Unelected Judges Research Articles

Priming ideology I: Why do presidential elections affect U.S. judges

Politicians’ behavioral changes as an election nears have typically been attributed to the incentive effects of an election. I document that behavioral changes can occur even for unelected judges, using data from 1925 to 2002 on U.S. appellate judges, who are appointed for life. Exploiting monthly campaign ads in judges’ states of residence, dissents increase with campaign advertisements in states where judges reside. Elections can explain 23 % of all dissents. I rule out a number of incentive-based explanations. Topic of dissents, replication in concurrences (disagreement about reasoning), and placebo checks using milestones of case development support a transient priming mechanism. If elite U.S. judges are in fact susceptible to priming via the partisan nature of electoral cycles, then highly trained individuals may be susceptible to other forms of priming regardless of their professional commitments to be unbiased.

All the Sovereign's Agents: The Constitutional Credentials of Administration

At a time when citizens must rely on administration to tackle the urgent threats of global warming, a pandemic, and destabilizing inequality, critics both left and right would tear it down. Libertarian opponents denounce agency discretion as obnoxious to the rule of law and its norms of generality and neutrality. They argue that regulatory agencies violate the separation of powers and defy the principle of limited government. But their favored solution, a strict application of the non-delegation doctrine, would create a new, undemocratic separation of powers problem: ascribing to unelected judges responsibility for economic and social regulation. On the other hand, conservatives with a more authoritarian inflection would rescue agencies from their constitutional exile by placing them under more direct executive control. Bootstrapping agencies to the president’s electoral credentials, their solution carries Schmittian implications. Administration fares little better in the hands of the left. They blame it for a variety of ailments: the reification of social differences and the juridification of human nature; regulatory capture; depoliticization of the economy and the subsidization of financial capitalism; and, ultimately, populist politics. This paper will put administration on firm constitutional footing. It argues that critiques of the administrative state rely upon mistaken notions of popular sovereignty and the rule of law. First, they posit the law as the “will” of an organ-body democratic sovereign that is transcribed (however ham-handedly) by elected officials. Yet, as recent theory shows, there is no exogenous democratic will to transcribe. Second, they posit that this law can be uncontroversially applied by neutral judges and administrators. For them, the rule of law protects political equality through the unwavering application of abstract, general legislation. Critical theorists show, however, that the application of abstract law to concrete cases may only exacerbate inequality. Legal realists demonstrate that law is underdeterminate; unelected judges and administrators will inevitably find themselves smuggling outside values into their decision-making. By treating administration as part of representative government, however, agencies can gain constitutional credentials. If democracy aspires not to universal consent and a formalist understanding of law, but instead to democratic autonomy (Urbinati & Warren, 2008), then administration can be legitimate. Indeed, agencies already serve as fora for representative politics as citizens organize around rulemaking. They also act as representatives themselves. By providing points of entry into policymaking, independent agencies help constitutional democracies ensure that power can respond effectively to popular demands while always remaining an empty place.

The Public’s Influence on the U.S. District Courts in Discrimination Cases

Do judges follow public opinion when they decide cases that present related issues over which the public has differing ideological views? This study addresses this question by comparing the U.S. District Court behavior in race and gender discrimination cases. By measuring public opinion on two issue areas that raise similar legal questions, I provide a better estimate of the effect of public opinion with fewer confounding variables relating to the agenda of the federal courts. Using a difference-in-differences approach, I show that district court judges are more likely to vote liberally in gender discrimination cases than in race discrimination cases when public opinion on gender becomes relatively more liberal than public opinion on race. This holds even when including a series of important covariates such as demographic information about the judges. This paper thus provides further support for a counterintuitive claim in the literature: unelected judges may nonetheless respond to public opinion.

Does Liberal Constitutionalism Need an Alternative?

This article argues for a fundamental re-thinking of the debate between political and legal constitutionalism regarding the permissibility of constitutional review. To this effect it proposes we jettison or qualify some key premises and assumptions of the two views that hamper theoretical progress. First, against liberal constitutionalists who view constitutional review as an essential feature of all legitimate constitutional orders the article claims that we must do away with the notion that constitutional review follows from the logic of constitutions. If it is necessarily permissible, it must be by virtue of the moral case that can be made in its favour; however, attempts to construct such a case invariably fall short; constitutional review is, at best, only contingently permissible. Second, against those who oppose constitutional review across the board the article maintains that it is not necessarily an affront to political equality to give unelected judges the power to veto primary legislation. To be sure, elected institutions must have a significant say in policy. Yet, their contribution must fit into a constitutional arrangement also shaped by other important political considerations, which sometimes compete with political equality. The article concludes that, rather than deliver a knockdown blow on their opponents, liberal and political constitutionalists would do well to focus their energies on how best to combine judicial and non-judicial guarantees of the constitution.

Insidious Regulatory Taxes

Courts have long held the utmost respect for tax laws, reflecting a recognition that the revenue-raising function of taxes allows legislators to distribute the burden of funding the government as they see fit. Unelected judges, the sentiment goes, should be hesitant to trifle with tax laws and upset those political decisions. However, taxes are not mere revenue-raising tools; they also are used to regulate behavior. Intentional regulatory effects might be expected to lessen the privileged state of taxes before the courts in order to bring the treatment of regulatory taxes in line with that of direct regulations, but this is not the case. Courts continue to defer to the institutional interests in raising revenue, even when regulatory taxes raise only nominal revenue. The problems with this approach are highlighted by state-level controlled substance taxes, which impose taxes on individuals for the possession and sale of illegal drugs without providing those individuals the protections available under criminal law, such as high burdens of proof for the government. These regulatory taxes are insidious vehicles for undermining those protections against harmful government actions, and the use of the taxes is incentivized by the judiciary’s current approach to taxes. Not only do insidious regulatory taxes stealthily sacrifice protections for individuals, they are less efficient than their direct regulation counterparts and thus unnecessarily burden society. Courts need a new framework to remove the incentive to use such insidious regulatory taxes, and this Article taps modern tax expenditure analysis to provide that framework—one that appropriately balances institutional and individual interests when taxes are challenged.

Freed Unto Liberty: A Call to Re-Treasure American Liberty

Americans cherished a particular kind of liberty that the Constitution was ratified to protect. This original liberty was moral in character, communal in nature, and consensual in reach. At the dawn of the twentieth century, however, nine unelected judges began loosening the meaning of the Constitution, crowning themselves as the “supreme law of the land,” and burying the American liberty treasure under a heap of extra-constitutional court opinions. But hope remains for honoring America’s original liberty once again. The same source that created America’s original liberty can help bring it back.

Judging Judicial Review in the American States

Does the use of judicial review by unelected judges harm public support for their decisions? Scholars have often answered this question in the affirmative. We examine the extent to which the use of judicial review reduces the ability of judges to achieve acceptance of their decisions, arguing that decisions made by elected judges may be more palatable to the public. Our experimental evidence demonstrates that the public is less prone to accept both decisions made by appointed judges and judicial decisions that strike down laws. However, the public is no more likely to accept the use of judicial review by an appointed court than an elected court. The results have implications both for institutional design in the American states and the microfoundations of judicial independence.

The Province of the Rule of Law (Finally) Determined

Under the general assumptions of democratic theory, legislatures have positive legitimacy to make law because of the power of the people who elected them. Throughout the world, however, unelected judges also make law. What, if anything, gives such judges positive legitimacy to make law? This paper demonstrates, through two superficially simple game-theoretic examples, that judges’ positive legitimacy is based on the power of people. Courts' legitimacy has the same basis as legislatures'. Since the French revolution, the ultimate arbiter in the social fight is the strongest faction, the majority. A group of people communicates its type to society at the ballot box. Based on the ballot count, society makes concessions to the terms dictated by the majority. Under what circumstances would an individual ever be able to dictate terms to society? This paper demonstrates that the court system allows a single individual to act collectively with other similarly situated individuals spread out through time. This paper argues that this group can communicate its type to society through legal reasoning. Courts are insulated from the political process because unelected judges are supposed to be beholden to a temporally disconnected group, rather than to contemporaneous constituencies.

Originalism as Fable (Reviewing Eric Segall, Originalism as Faith)

Eric Segall’s Originalism as Faith provides both a history of the originalist movement in constitutional interpretation and a critique of that movement from the perspective of legal realism. This Review Essay summarizes Segall’s main argument: as originalism has abandoned deference to the political branches, it has become indistinguishable from its nemesis, living constitutionalism. Emptied of substance, originalism becomes nothing more than an expression of faith. Segall makes his argument very convincingly, evidencing both his knowledge of originalism in all its variants and his mastery of constitutional doctrine. This Essay offers two ways in which Segall’s exemplary work might be supplemented. First, it teases out the various meanings that “faith” can have in this context, ranging from quasi-religious belief to myth to ideology to political credo. Second, it offers two alternative narratives as supplements to Segall’s legal realist critique. Originalists insist that their approach has “bite,” which they contend distinguishes it from unprincipled living constitutionalism. In the alternative, Jack Balkin reconciles originalism and living constitutionalism. Legal decision-makers, following his “living originalism,” may be legal realists, but their construction of the Constitution must be constrained by their duties of good faith and fidelity to the Constitution. Originalism with bite and living originalism provide theoretical responses to Segall’s challenges, but their positions must also accord with the reality of constitutional adjudication. Segall challenges originalists to reconcile their faith in unelected judges with a Constitution designed to provide governmental accountability through democratic processes. If they cannot do so, originalism is not a true account of our judicial processes but a fable designed to disguise a new version of legislation by the judiciary as the neutral application of legal rules.

Judicial Independence on Unelected State Supreme Courts

ABSTRACTThe state supreme court literature often overlooks the twelve states that use traditional appointment systems or fails to explore differences in their judicial designs. Eight states require justices to be reappointed at the end of a fixed term, while a different set of eight states currently use judicial commissions to limit the discretion of partisan elites to appoint judges. I develop a principal-agent theory of judicial independence to test how unelected judges under different institutional arrangements respond to elite preferences. An analysis of business cases from 1995–2010 indicates justices selected by judicial commissions are significantly less sensitive to elite ideology than justices nominated by partisan elites. The most responsive behavior occurs among justices subject to periodic reappointment who are chosen by partisan elites, while tenured judges chosen by judicial commissions behave independently of elite ideology. The data also provide evidence that state tort reforms significantly increase the probability of pro-business votes.

The Political Process, Equal Protection and Substantive Due Process

In its landmark decision in Carolene Products, the Supreme Court crafted a uniquely American solution to the counter-majoritarian dilemma present in any constitutional democracy: when unelected judges should substantively review policy choices made by elected legislators and executives. The political process theory underlying that decision is that a Court with a history of decisions based on judicial ideology should limit close review of government actions to three situations: (1) when the action contravenes a specific provision of the Bill of Rights, (2) when the action threatens to improperly limit the political process, or (3) with regard to the broadly worded Due Process and Equal Protection Clauses, when courts determine that the political process does not work normally. The Court has not faithfully implemented this approach over the years. However, neither justices nor commentators have developed a superior alternative approach. We believe that most Americans ought to prefer a return to Carolene Products, as superior (either philosophically or because of risk aversion) to leaving important constitutional precedents subject to the vagaries of highly partisan politics. Our approach builds upon insights of Justices Harlan Fiske Stone, Robert Jackson, and Thurgood Marshall. First, courts should consider challenges initially under the Equal Protection Clause. Second, the category of cases warranting heightened judicial scrutiny should be expanded to include claimants who can prove that they are excluded from Madisonian factional “wheeling and dealing” that characterizes ordinary politics. Third, substantive due process claims should remain available, but only where claimants can demonstrate that animus or prejudice precludes their ability to use the political process to redress their grievances.

Judicial Federalism and Representation

This paper evaluates how the power of courts in a system of dual federalism affects state-level representation. I develop a framework in which courts establish a federal in a given policy area, thus creating an asymmetry -- states in which the legislature has chosen a lower level are compelled to shift policy to the floor, whereas states in which legislatures or voters prefer levels above the floor are unaffected. I develop versions of the framework in which the status quo at the state level may lag behind changes in public opinion, and in which cross-state moral externalities exist. In doing so, I use the framework to recast the familiar counter-majoritarian difficulty -- the problem of unelected judges striking down legislation enacted by elected legislatures -- as an issue of federalism. To illustrate the framework, I present a quantitative analysis of the path to the legalization of same-sex marriage in all 50 states, using both original and existing data on public opinion, and state judicial decisions, and state-level policy.

Justice Breyer's Constitutional Jurisprudence: Active Liberty and Pragmatism

ABSTRACTThis analysis of Associate Justice Stephen Breyer's jurisprudence proceeds from his first book devoted to this subject, Active Liberty, a term he derives from Benjamin Constant and that Breyer defines as participatory democracy. Active Liberty and two subsequent books, as well as numerous off-bench writings, explain his jurisprudence of pragmatism, an approach he contrasts with originalism. This article addresses three general questions: Is Breyer's jurisprudence, founded on active liberty and pragmatism, fundamentally consistent with the design of the Constitution? Does his jurisprudence support his opinions in the constitutional decisions examined, a number of which are also treated in his books and articles? In a system that is designed to empower and to limit government, do his jurisprudence and judicial decisions constrain judges? This last question is especially important because of Breyer's thesis “that courts should take greater account of the Constitution's democratic nature when they interpret constitutional and statutory texts.” Breyer believes that his theory of active liberty ameliorates the democratic anomaly between a system “based on representation and accountability” that at the same time entrusts “final or near-final” authority to unelected judges who are insulated from public opinion.

ACCEPTABILITY OF JUDICIAL REVIEW IN DEMOCRACY WITHIN THE CONTEXT OF HUMAN RIGHTS (İnsan Hakları Bağlamında Demokraside Yargı Denetiminin Kabul Edilebilirliği)

Human rights globally become an inarguable virtue and it requires the conviction that all human beings are born free and equal in dignity. According to the current dominant paradigm, the protection of human rights is one of the most important obligations of the state. In both national and international level, courts are primarily equipped to protect human rights in any circumstances. On the other hand, democracy representing by the elected parliaments traditionally means decisions by the majority. These two important merits, democracy or parliaments and human rights or courts, interact with each other. Usually the relationship between them is based on the fact that they support each other. However, over the years it is observed that there can be conflicts between them. In this case, the absolute power of majority and the rights of individuals or minorities in democracy may come into collision with each other. At this point the controversial question whether there is a rational and practical reason to give decision-making power to unelected judges rather than to democratic majority or not come to light. This essay focuses on the acceptability of judicial review in democracy and the sufficiency of democratic perspective of human rights

Judicial Activism and Arbitrary Control: A Critical Analysis of Obergefell v Hodges

This article critically analyses the recent US Supreme Court decision in Obergefell v Hodges, the samesex marriage case. The court in Obergefell put a stop to the democratic process by removing an important issue from the realm of democratic deliberation. These unelected judges held that their nation’s federal constitution should ‘evolve’ in a way that is supported by neither the document’s language, nor its history or authority. In short, they have imposed their worldview on the people at the expense of federalism and the democratic process. This is why Justice Alito was so correct to state that such an exercise of raw judicial power ‘usurps the constitutional right of the people to decide whether to keep or alter the traditional understanding of marriage’, adding that it evinces ‘the deep and perhaps irremediable corruption of [the American] legal culture’s conception of constitutional interpretation’.

Justice for Hedgehogs

<i>Justice for Hedgehogs</i>

Less Deference, More Judging

Rhetoric of “judicial activism” pervades political conversation about judicial decisions on both sides of the aisle. Our courts have become a problem, but not because of activist, unelected judges legislating from the bench and undermining the democratic process. According to Clark M. Neily III in his new book Terms of Engagement, judicial activism is “overstated and overhyped”; in reality, our judges are doing not nearly enough to rein in overweening government. This review summarizes Neily's arguments and adds some historical context to further strengthen Neily's argument for less deference and more judging.

The Idea of Human Rights

This paper considers what the notion or idea of 'human rights' best covers or encompasses. It gives some history and takes a position on this debate. It is a short paper with a clear point of view. My brief for this piece was to write on human rights. That left two main options. I could undertake a fairly specific black letter critique of bills of rights. I am a strong opponent of these instruments, in either their entrenched, constitutionalised form or in their statutory, enacted form. The former you see in Canada and the United States of America; the latter you see in New Zealand, the United Kingdom and in Victoria. In my view both forms are pernicious; both forms undermine democratic decision-making; both forms unduly enhance the point-of-application power of unelected judges on a host of issues that are in effect moral and political ones – ones over which judges (committees of ex-lawyers as Jeremy Waldron continually reminds us) have no greater expertise, no superior moral perspicacity, no better pipeline to God than the rest of us non-judges, otherwise known as voters. I could go through the problems with bills of rights in some detail if I were to choose this option. I have written fairly extensively along these lines.

It's the People's Constitution, Stupid: Two Liberals Pay Tribute to Antonin Scalia's Legacy

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on ensuring political and democratic equality. The Court’s jurisprudence should promote equal participation in the democratic process — and equal protection of the laws — because it enhances personal autonomy and provides citizens — particularly disenfranchised groups — a meaningful voice in self-governance. The authors present sixteen excerpts from Justice Scalia’s famous dissents and concurrences. Justice Scalia’s words embrace the democratic process — not the so-called living constitution — as a source for change. They argue that, within the Constitution’s written constraints, citizens in each state have the freedom to make laws and define unenumerated rights from the bottom up. Ironically, though, many seem to bristle at the idea of the people, not courts, defining “one’s own concept of existence . . . and the mystery of human life.” Why?

The idea of human rights

My brief for this piece was to write on human rights. That left two main options. I could undertake a fairly specific black letter critique of bills of rights. I am a strong opponent of these instruments, in either their entrenched, constitutionalised form orin their statutory, enacted form. The former you see in Canada and the United States of America; the latter you see in New Zealand, the United Kingdom and in Victoria. In my view both forms are pernicious; both forms undermine democratic decision-making; both forms unduly enhance the point-of-application power of unelected judges on a host of issues that are in effect moral and political onesnones over which judges (committees of ex-lawyers as Jeremy Waldron continually reminds us) have no greater expertise, no superior moral perspicacity, no better pipeline to God than the rest of us non-judges, otherwise known as voters. I could go through the problems with bills of rights in some detail if I were to choose this option. I have written fairly extensively along these lines.