William P. Marshall, University of North Carolina, Chapel Hill, School of Law, has published Judicial Takings, Judicial Speech, and Doctrinal Acceptance of the Model of the Judge as Political Actor in volume 6 of the Duke Journal of Constitutional Law & Public Policy (2011). Here is the abstract.
The criticism that a judge has injected her policy preferences into her judicial decision making is just that - a criticism. But for years, academics from a variety of disciplines have set forth a rich literature asserting that judges’ policy preferences, rather than adhesion to neutral legal principles, determine legal results in close cases. Much of this writing, referred to here as Judicial Political Realism, has been based upon empirical studies which show that a judge’s ideology (usually determined by referencing the political party of the judge’s appointing president) significantly explains patterns of judicial votes.Download the article from SSRN at the link.
Not surprisingly, the Judicial Political Realist literature generally has not been warmly received by the practicing bar, judges, and (most) legal academics because most lawyers, judges, and legal academics like to believe that legal rules, legal doctrine and legal reasoning matter even in close cases. Against this background, however, it is interesting to note two recent United States Supreme Court cases in which the Court, or at least some of its Justices, has implicitly appeared to allow the notion that judges are political actors to infiltrate constitutional doctrine. In the first, Republican Party of Minnesota v. White, a Court majority ruled that a state could not prohibit candidates for judicial office from announcing their views on issues that might come before them. For First Amendment purposes, judicial candidates were to be treated no differently than legislative candidates; the voters were entitled to know the candidates’ views on the issues and they would be expected to support or oppose a candidate on that basis. As such, the implicit suggestion in White mirrors the judges-as-political-actors critique-- judges, like legislators, bring political agendas to their service.
In the second, Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, four Justices, in an opinion authored by Justice Scalia, again appeared to strongly embrace the Judicial Political Realist claim. In Stop the Beach, the four Justices argued that the Court should recognize a doctrine of ‘judicial takings,’ meaning that a change in property rights resulting from a judicial opinion should entitle the aggrieved property owner to the same sort of compensation that a property owner would receive if the change to her rights occurred as a result of legislative enactment. To these Justices, there was no constitutional difference between judicial and legislative action for purposes of the Takings Clause. As such, even more graphically than White, the judicial takings theory advanced in Stop the Beach sets forth the vision of judges as political actors. Judicial decisions are not to be treated as interpretations of law but as exercises of raw political power akin to legislative enactment.
The Court in neither White nor Stop the Beach, of course, stopped to discuss the vision of judges as political actors inherent in their opinions. This paper does so. After first canvassing the specifics of both the White and Stop the Beach opinions, it analyzes what both cases say about the nature of judging and judicial institutions.