Are All Judges Politicians? Judicial Independence and Behaviour

This essay will defend the claim that “all judges are
politicians”. For the purposes of this essay only judges in democratic states
will be considered. This is because high courts in authoritarian regimes tend
to be silent or impotent. Adherence to legal rules and procedures is second to
achieving desired outcomes in totalitarian systems.  

Law is inherently political. The law is interpreted,
and like all interpretations, it is naturally influenced by political
loyalties, ideologies and policy preferences. Courts can make policy through
norm enforcement. Norms are political because various positions on norms can be
help and which one is enforced will have political foundations and political
repercussions. Courts are political institutions. Courts are established, run
and funded by states. Recently we have seen a growth in the reliance on courts
to deal with some of the most fundamental political dilemmas.  In this essay I will discuss understandings
of judicial behaviour, judicial independence and judicialization to illustrate
how and why judges are politicians.

Judicial independence is important to consider when we study whether judges are politicians. Judges need to be independent from the other branches of the State so that they can adjudicate without fear or favour.  There is often no “fundamental difference between the position of judges and the position of policymaking officials” (Dimino p. 357).  

The close relationship between judges’ preferences and
the preferences of those in government may stem from different sources. Judges
may strategically avoid dissenting with powerful actors early on to enhance
their authority in time. This would lead them to coordinate their judgements
with the goals of those in power in the short run (Vanberg, 2015). This is particularly
relevant when analysing emerging democracies. In emerging democracies courts do
not have the same level of legitimacy or independence as those in developed
democracies. In practice this means that elected officials do not hesitate to
undermine and countermand court decisions. The Tatarstan Case 1992 is an
example of this (Epstein et al., 2001). In this example judges struck down a
question for a referendum which they deemed unconstitutional. Despite
Parliamentary support for the judgement the Tatarstan government ignored it and
held the referendum. The decision was rendered meaningless. This demonstrates
that newly established constitutional courts are forced to adhere to the views
of the governing majority as they work to build their authority. This causes
judges to be politicians whether they know it or not because they are simply
acting as a means of extending the government’s agenda.  

This does not occur in the same way in developed
democracies. In developed democracies courts may make decisions that challenge
the government. For example, in the UK case Council
for Civil Service Unions v. Government Central Communication Headquarters the
judicial review resulted in a judgement relating to the Royal Prerogative which
went against the wishes of the government (Sunkin, 1995).  However, despite the scope for judges’
dissent, according to Epstein et al. (2001), in every democracy constitutional
courts must be alert to the preferences of external actors if they wish to
advance their own goals because judges rely on the governing majorities to give
weight to their decisions. Consequently, judges benefit from appeasing both the
public and the government.

The appeasing of elected officials is often not a
challenge for judges. Judges’ educational, cultural and social backgrounds are
closest to those of top state bureaucrats and government officials (Hirschl,
2008). Furthermore, in Ireland and many other states the government appoints
judges to courts. Controversy can ensue from such practice because nominations
become partisan battles. This can be seen when in the 1970s Thomas O’Higgins
was appointed as a judge of the High court and the as Chief Justice of the
Supreme Court. As a former Fine Gael minister and two-time Presidential candidate,
he was a highly politicised figure (Ní Mhuirthile, 2016). The lack of
independent selection procedures creates a political culture within courts and
judges in turn become politicians. Yet, even having been politically appointed
judges must gain the approval of the public and the government. To do this, judges
must be tactical in their decision making.

To understand how judges make their decisions is
crucial to understanding them as politicians. Ruth Bader Ginsburg claims that
“legislative and executive officials act on behalf of the voters who placed
them in office; judges represent the law” (Siefert
v. Alexander (2010) …).  This
contrary to the notion that judges act politically to win the approval of the
government and the public which can be examined with respect to both
attitudinal and strategic approaches to judicial decisions.

The attitudinal approach states that judges’ decisions
are based solely on their own ideological preferences. This approach is
justified by the fact that judges are not electorally accountable and lack
ambition for higher political office (Segal and Cover, 1989). The strategic
approach describes judges as economic actors who are forward-looking and have
stable policy preferences. When making judgements they duly consider the
reactions of the legislative, the executive and the public.

In a study of Supreme Court decisions, it was found
that judges anticipate congressional action and act in accordance to it. The
study also shows that judges’ ideologies do matter and that when the court is
constrained the judges act strategically (Bergara et al., 2003). This study
suggests that it is a combination of both approaches that produce judgements. This
contradicts Justice Ginsburg’s claim that judges’ decisions are rooted in the law
and suggests that judges are politically motivated in their actions. Judges
make decisions and hence make the law based on their vision of what the law
should be in conjunction with their understanding of what the public think the
law should be. Their decisions are not rooted in objective, dispassionate
analysis of the rules and facts. The way judges make decisions is further proof
that they are politicians. The judgements are politically guided and have real
political repercussions; the making of the law. Accordingly, judges are
politicians.

The political power of the Supreme Court is clear when
we consider the time, effort and resources the President expends on the
nomination (Bergara et al., 2003). In France and Germany the making of public
policy and the development of constitutional law are frequently
interchangeable. In Israel the governments are preoccupied with securing and
preserving their parliamentary coalitions. In this case the civil judiciary is
the only body able to provide “rational objective policy-makers” (Edelman,
1995, p.409). The power that courts hold is politically decisive worldwide.
This judicial power is also a political phenomenon. Politicians benefit from
the existence of courts and from the judicialization of politics.

These benefits for politicians are immense. The court
can be used effectively by opposition to oppose the majorities
initiatives.  Courts improve the
international reputation and legitimacy of regimes (Hirschl, 2008). Courts can
allow politicians to avoid political responsibility for difficult decisions. Courts
let them pursue policy goals that could not be publicly advocated for. The
courts can even allow the government to strike down implemented policy if it
fails.  It is the resolution of moral
difficulties and contentious political questions the government wishes to avoid
that has transformed high courts into major political decision-making bodies
(Hirschl, 2008). One can see this tactic in practice is the behaviour of
American state legislators towards abortion policy.  Legislators are willing and able to leave
this inflammatory issue to the courts as the political costs of their own
action has been estimated to be too high (Tate, 1995). This is because judges
are willing to make judgements despite the political fallout that may incur.
This means that the court is essentially a third branch of the legislature. Therefore,
judges are politicians.

Judges are also striving to please the public. It is
for this reason that there is another perception of the role of courts. This
alternative understanding put forward by Vanberg (2015). The view is that
courts guard the rights of citizens and act as a check on the power of the
government. Following the fall of the Communist regime in Bulgaria, a
constitutional court was created to curb the powers of majorities in the
legislature. RHS Crossman supports this opinion stating, “the traditional
function” of courts is to “defend individuals rights against encroachment”
(Vallinder, 1995, p. 20). This is connected to the politics of rights argument
Tate (1995) puts forward. Tate makes the case that the significance of the role
judges play in policymaking is increased in a system where there is a “formal
acceptance of the principle that individuals or minorities have rights that can
be enforced against the will of putative majorities” (Tate, 1995, p.30). This
politics of rights can be manipulated by groups to further their own interests
through the courts and thus the politics of rights become the politics of
interests. This is undeniably at odds with the view that courts simply
represent the law as the law itself is then political. Under this politics of
interests understanding there is undeniable incentives to nominate and appoint
compatible judges. With such an incentive present it is natural that judges are
strategically appointed strategically politically and act politically
strategically themselves, thus making them politicians.

Judicialization is when the “province” of judges and
courts grows at the expense of politicians. This process is instrumental in
judges being and becoming politicians. Judicial power is expanding, and it is
shaping politics (Villander and Tate, 1995). Rather than simply being ‘negative
legislators’ constitutional courts possess political power. The courts may restructure
policy-making environments. They may encourage certain legislation while
disregarding other solutions. Judges have the influence for their suggestions
to be written directly into legislation (Stone, 1995). This is particularly the
case in European style systems. In a sequence where the court acts first and
the government last judges may constrain the legislative but never vice versa
(Epstein et al., 2001). This can be seen through the increasing prevalence of
autolimitation. In Germany members of Parliament give legal arguments too much
consideration when they are legislating (Landfried, 1995). This increases the
scope and weight of constitutional court judgements.

Judicialization is empirically verifiable. Hence, we
can further show judges behaving as politicians. The influence of courts can be
analysed by tracking how legislation is influenced because of constitutional
argument (Stone, 1995). Judicial review is politically constructed, and elected
officials have political reasons for empowering courts. The scope of judges’
influence has extended. Very few policy areas are now insulated from judicial
intervention. Aharon Barak asserts that “nothing falls beyond the purview of
judicial review; the world is filled with law; anything and everything is
justiciable” (Hirschl, 2008, p.95).  Judicialization
leading to judges acting as politicians can be seen worldwide. In Venezuela;
where ascertaining the validity of two and a half million petition signatures
pertaining to a referendum on whether Chavez should be recalled was under the
charge of the High Court. Bangladesh, Algeria Belgium, Israel, Spain and Turkey
have all seen decisions from courts banning political parties from
participating in national elections. In South Korea in 2004 the court
reinstated the president after the legislature had impeached him. (Hirschl,
2008) These examples show how judges through their respective courts play a
huge role in political systems. They are politicians. Why the judges are making
the decisions is open for discussion but the fact that the decisions are
political is self-evident and from that stems the fact that judges are
politicians.

Ultimately, judges do not apply the law in an
objective, mechanical way. Judges are shaping politics and policy globally.
They are policymaking politicians who operate under different constraints and
through different institutions than other elected officials but nonetheless
they are politicians. As Harold Spaeth said, “the local judge who
invariably sends drunken drivers to jail, the judge… who throws the book only
at youthful drug offenders and the judge who… makes life miserable for errant
spouses who fall behind in their child support and alimony payments – all are
making policy”
(Dinimo, 2003, p.364).

Bibliography

• Segal, J. A., Timpone, R. J., & Howard, R. M. (2000). Buyer beware? Presidential success through Supreme Court appointments. Political Research Quarterly, 53(3), 557-573. http://journals.sagepub.com/doi/pdf/10.1177/106591290005300306
• Vanberg, Georg. 2015. Constitutional courts in comparative perspective: A theoretical assessment.’ Annual Review of Political Science 18: 167-85. Recommended readings
• Segal, Jeffrey A., and Albert D. Cover. 1989. ‘Ideological values and the votes of US Supreme Court justices.’ The American Political Science Review 83(2): 557-65.
• Vanberg, Georg. 2005. The Politics of Constitutional Review in Germany. Cambridge: Cambridge University Press: Chapter 1 and Chapter 3. Applied Readings
• More Perfect Still: “Kittens Kick The Giggly Blue Robot All Summer” https://www.npr.org/podcasts/481105292/more-perfect?t=1536569390186
• RTE News (24th May 2015).‘Ireland says Yes to same-sex marriage.’ http://www.rte.ie/news/vote2015/2015/0523/703205-referendum-byelection/
•  ‘The Arc of justice’. The Economist. (2018, Jul 14).
• Boudreaux D, Pritchard AC. 1994. Reassessing the role of the independent judiciary in enforcing interest group bargains. Constitutional Polit. Econ. 5:1–21
• Bergara M, Richman B, Spiller PT. 2003. Modeling Supreme Court strategic decision making: the congressional constraint. Legis. Stud. Q. 281:247–80
• Michael R. Dimino, Pay No Attention to That Man behind the Robe: Judicial Elections, the First Amendment, and Judges as Politicians, 21 Yale L. & Pol’y Rev. 301 (2003)
• Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court? Author(s): James L. Gibson and Gregory A. Caldeira Source: Law & Society Review, Vol. 45, No. 1 (MARCH 2011), pp. 195-219
•  The Judicialization of Mega-Politics and the Rise of Political Courts Ran Hirschl Annu. Rev. Polit. Sci. 2008. 11:93–118
• Judicial Review in New Democracies – Constitutional Courts in Asian Cases Tom Ginsburg (Introduction)
• The Global Expansion of Judicial Power Edited by C. Neal Tate & Torbjorn Vallinder
•  The role of constitutional courts in the establishment and … Epstein, Lee;Shvetsova, Olga;Knight, Jack Law & Society Review; 2001; 35, 1; Social Science Premium Collection