lawless courts & revisionist history

[Howard Gillman]

At 10:19 PM 12/23/2000 -0500, Randy Barnett wrote:
>Of course, it may in fact be true that a judge or justice acts as she does
>solely for partisan reasons, because she was paid off, or because a Justice
>is personal friends with a President.  I simply require evidence before I
>reach that conclusion.  Strong disagreement with the outcome or reasoning of
>a particular case, especially an unprecedented one decided under intense
>time pressures, is not adequate evidence of such motives as far as I am
>concerned.

Randy's comments were again helpful, in particular on the issue of how lawyers as legal advocates are trained to be respectful to courts.  Obviously, political scientists suffer no such disability.

I also agree that there's "political" and there's "political."  All judicial decision-making is political in the sense that a judge's voting behavior and "philosophy" (at least at the level of the Supreme Court) almost always tracks conventional political ideology, and no "methodology" of interpretation (such as originalism) filters out this influence (except on the margins).  This observation raises no question about "good faith" interpretation; it just means that good faith is never enough as an explanation of decision-making.

But we also know that justices act "politically" in more instrumental terms, in the sense that they set aside their best understanding of law after making political calculations.  A lot of this is a matter of familiar intra-court bargaining; we also see it when the justices think about how other institutions (or the public) will respond to a decision.  This behavior is extensively covered in the political science literature on "strategic" behavior on the Court (see Murphy, Elements of Judicial Strategy [1964], Epstein and Knight, The Choices Justices Make [1998], Maltzman et al, Crafting Law on the Supreme Court [2000], plus a bunch of rat choice stuff; see also Clayton and Gillman, Supreme Court Decision-Making [1999].)

What perhaps is different about Bush v. Gore is the hypothesis that the justices were driven by a different sort of political motivation -- not broad ideological or policy preferences (routine), or strategic calculations (less frequent but common enough), but result-oriented calculations to promote the political fortunes of a favored candidate.

Unlike Randy, I see no reason to assume up front that the justices are incapable of such behavior (quite the contrary).  But I agree with Randy that we need to be very self-conscious about how we test this hypothesis (pardon the expression).

Short of an admission by a justice or a law clerk, or the release of some extraordinary document (phone records showing contacts between Scalia's chambers and Austin), what would count as evidence?  I would think that a close reading of the opinion is relevant, if not determinative (just as the ability of smart law professors to write better opinions in favor of the result is absolutely not evidence that legal concerns motivated the justices).  O'Connor's outburst on election night?  The ideological divide?

If we were really interested in the issue of motivation (good faith versus low politics), is there a way to investigate this, or can we simply expect the battle of the True Believers?

Howard Gillman
USC Political Science