt that what the members of Congress and the President swore an oath to do? It is, as they say, harsh medicine, and should rarely be invoked (because it should be rarely necessary and rarely would the majority of both houses and the President agree that such an extreme measure needed to be taken. But it has been done before and it will be done again.

The second limit the Founders added is for Congress and the President to limit the appellate authority of the Court. If the political branches feel that the Court is wrong in a given area, rather than packing the Court, it could remove the court's jursidiciton and potentially all federal jurisdiction over such questions. This would return those questions (over the federal consitution) to the state supreme courts. This re-enforces federalism and allows each state to decide what the Constitution means for itself rather than the Surpeme Court deciding for them.

The Founders were not naive to the thrall of party and politics that even judges can fall into, and they built in various safegaurds to prevent out of control judges. Maybe we are not in a time when those safeguards should be invoked, but they are there.

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Devin Watkins
on May 11, 2018 at 16:03:55 pm

Irrespective of political bias, here are some thoughts of Mr. Madison that may offer some options:

[R]efusing or not refusing to execute a law to stamp it with its final character...makes the Judiciary department paramount in fact to the Legislature, which was never intended and can never be proper.
James Madison, letter to John Brown, October, 1788"

"I acknowledge, in the ordinary course of government, that the exposition of the laws and Constitution devolves upon the judicial. But I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments.
James Madison, speech in the Congress of the United States, June 17, 1789"

"Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the Judicial authority.
James Madison, speech in the Congress of the United States, June 18, 1789"

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.