The evidence is not entirely one-sided, however. This offers convincing evidence that their personal views determined their decisions. Accordingly, in this type of case one could predict with a high degree of reliability the decision these Justices would render without regard to the specific facts or applicable law in the case. One study showed that Justice Douglas, for example, voted liberal in 94.3 percent of civil rights cases, whereas Justice Rehnquist voted liberal in only 4.5 percent of these cases. The certainty of many political scientists that judges are "politicians in black robes" is based upon empirical studies that correlate judges' legal decisions with attitudinal indicators (which is a stand in for their personal views). There is a strong suspicion that we can't trust accounts by judges, however, either because they are deluded about or concealing the real source of their decisions, so their denials doesn't count for much. Besides, judges insist, most cases don't invoke any particular personal value or political view. The fact that a high percentage of appellate decisions are unanimous, even when judges on panels have different political views, tends to support this position.
Most judges will deny that the substantial bulk of their decisions are determined by their personal politics. Times sure have changed.īut is this pervasive assumption correct? And how can we know for sure? If they made this argument today, however, it would sound redundant. At the time, the Crits were roundly attacked as exaggerators or nihilists. Judges can thus pick the outcome they desire. This attitude about judging brings to mind the Critical Legal Studies Movement of the 1970's and 1980's, a group of radical legal theorists at elite law schools whose mantra was "law is politics." The "Crits" argued that legal rules and standards are indeterminate. Given the pervasiveness of this assumption, it is no wonder that the public also increasingly thinks that judges decide cases based upon their personal views, as a couple of recent polls have indicated.Ĭloser to home, most of the law students in my Jurisprudence class are convinced that judging is politics, and that judges can pretty much do whatever they want to. Private attitudes, in other words, become public law.'" This is the core thesis underlying their book. Herman Prichett, another leading political scientist of the judiciary) "that judges 'are influenced by their own biases and philosophies, which to a large degree predetermine the position they will take on a given question. An informative new book, Advice and Consent, by Lee Epstein and Jeffrey Segal, political scientists who have conducted several important studies of judicial decision-making, states at the very outset (quoting C. Many social scientists who study judging also believe that the values and political views of judges determine their decisions. Tom Delay: first a Democractic judge recused himself, then a Republican judge did the same, then another Republican judge passed it off to a semi-retired judge who was a registered Democract but didn't contribute much to political campaigns.
That was also the underlying assumption in the spectacle surrounding the appointment of a judge to try Rep. That is the assumption behind the daily search to dig up and scrutinize anything that might bear on Judge Alito's political views. University of Chicago Law School Faculty BlogĮverywhere you look it seems to be almost taken for granted that the personal values or political views of judges have a determinative impact on their decisions. Rothman's Roadmap to the Right of Publicity Reporters Committee For Freedom of the Press International Economic Law and Policy Blog The Assumption that Judging On the Supreme Court (and Elsewhere) is Politics The Anti-Torture Memos (arranged by topic) The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC Sabeel Rahmansabeel.rahman at Ĭompendium of posts on Hobby Lobby and related cases
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