Judicial Politics and the Rule of Law

Charles Gardner Geyh - Indiana University Maurer School of Law

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According to legends dating back to the Renaissance, the ermine would rather die than soil its pristine white coat. The ermine so came to symbolize purity, and English judges adopted this symbol by adorning their robes with ermine fur. For their part, American judges took a more ermine-friendly approach, dispensing with the fur but retaining the ermine as a symbol. Wearing the “judicial ermine” thus reflected a commitment to “purity and justice,” and “the abandonment of all party bias and personal prejudice.” The Tennessee Supreme Court captured the essence of the myth nicely in 1872, when it wrote:

We are told that the little creature called the ermine, is so acutely sensitive as to its own cleanliness, that it becomes paralyzed and powerless at the slightest touch of defilement upon its snow-white fur. . . . And a like sensibility should belong to him who comes to exercise the august functions of a judge . . . . But when once this great office becomes corrupted, when its judgments come to reflect the passions or the interest of the magistrate rather than the mandates of the law, the courts have ceased to be the conservators of the common weal, and the law itself is debauched into a prostrate and nerveless mockery.

Although reference to the judicial ermine has fallen from common usage, the assumption it embodies—that when they don their robes, independent judges set aside their passions, prejudices and interests and follow the law—remains integral to the legal establishment’s traditional conception of the role that the judiciary plays in American government. That assumption has come under sustained attack by scholars and policymakers, leading to the question of whether there is enough truth to this “ermine myth” to make it one still worth defending, or whether the time has come to demythologize our understanding of what judges do and acknowledge that, truth be told, the ermine is just a glorified weasel. Put another way, can the rule of law survive judicial politics?

In the academic realm, law professors long operated on the assumption that judges decide cases by bracketing out extraneous influences and following the relevant facts and law. Doctrinal scholarship, which all but monopolized the pages of law reviews for generations, proceeds from the premise that legal doctrine matters above all else when it comes to understanding why judges do what they do—that the decisions judges make must be understood and critiqued with reference to applicable law. Meanwhile, many political scientists long posited that judges decide cases by following their ideological predilections. In light of findings generated by studies of Supreme Court decision-making, these scholars relegated the so-called “legal model” to the status of a total fabrication. More recently, however, a cadre of interdisciplinary scholars has bridged this divide with a flurry of empirical projects demonstrating that judicial decision-making is subject to a complex array of influences, including law, ideology, and others. The net effect of these recent interdisciplinary projects is to demonstrate, rather convincingly, that dichotomous arguments to the effect that judges categorically disregard the law and follow their policy preferences (or something else), or categorically disregard their policy preferences (and everything else) to follow the law, have been debunked.

In stark contrast to this emerging interdisciplinary, scholarly consensus on a more eclectic, nuanced, positive theory of judicial decision-making is the public policy debate over judicial independence, accountability, and selection, where the underlying assumptions about what judges do remain simplistic and stubbornly binary. The legal establishment maintains that judges who are buffered from political pressure will abide by their oaths of office and follow the law—hence the need for an independent judiciary that is insulated from popular and political control. Court critics posit that when left to their own devices, judges disregard the law and decide cases in a manner consistent with their policy preferences, strategic objectives, or personal feelings—hence the need for an accountable judiciary that is subject to popular and political control.

Why has the public policy debate remained pugnaciously dichotomous while the scholarly debate has moved toward eclecticism and consensus? By their nature, public policy debates aim at capturing the hearts and minds of the general public. Survey data reveal that the public thinks judges are influenced by legal and extralegal factors—meaning that the public’s impressions of what influences judicial decision-making is consistent with the findings of recent social science research. Surveys further show that the public retains considerable confidence in its judges. Taken together, these results imply that it may be foolish and unnecessary for the legal establishment to cultivate the pretense that judges are influenced by facts and law alone. Those same surveys, however, show that the ermine myth continues to hold sway, as sizable majorities believe that judges should be influenced only by the facts and law, and disapprove of the extralegal influences that they think occur. For the legal establishment openly to concede the inevitability of the extralegal influences that inform judicial discretion would be to undermine the myth and with it, potentially, the public’s confidence in the courts.

What next? One possibility is that the dichotomous public policy debate will persist into the foreseeable future without further consequence: judges will continue to say that they are slaves to the rule of law; critics will attack “activist” judges as symptomatic of a judiciary run amok; and the public will look askance at judges who deviate, but retain its faith in the ermine myth. Without disputing the impressive force of inertia, a series of developments, years in the making, renders this assessment unlikely. The latest campaign against “liberal judicial activism”; media coverage of an ideologically divided Supreme Court; partisan battles over nominee ideology in Senate judicial confirmation proceedings; publicized accounts of judges declining to disqualify themselves from cases in which the risk of extralegal influence seems obvious; and the advent of expensive, highly politicized state court election campaigns all cast doubt on assumptions that we are in a business-as-usual scenario in which the public’s continued faith in its judges and the rule of law is a foregone conclusion. A second possibility is that these events have put us on a path to crisis, but polling data showing continued public confidence in the courts belies the imminence of such a development. A third possibility—and the most likely—is that we will witness a gradual erosion of rule of law values as the public internalizes the lessons of recent developments and becomes increasingly skeptical of claims that judges simply follow the law and must remain independent of popular and political controls to do so.

The key for the legal establishment is to reorient the ermine myth itself. For myths to galvanize a community, a perceived truth must exist at their core. Although there is truth to the “myth” that independent judges follow the law, that kernel of truth is diminished because “law,” for purposes of the myth, has been characterized so rigidly, in terms more compatible with nineteenth century formalism than more flexible, contemporary understandings. If the primary justification for an independent judiciary is to bracket out extralegal influences and enable judges to apply the law as a kind of formula, then deepening skepticism over the rule of law and the value of judicial independence are inevitable.

It is possible, however, to step back and reaffirm the instrumental value of an independent judiciary in other terms that underscore the role judicial independence plays in promoting three discrete objectives: a more capacious rule of law (one that acknowledges the inevitability of judicial discretion and the role that different influences play in informing that discretion); due process; and just outcomes informed by a ubiquitous form of pragmatism that most judges employ in their decision-making. The claim that judicial independence promotes a more flexible rule of law, due or fair process, and just outcomes, is still “mythological” insofar as excessive independence can liberate judges to act upon other interests that interfere with these goals. That, however, is where mechanisms for judicial accountability must operate to backstop independence by pursuing the very same objectives.

Reorienting the ermine myth to say that independent judges uphold a flexible rule of law, preserve due process, and seek just outcomes will force the legal establishment to rethink its reform agenda. For generations, the mantra of reformers within the legal establishment has been to “depoliticize” or “take the politics out” of the judiciary. That view may be compatible with crumbling formalism but is ill-suited to coexist with a new construct positing that judges are properly subject to a range of extralegal influences, including “political” ones, insofar as they concern the art of governing fairly and sensibly. The better approach is to move toward an era of “managed politics,” in which the goal is to regulate, rather than exterminate extralegal influences on judicial decision-making, to the end of promoting the three objectives of judicial independence and accountability. In many ways, that era is already upon us, but acknowledging it more explicitly should better inform the legal establishment’s reform agenda in a range of contexts, explained below.

Legal Education: Developing an approach to managing judicial politics logically begins in law schools, where future lawyers, judges and (many) lawmakers are first exposed to the way judges think. Policy analysis—analyzing how judges decide difficult legal questions with reference to competing policy concerns—is already a fixture of legal education. No thoughtful law professor or student thinks that judges can or do decide close questions of law with exclusive recourse to legal texts, unaided by reference to legal policy. It is only a short jump from there to identifying the factors that can influence individual judges to choose one policy over another. Exposing law students to social science data detailing the legal and extralegal influences on judicial decision-making, as a smaller part of the policy-analysis training that law students receive every day, would be a modest but important reform.

Judicial Selection: The mainstream legal establishment has long opposed those who would “politicize” judicial selection and has long campaigned to “take the politics out” of the selection process by, for example, ending state judicial elections and limiting federal confirmation proceedings to an evaluation of nominee “qualifications.” More openly acknowledging the inherently quasi-legal, quasi-political character of judging, however, may lead the legal establishment to entertain the possibility that managing, rather than eliminating, judicial politics in the selection process—by acknowledging the inherently political nature of the selection process, embracing variations across jurisdictions tailored to meet the particularized needs of different states, and encouraging incremental reform—is not just the best it can do but the most it should do.

Oversight of judges and the judiciary: Court critics, animated by the view that judges are shameless policy-makers run amok, have proposed draconian court-curbing measures (such as impeachment, jurisdiction-stripping and budget-cuts) to hold judges accountable. The legal establishment, animated by the view that judges are incorruptible bastions of the rule of law, have opposed such measures as threats to judicial independence. When it comes to blunderbuss proposals such as these that have been cyclically proposed and rejected for generations, it should be possible, indeed easy, for the legal establishment to defend the judiciary against them without resorting to a one-dimensional conception of the judicial role. Without disputing that judges are subject to extralegal influences, ham-handed tactics aimed at rendering judges subservient to the legislature do not seek to ensure that judges are process-minded, justice-seeking guardians of law; rather, they seek to ensure that judges do what legislators tell them to do, to the detriment of those very same values.

Fixation on these incendiary, court-curbing proposals, however, tends to perpetuate the misconception that keeping politics (or politicians) away from the courts is and ought to be the legal establishment’s lodestar. The routine give and take between the branches has become obscured; that give and take typifies the normal working relationship between the branches in a host of contexts, where managing judicial politics has long been a familiar part of the process. Members of Congress voice their concerns over judicial performance in oversight hearings, in comments to the media, and in floor statements; they seek to influence judges and courts through the legislation they introduce. For their part, judges make their views known individually in judicial opinions and collectively as the judicial conference, which pushes back against legislation it opposes and lobbies for legislation it supports—all against the backdrop of cyclical budget negotiations.

Evaluating mainstream proposals for court governance and the independence-accountability arguments they provoke, with more explicit reference to the three-fold objectives that independence and accountability serve, should help to structure and moderate the legal establishment’s response to such proposals. Judicial disqualification reform offers a useful example. “Impartiality” has been a defining feature of the judicial role for centuries, and, at common law, the presumption of impartiality was irrebuttable: judges could not be disqualified for bias. In the twentieth century, scholars and policymakers began to challenge this formalist proposition, and, in the 1970s, federal and state laws were revised to require disqualification whenever a judge was biased or his “impartiality might reasonably be questioned.” While these changes would seem to reflect a concession by the legal establishment that judges are subject to extralegal influences—influences that need to be managed—many judges have been loath to embrace the new world order embodied in the reforms.

The divisions within the legal establishment over judicial disqualification are put in boldest relief when it comes to the reform of disqualification procedure. The norm in the federal courts and most states is that judges decide their own disqualification motions. Disqualification determinations are subject to review via appeal or mandamus, but such review is highly deferential, with the majority view being that a judge’s decision not to disqualify himself is reversible only upon a showing of abuse of discretion. These rules sit well with traditionalists, who adhere to the presumption of impartiality and its premise that judges can bracket out extralegal influences and apply the law; and sit badly with reformers who are skeptical of the proposition that judges can step back from themselves and accurately assess the extent of their own bias, real or perceived. The approach I have advocated here would call upon the legal establishment to rethink its traditional view. If we acknowledge a range of extralegal influences on judicial decision-making, and propose to manage those influences to the end of maximizing the rule of law, procedural fairness, and sound, pragmatic decision-making, then several conclusions follow naturally. First, the rule of law is initially better served if disqualification rules are interpreted and applied by someone other than the targeted judge who is predisposed to think himself qualified to sit, and subsequently better served if biased judges, who would not disqualify themselves, are thereby excluded. Second, due process is better served if the judge qua fox is not called upon to guard his own henhouse. Third, the perspective that comes from being apart from, rather than a part of, the problem one is seeking to solve in the context of deciding disqualification motions improves the prospects for pragmatic, justice-seeking decision-making.

In short, what I propose here is to update the ermine myth to embrace at its core a more realistic vision of the judicial role. The stories that the legal establishment tells of the judicial role will retain a mythical quality, insofar as they embellish or exaggerate the truth by downplaying the extent to which judges can and do abuse their independence to the detriment of the rule of law, due process, and sound pragmatic decision-making. But the essence of the revised myth—that independent judges seek to follow the law, adhere to due process, and bring their common sense to bear to the end of seeking just outcomes—retains the sizable kernel of truth needed to preserve public support for the myth and the continued independence of the courts. And, if one thinks of judicial accountability in terms of managing extrajudicial influences on judicial decision-making to reduce the abuses of judicial independence, it will enable that kernel of truth to grow.


Charles Gardner Geyh, Associate Dean of Research and John F. Kimberling Professor of Law, Indiana University Maurer School of Law.

This Editorial is based on the Article, Charles Gardner Geyh, Can the Rule of Law Survive Judicial Politics?, 97 CORNELL L. REV. __ (forthcoming 2012)

Copyright © 2011 Cornell Law Review.

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