The Many Meanings of Politics in Judicial Decision Making

This essay seeks to untangle the many possible meanings of politics in descriptions of judicial behavior. Part I sets out ten possible conceptions of the term, briefly discussing some examples and their empirical foundations. My goal is mostly descriptive (rather than normative), though it is apparent that some conceptions are more useful than others. In all events, claims about the political influences on judicial behavior must be specific about the phenomena they seek to describe. For given the many possible meanings of politics, accounts that lack such specificity are largely vacuous. Part II builds on this discussion to make two modest interpretive points. First, and rather obviously, embedded in any evaluation of the impact of politics on judicial behavior is a particular understanding of political influence, and one that may be contestable. Hence, in assessing what various studies of judicial behavior actually demonstrate, we must be attentive to the meaning of politics they adopt, as well as how they operationalize that meaning. Second, surveying the various conceptions of politics makes clear that the common view of law and politics as distinct, competing influences on judicial behavior is largely misconceived. As determinants of judicial decisions, law and politics are in many respects inextricably intertwined. This is especially clear once we distinguish a judge\u27s conscious intentions from the objective patterns observable in her decisions. Subjectively, a judge might sincerely pursue her best understandings of the law-acting as an umpire calling balls and strikes, so to speak-and this earnest pursuit will shape the choices she makes. At the same time, objective empirical analysis is apt to reveal the impact of political forces on the judge\u27s behavior-influences outside her cognition, unrelated to legal doctrine, or external to the judiciary. In short, the well-worn, law-or-politics dichotomy is highly misleading, if not simply wrong. Sorting through the various conceptions of politics as they apply to American courts nicely illustrates how judicial behavior is both legal and political-simultaneously, constantly, and thoroughly