Judges, Ideology, and Policy in the Administrative State: Lessons From a Decade of Hard Look Remands of EPA Rules

Abstract

It is often said that the legitimacy of the administrative state depends upon the availability of judicial review of agency action. The legitimacy of judicial review depends, however, upon the proposition that reviewing judges honestly seek to apply neutral legal principles, rather than pursuing their own personal ideological agendas. Charges that judicial ideology determines outcomes are not uncommon. In recent exchange, Judge Harry Edwards severely criticized Professor Richard Revesz? conclusion that judges on the District of Columbia Circuit engage in a strategically ideological approach to in deciding cases involving environmental regulation. This article takes new empirical approach to examining the effects of political ideology on judicial decisions. Rather than characterizing an entire decision as win or loss for industrial or environmental interests, this article considers the outcome for each issue decided in each case. The result should be far more accurate picture of the role of ideology in judicial decisions. Examining all remands of EPA rules by the D.C. Circuit from July 1, 1985 through June 30, 1995, the article concludes generally that the data do not support charges of significant ideological voting in contests between industry and environmentalist interests. On the other hand, the article concludes that Democratically appointed judges tended to favor the agency, while Republican appointees tended to favor private actors. On the whole, the article concludes that the data provide a picture of careful judging, without the strong ideological influences that have been predicted in other studies.