Sunday, November 17, 2019
It is no secret that, over the past thirty years, the nomination of judges to the federal courts, particularly to the United States Supreme Court, has become increasingly contentious and partisan. The nominations of Clarence Thomas and Brett Kavanaugh underscored how divisive and polarizing this process has become, with confirmation decisions often split along party lines. The likely reason is that members of the United States Senate form opinions regarding how a potential justice is likely to interpret the Constitution and rule in critical cases, such as those involving abortion, executive power, immigration, and the death penalty. These opinions arguably reflect beliefs regarding a nominee’s ideology, and how that ideology will influence a justice’s decisions in specific cases.
But does ideology really motivate judicial decision-making, such that judges make decisions based primarily on their policy predilections?
Based on numerous studies and a large volume of data, the answer depends on: (1) the judge’s placed in the judiciary hierarchy (e.g., federal district court versus the United States Supreme Court; (2) the specific legal issue under consideration; (3) institutional considerations, including a desire to maintain a court’s institutional legitimacy; (4) a judge’s approach to constitutional interpretation and beliefs concerning the value of precedent; and (5) the composition of a court. In short, ideology does not play nearly as significant a role as many politicians believe because judges decide cases under internal and external constraints that render ideology-based decision-making infeasible. Put simply, courts are not as political as many believe.
First, empirical evidence reveals that a judge’s place in the judiciary hierarchy directly correlates with the likelihood that ideology will motivate decision-making. For example, studies have shown that federal district court judges do not decide cases on the basis of ideology. However, in the appellate courts, including the United States Supreme Court, some evidence exists that ideological considerations are relevant, although not dispositive, considerations. This is not surprising. After all, district court judges would be ill-advised to made decisions based on ideology because the likelihood of reversal by a circuit court of appeal would be high. At the appellate level, though, judges are less constrained because the Supreme Court only grants certiorari in a small number of cases. Thus, because appellate courts are, as a practical matter, often the courts of last resort, and because their decisions typically involve important policy matters, ideology is more influential, although certainly not the sole motivation underlying case outcomes.
Second, the extent to which ideology matters depends on the legal issue before the courts. Some issues, such as those involving patent law, admiralty law, and the bankruptcy code, do not implicate ideological considerations and thus render ideology irrelevant. In addition, in many cases, it is difficult to ascertain precisely how a specific legal issue or outcome fits neatly into a particular ideology. For example, cases involving the Commerce Clause or the level of deference that should be afforded to administrative agencies do not depend or even involve ideological considerations. Furthermore, it is challenging to operationalize and accurately characterize a particular judge’s ideology; thus, attempting to label judges as liberal or conservative fails to account for the nuances in that judge’s ideology and judicial philosophy. And in many instances, judges’ decisions are inconsistent with their perceived ideology. Indeed, in Texas v. Johnson, Justice Antonin Scalia wrote for the majority and held that prohibitions on desecrating the American flag violated the First Amendment, even though Scalia openly admitted that he despised such acts. Moreover, the fact that many cases are decided by votes of 9-0, 8-1, or 7-2 suggests that ideology alone is not the driving force underlying most decisions at the Supreme Court.
Third, institutional considerations, particularly at the Supreme Court, influence the justices’ decision-making process. When making decisions, the Court must consider the effect of a particular ruling on its institutional legitimacy and on principles of federalism, separation of powers, and the degree of deference afforded to the coordinate branches. As such, in many cases, ideology cannot – and is not – the sole or even primary factor underlying the Court’s decisions.
Fourth, many decisions, including those that involve divisive social issues, result from differences among judges regarding interpretive philosophies and the value they place on precedent. On the Supreme Court, for example, some justices embrace originalism, which broadly speaking (and without going into depth about originalism’s variations) means that the Constitution’s words should be interpreted based on the Founders’ understanding of those words when the Constitution was ratified. Other justices embrace an approach known as living constitutionalism, which generally states that the meaning given to the Constitution’s provisions may change based on contemporary norms, circumstances, or problems that did not exist when the Constitution was ratified. Likewise, judges assign different values to precedent based in part on the recency of a particular precedent, the degree to which they adhere to stare decisis, and their view of whether a prior case was rightly decided.
Fifth, the composition of a court is likely to have a substantial impact on the outcomes judges reach. Not surprisingly, a court composed of mostly liberal judges is likely to issue more progressive decisions, while a mostly conservative court is likely to issue more conservative decisions. Often, however, the dynamics are more complicated. Judges may, for example, issue narrow decisions in particular cases to ensure a majority or to placate judges who might otherwise issue highly critical dissenting opinions. The point is that judicial decision-making results not from strictly legal considerations, but from the political dynamics among a court’s members.
Ultimately, therefore, the claim that judges base decisions on ideological considerations is overly simplistic and largely inaccurate. The truth is that judges make decisions based on many factors and, in the vast majority of cases, particular outcomes cannot be attributed solely or even significantly to ideology. Simply put, courts are not as political as some might believe.