So building off my comments from yesterday I’d like to raise the issue of what political science research has to say about the legitimacy of judicial institutions, point out an apparent discrepancy in research on different aspects of our legal system, and ask (somewhat provocatively) what our role is as academics in informing the general public about the “realities” of how that system works when they seem to operate in stark contrast to traditional understandings of what our legal system is designed to do.
First, starting with Pritchett (1942), decades of behavioral research reveals that judges vote disproportionately in favor of outcomes that are consistent with their political preferences. These results stand in direct contrast to the notions that unelected judges derive authority from their expertise and ability to act as unbiased “interpreters of the law.” Now clearly we need some sort of third party arbitrators to resolve disputes that inevitably arise between people in our society – the question is why do judges get to make those determinations. The answer according to democratic theory is because they are experts in legal interpretation and will make judgments according to that expertise. Empirical findings however reveal the strong influence of other factors including political preference and ideology. Concerns about the equal administration of justice and the fairness of judicial outcomes are necessarily implicated when outcomes have more to do with the idiosyncratic preferences of who is on the bench than what the law requires under particular circumstances. Now this is not really the fault of the framers – they didn’t know better than to put their faith in traditional notions of legitimate judicial authority deriving from objective exercise of legal expertise – but after 50 years of empirical research don’t we know better now? Isn’t it time to reconcile outdated notions of judicial authority with current understandings of influences on judicial behavior? Political scientists have seemed content with demonstrating the fallacy of formalistic notions of legal decision making over the last half century – but we haven’t really adequately dealt with the normative implications of these findings.
More than this, research on public opinion on the legal system seems to celebrate the fact that citizens generally hold the courts and judges in high esteem compared to other institutions and political officials based on what Gibson and Caldeira have called “legitimizing myths” about how judges and the court system operates. Is this really cause for celebration? Should we be happy that people come to value courts based on misconceptions about how they operate? There is even research that suggests that people can hold courts in high esteem, at the same time they understand that political factors often come into play in the decisions of judges. Shouldn’t someone be pointing out the inconsistency in these two beliefs if part of what our legal system is designed to do is treat individuals equally without bias?
Now of course as someone who has been assigned the role of “guest blogger” my comments here are intentionally designed to be provocative. But I guess I’m wondering what the larger role of academics is in shaping public perceptions of the political institutions that are the subject of our research. The issue seems to come to a head whenever a new Supreme Court justice is nominated. Political scientists often want to throw tomatoes at C-SPAN when we hear judges talking about being umpires, objectively calling balls and strikes, because it is so contrary to our understanding of the judging in the legal system actually works. But the dog and pony show has a purpose. We, as a society, need our myths. OR we need a completely different justification of why judges get to make the decisions they do. To debunk the former without coming up with the latter would cause extreme discomfort if citizens started to really think about the democratic implications of what we do as empirical scholars. Maybe it’s a good thing that they don’t as a matter of routine. But to what extent to we have an obligation to point out these inconsistencies between the unrealistic requirements of democratic theory and the way the legal system actually works…
Check out our new book!!!
RSS Feed
-
Alumni
Motigo
jly
ray
abwhitford
bonneau
paulmcollinsjr
rhoward103
damoncann
slindquist
mgannhall
ecb123
Nancy Rapoport
rfording
Here’s two responses to an interesting post.
First, if we’re teaching this honestly, we have to admit to students that part of the reason courts exist has nothing to do with democratic theory or fairness, and everything to do with politics. As Keith Whittington and Mark Graber have shown, politicians use courts to dodge accountability, to maintain the stability of political coalitions by kicking issues away, and by enforcing national political norms on outliers (also see Carrubba 2009). That might explode our myths, but I think it’s important for students to see how the Courts are part of the bigger political picture. If one takes the Ackermanian “higher lawmaking” viewpoint seriously, than this is actually a good thing: law is ultimately a type of political vision, not a set of rules to applied in a fair or biased fashion.
Second, there’s research (e.g. Klein 2003) that argues that judges care a great deal about legal goals such as stability and legal cohesion, either for their own sake, or for the sake of impressing appropriate audiences. Perhaps the extra respect granted to judges stems from the fact they they are thus semi-partisan, as opposed to the full-throated partisanship of elected officials. As long as that is the case (and perhaps you disagree), half a loaf sounds better than the alternative–whatever that might be. Even if you don’t buy this notion of judicial goals, law clearly acts as a constraint, if not necessarily in tough cases, then at least in circumscribing what types of cases can be brought, and the framework in which these cases are decided (e.g. Richards and Kritzer 2002).
Both good points – actually I am particularly fond of the stuff dating back to Landes and Posner (1975, I believe) arguing that courts are political institutions which are there to enforce and extend the will of current ruling coalitions increasing the value of political deals that are struck by the legislature. But this is certainly contrary to their democratic justification – the bill of goods citizens are sold as to why we should abide the influence of judges in our democratic system. It is also certainly contrary to the expectations of most LITIGANTS who go to court seeking fair and equitable treatment of their individual disputes.
I’m also with you on the law acting as a meaningful constraint in most cases– because legal decision makers take norms and theories of their own legitimacy seriously – but the fact is there are hard cases – and even post-postitivist theories of jurisprudence (Dwarkin, Ackerman) don’t adequately deal with the fact that part of the job of judges is to make distributive choices. Where those distributions are based on preferences of the decision maker rather than the law or meaningful objective criteria – the goals of fairness and equality before the law are illusory – and the legitimacy of using the state to enforce those outcomes is rightly brought into question. The fact that judges are well meaning or trying their best to follow the law is irrelevant in these instances without meaningful constraint.
I’m just suggesting it may be better to face up to this fact and come up with an alternative justification for judicial authority in such instance than stick with the fallacy. I have argued elsewhere that this suggests that perhaps we are selecting judges entirely the wrong way – they should be elected at the highest levels (where at least they would have some additional democratic authority to make distributive decisions in hard cases) and appointed at lower levels where norms and law acts as a meaningful constraint in a higher proportion of cases. Believe me – no one was less comfortable than me when I came to this realization – it is totally contrary to what I was taught in law school (and grammar school for that matter)– but given what we know about how judges make decisions it may be a better system if we are really concerned about the legitimacy of judicial outcomes in our constitutional system.