The Party Variable in Judges' Voting: Conceptual Notes and a Case Study

Abstract

Since the writings of the judicial realists in the 1920's and 1930's almost all social scientists have accepted the concept that the judicial process is basically political. One line of reasoning points out that judges inevitably are policy makers because of their functions, such as constitutional and statutory interpretation. Politics is conflict among interests or values or demands, and any activity, including judicial decisions, which advantages one interest as opposed to others is political activity. Since judges decide cases involving interest conflicts, theirs is “interest activity not as a matter of choice but of function.” Robert H. Jackson made the point cogently when he argued that the “Supreme Court has, from the very nature of its functions, been deep in power politics …” Of the power of judicial review, he said, “The ultimate function of the Supreme Court is nothing less than the arbitration between fundamental and ever-present rival forces or trends in our organized society.” Although these remarks were addressed to the Supreme Court, they are true to a substantial degree of judicial power throughout the American system. Many of the conflicts adjudicated by the judiciary advance some interests or values and disadvantage others.At the same time that the judicial function has been recognized as political in its consequences, the process of judicial decision making has come to be viewed as involving wide opportunities for discretion by the judges. The mechanical theory of judging, enunciated most clearly by the late Justice Owen Roberts, is now generally in disrepute, and realists prefer to cite Charles Evans Hughes who stated “We are under the Constitution, but the Constitution is what the judges say it is.”