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Judges as principled politicians

- February 20, 2014

Justices Breyer and Scalia (Alex Wong/Getty Images)
Linda Greenhouse has a wonderful column in today’s New York Times, which highlights Robert Dahl‘s 1957 article “The Supreme Court as a National Policy Maker.” She quotes its lucid opening paragraph:

To consider the Supreme Court of the United States strictly as a legal institution is to underestimate its significance in the American political system. For it is also a political institution, an institution, that is to say, for arriving at decisions on controversial questions of national policy. As a political institution, the court is highly unusual, not least because Americans are not quite willing to accept the fact that it is a political institution and not quite capable of denying it; so that frequently we take both positions at once. This is confusing to foreigners, amusing to logicians, and rewarding to ordinary Americans who thus manage to retain the best of both worlds.

Dahl’s central thesis is that the Supreme Court is a political actor that is responsive to other political branches in the American system. Greenhouse writes that this thesis:

 [..] seems so intuitively obvious that it’s remarkable how long it took for the legal academy to accept or even acknowledge it.

Today there are few serious observers who deny that political factors play a role in shaping how judges (and the Court) make their decisions. Only judges continue to uphold the image of the judge who merely implements the law. “My job is to call balls and strikes,” chief justice nominee John G. Roberts Jr. testified during his Senate confirmation hearings. Judges clearly do not want to be seen as “politicians in robes.” They believe that their legitimacy depends on the ability of others to distinguish what they do from what other political actors do. 
This gets us back to Dahl. Americans are not quite willing to accept that the Supreme Court is “just another political institution” but they are also not quite able to deny that it is political. Indeed how could anyone who is paying attention hold such a naive view? Yet, public support for the Supreme Court continues to be much higher than for other political institutions.
 James Gibson and Gregory Caldeira shed some light on why that might be so in a recent article in Law & Society ReviewGibson and Caldeira find that in contrast to Congress, where the more you know the less you like the institution, more knowledgeable individuals are more supportive of the Supreme Court. This is not because Americans are duped into believing that the Court just implements the law. Most Americans believe that judges exercise discretion and that personal and (to a lesser extent) partisan beliefs play a role in how judges exercise that discretion. Indeed, more knowledgeable Americans attribute a greater role for politics than Americans who know less about the court. Yet most Americans (50.1 percent) also reject the notion that judges are “just politicians in robes.”
How can we reconcile these findings? A partial answer is that most of us believe that the law constrains judges more than it does other political actors. Yet, Gibson and Caldeira also find evidence that people believe that, in contrast to politicians, judges are at least sincere when they apply their personal beliefs:

Judges are certainly politicians. What distinguishes judges in the minds of the American people is that judges exercise discretion in a principled fashion. Were other politicians to act more like judges, perhaps the legitimacy of all American political institutions would be elevated.

In other words, few would question that the personal beliefs of justices Antonin Scalia or Stephen G. Breyer shape the way they exercise discretion, but we also do not question the sincerity of those beliefs. Politicians are not generally awarded this luxury. Perhaps this allows Americans, in Dahl’s words, “to retain the best of both worlds.”