President Donald Trump’s nomination of Brett Kavanaugh to the US Supreme Court has unsurprisingly been greeted by delight from the Right and despair from the Left. The chance to remake the image of the Supreme Court for decades to come with the nomination of a relatively young and reliably conservative justice is dreaded by some and celebrated by others. The significance of Kavanaugh’s – virtually guaranteed – confirmation to the Supreme Court is compounded by the fact that he would replace justice Anthony Kennedy. Kennedy has long been the decisive “swing vote,” who sometimes siding with the four conservative justices and sometimes with the four liberal justices. Being the deciding vote on many cases, Justice Kennedy played an outsized role in recent years.
Presumably, Kavanaugh will shift the bench’s balance to the right. Such a realignment is seen as having substantial impact on a number of controversial issues that may come before the Court, which Kavanaugh has well documented conservative positions on. For instance, he is widely seen as being against access to legal abortions, threatening to reverse the recognition of same-sex marriageand undermining legal protections of voting rights. As Leah Litman writes, Kavanaugh on the bench puts past and future progressive achievements are in peril: “For the next several decades, the federal courts could be available to strike down policies that progressives obtain in the halls of Congress, the presidency or the states.”
But, is Liberals’ despair (or vice versa Conservatives’ delight) about Kavanaugh’s nomination to a seat on the Supreme Court justified? What, if anything, does social science research have to say about judicial decision-making and the importance of individual justices? According to political science research, is there reason to be afraid of Supreme Court Justice Brett Kavanaugh? The study of Courts has highlighted, at least, three different models of judicial behaviour. According to the legalist model, there are clear constrains and limits set by the law itself. The attitudinal model states that personal policy preferences and ideological positions clearly come through in Court rulings. The strategic model considers that both external and internal factors constrain and enable judicial decision-making.
The Legalist Model
The legalist model conceives of judges as different from other decision-makers in a polity and immune to influences other than “the law.” Often invoked by judges themselves and prevalent in law schools, it highlights the importance of internal constraints of law itself, such as legal principles, precedents and procedures (Bailey & Maltzman, 2011). Under this “robes on” approach, decisions are derived from the constitution, precedents and statues, which are mechanically applied to the facts.
“[T]he decisions of the Court are substantially influenced by the facts of the case in light of the plain meaning of statutes and the Constitution, the intent of the Framers, and/or precedent” (Segal & Spaeth, 2002: 48).
The legalist model is invoked by Conservative defenders of Kavanaugh and even some liberal law professors. For instance, making the conservative case that Liberals freaking out about Kavanaugh on the bench are badly mistaken, John Lott writes: Kavanaugh is dedicated to judging cases based on the evidence and dedicated to following the Constitution as it is written. He is a firm opponent of legislating from the bench to support his ideological views.” Considering his legal experience, education and expertise, Yale Law School Professor Akhil Reed Amar, calls Kavanaugh a “superb nominee” with few if any to rival his judicial credentials and record. Kavanaugh himself has likened the role of a judge to that of an “umpire” who has to “check any prior political allegiances at the door” and “follow the law and not to make or re-make the law.” In his speech accepting the nomination, he said:
“A judge must be independent and must interpret the law, not make the law. A judge must interpret statutes as written, and a judge must interpret the Constitution as written, informed by history and tradition and precedent.”
The Attitudinal Model
The attitudinal model, which has long dominated political science, considers claims of impartiality and judges being above politics to be hogwash. Judges cast their votes based on their attitudes, values and personal policy preferences (Segal & Spaeth, 1993; 2002; Segal, 2017). They can rule according to their ideological preferences because of their uniquely shielded institutional position and the sufficiently ambiguity of legal texts, which accords them both independence and discretion in their decision making. This “robes off” approach sees judicial behaviour as largely unconstrained.
“The Supreme Court decides disputes in light of the facts of the case vis-a-vis the ideological attitudes and values of the justices. Simply put, Renhquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he was extremely liberal” (Segal & Spaeth, 2002: 86).
The attitudinal model explains the despair on the Left and delight on the Right. Nominated by a conservative President, vetted by a conservative administration and supported by conservative groups such as the Federalist Society, Kavanaugh is perceived as a reliable Conservative, who will vote according to his ideological and political preferences. Considered a “conservative stalwart” and “powerhouse,” Kavanaugh is someone who has “embraced the philosophy of the conservative legal movement.” His judicial role models are supposed to be noted conservative jurists such as Justices Rehnquist and Scalia. Based on analysis of his past judicial behaviour and rulings, Elliot Ash and Daniel Chen find him to be “radically conservative.” In sum, Kavanaugh, or, as Paul Waldman puts it, “anyone appointed by a Republican president will be a reliable justice who will not stray from conservative ideology.”
The Strategic Model
The strategic model cautions against reducing judges’ decisions to their ideological positions. The model posits that judges behave strategically in light of the preferences of other actors, expectations about the action of others and their institutional context (Epstein & Knight, 1998; Maltzman, Spriggs, & Wahlbeck, 1999; Epstein & Knight, 2000). Justices make “interdependent” decisions that take into account other judges on the bench (internal constraints) and political and social actors outside the courtroom (external constraints). Extended iterations of the strategic model consider judges as maximizing, inter alia, prestige, recognition or leisure not just their political preferences (Epstein, Landes and Posner, 2013). Closely resembling rational choice variants of new institutionalism (Hall & Taylor, 1996), both the position of the judge within the Court and of the Court in the wider polity are “part of the game” (Spiller & Gely, 2008).
“Justices may be primarily seekers of legal policy, but they are not unsophisticated characters who make choices based merely on their own political preferences. Instead, justices are strategic actors who realize that their ability to achieve their goals depends on a consideration of the preferences of others, of the choices they expect others to make, and of the institutional context in which they act” (Epstein & Knight, 1998: xiii).
Among the external factors that have been found to influence Supreme Court decision-making is public opinion (Mishler & Sheehan, 1993; McGuire & Stimson, 2004; Giles, Blackstone, & Vining, 2008; Epstein & Martin, 2010). There is a widespread view in the literature that Supreme Court justices strategically follow public opinion (Ura & Merrill, 2017). This does not mean that justices necessarily or always follow public opinion, yet, on average justices have been found to modify their behaviour to protect institutional legitimacy and policy effectiveness confronted with public opinion dead-set against their preferred outcome.
“A Court that cares about its perceived legitimacy must rationally anticipate whether its preferred outcomes will be respected and faithfully followed by relevant publics. Consequently, a Court that strays too far from the broad boundaries imposed by public mood risks having its decisions rejected. Naturally, in individual cases, the justices can and do buck the trends of public sentiment. In the aggregate, however, popular opinion should still shape the broad contours of judicial policymaking” (McGuire & Stimson, 2004:1019)
In light of such evidence, the idea that Roe v. Wade will automatically be overturned with Kavanaugh on the bench, as Senator Elisabeth Warren warns, might be a bit of a stretch. Roe v. Wade is more popular today then ever before and going directly for overturning Roe v. Wade might mobilize pro-choice leaning voters. The more plausible alternative is some kind of indirect and incremental decision, which would weaken but not outright kill legal access to abortion. Furthermore, increasing restrictions to abortions have been witnessed for years in different jurisdictions as result of the political backlash and growing influence of the pro-life movement, despite Roe v. Wade being nominally intact.
We need to be aware of the assumptions that underlie our reactions to Brett Kavanaugh’s nomination to the Supreme Court. What model of judicial decision-making we subscribe to makes all the difference. The significance of Kavanaugh joining the bench is premised on whether one believes that justices are primarily dependent on the law and the facts, independent to follow their ideological and policy preferences, or, interdependent, in that they must consider others inside and outside the courtroom. While the extreme apolitical view of justices as mere umpires is either naïve or cynical, seeing them as unencumbered political actors is too simplistic. A wide body of literature suggests that Courts are distinct from other decision-making venues: justices have to publicly justify their decisions using established legal language, categories and precedents. To paraphrase Karl Marx, judges can make the law, but they do not make it as they please.
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