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).
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• 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