I see that Ann Althouse is again accusing anybody who disagrees with her about Samuel Alito’s nomination of undermining “the rule of law and the legitimacy of the courts.” Implicit here is the claim that the public legitimacy of courts is tied to the use of grand theory in legal reasoning, a claim which has the disadvantage of not being supported by any evidence. (I’m also puzzled: if originalism is such a publicly popular theory of jurisprudence, why are Alito and many of his defenders–including Althouse–falling over themselves to deny that he is a principled originalist like Thomas? I’d ask Robert Bork…) But then, of course, I’m just a liberal who believes that people don’t have rights, especially the most precious rights of all: you know, your right to be strip-searched without a valid warrant, your right to be sexually harassed at work, your state’s right to steal your copyright without having to pay damages, all the core freedoms at the heart of the liberal tradition.
Her strawman demolition does, however, remind me to comment about this recent post at Balkinization. It must be said that Tamanaha’s post is not a strawman; there are some political scientists who do indeed adopt a very strong version of legal realism. Jeffrey Segal, whose new book Tamanaha discusses, co-wrote the most influential political science book on judicial behavior of the recent decades, The Supreme Court and the Attitudinal Model. Segal and Spaeth argued that judicial decisions are effectively predicted by the political attitudes of the justice, with legal reasoning being mere ex post facto rationalization. Now, I don’t entirely disagree with their findings. Indeed, I think when you boil things down to their central thesis: that outcomes of votes on the merits in Supreme Court cases generally fall along predictable ideological lines–it’s largely correct. However, there are some major limitations to this way of thinking that are familiar to those who know the literature, and the data Segal and Spaeth adduce quite clearly cannot justify the fairly crude version of legal realism that they infer from it. I’ll summarize what I see as the two most significant problems. (I distinguish this from the more modest legal realist argument that law cannot be entirely separated from politics and that judges do not mechanically apply the law, which I think is self-evidently true.)
The first problem is that there’s a good deal of slipperiness in terms of defining a political attitude–is it a legal policy preference, or a political policy preference, or a partisan preference? The problem can be illustrated with the Supreme Court’s recent Raich decision. If the relevant attitudes are about legal policy (and as I read their model, that’s what they’re talking about), then the model works quite well: every justice but Scalia and Kennedy adhered to their long-standing preferences with respect to the Commerce Clause. But by the same token, if what’s relevant are the political policy outcomes–if judges are just “politicians in robes”–then the model gets as many as 7 of the 9 votes wrong. O’Connor, at least, suggests in her dissent that the state marijuana initiatives were bad policy, while Stevens implied in subsequent public statements that he though the law he upheld is a bad one, and it seems like a fair guess that Scalia and Kennedy support the federal drug law (with Thomas, I’m less sure, although his jurisprudence on federalist issues has been quite consistent.) So, oddly, an outcome that proves that many justices do adhere to their legal principles even when confronted with an outcome they dislike is used be some political scientists to advance a claim that the law doesn’t matter. With respect to Bush v. Gore, although Segal and Spaeth disagree it seems to me that if coded as an equal protection case the attitudinal model gets every vote wrong; the case was particularly bad because the majority voted their partisan preferences, as opposed to legal policy preferences.
But, of course, these cases are somewhat unusual–most cases are fairly easy to code, and in general there’s significant consonance between political and legal policy preferences. The bigger problem is the extent to which confining the model to Supreme Court outcomes on the merits, which in itself concedes a great deal of importance to law. First of all, Supreme Court justices–as Segal and Spaeth concede–generally weed out legally unambiguous cases, which is in itself a very important way in which the law constrains the ability of judges to impose political preferences. In addition, the attitudinal model tells us nothing about why a vote on the merits comes down to any 2 particular outcomes, as opposed to 2 others. If judges were merely “politicians in robes,” than Scalia’s abortion jurisprudence should consist of reading fetal personhood into the 14th Amendment, rather than simply permitting the states to legislate. It also doesn’t explain why the courts avoid cases they could take–it is almost certain that the most of the judges on the Supreme Court in 1971 were strongly opposed to the Vietnam War, but only Douglas wanted to take the cases suggesting that the war was unconstitutional. And, of course, lower courts are much more constrained than the Supreme Court (and while with respect to the public it’s results that matter, for lower courts the content of the Court’s reasoning certainly matters a lot.) So even if one accepts the validity of Segal and Spaeth’s data, it simply cannot support the kind of legal realist argument sometimes inferred from it; it just doesn’t (and cannot) prove that judges are political actors completely unconstrained by law.
To say that Supreme Court justices are merely “politicians in robes,” then, is just as untenable as a formalist arguing that judges can somehow avoid exercising significant discretion when interpreting frequently vague statutes or broad, abstract Constitutional provisions. Judges certainly do exercise discretion, in ways that are related (although not simply reducible to) political preferences, and unlike Althouse I think it’s appropriate for the Senate and not just the President to take these into account, and nor does pointing this out mean that you’re against “the rule of law” or believe that people don’t have rights. But this certainly doesn’t mean that the law is just politics, or that there is little difference between a Supreme Court justice and a legislator. The law certainly does matter, both as a constraint and as a constitutive part of a judge’s thinking. I don’t oppose Samuel Alito’s nomination because I believe he will simply use legal materials as a means of rationalizing simply policy preferences; I oppose him because I disagree with the theories and inclinations–the complex mix of legal and political judgments–that he will use when exercising the significant discretion that a Supreme Court justice has.