Judicial Politics in the United States

Mark C. Miller

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429973239
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Política

Judicial Politics in the United States examines the role of courts as policymaking institutions and their interactions with the other branches of government and other political actors in the U.S. political system. Not only does this book cover the nuts and bolts of the functions, structures and processes of our courts and legal system, it goes beyond other judicial process books by exploring how the courts interact with executives, legislatures, and state and federal bureaucracies. It also includes a chapter devoted to the courts' interactions with interest groups, the media, and general public opinion and a chapter that looks at how American courts and judges interact with other judiciaries around the world.

Judicial Politics in the United States balances coverage of judicial processes with discussions of the courts' interactions with our larger political universe, making it an essential text for students of judicial politics.

1

CHAPTER

Functions of Courts, Basics of Legal Analysis, and Sources of Law

The study of American judicial politics involves examining how courts, judges, and other judicial actors function and interact in the U.S. political system. For a long time, scholars studying the courts tended to treat them as a unique branch of the government, and judicial scholars tended to focus solely on the judiciary. Today, however, more and more scholars are studying the courts not as isolated institutions but instead as vital parts of the larger integrated political system. Scholars are now looking at how judges and courts interact with the other branches of government and with the general public. They are also studying how American judges interact with their colleagues abroad. Thus, courts are now seen as a part of the broader system of government in a world transformed by globalization.

Courts are generally becoming more important and increasing their power around the globe.¹ After World War II, many countries created new constitutional courts or greatly strengthened existing ones.² For example, the European Court of Justice became a highly activist court interpreting and enforcing European law throughout the member states of the European Union.³ However, American courts have remained some of the most powerful courts in the world. Summing up the views of most judicial politics scholars around the globe, Martin Shapiro, a prominent political scientist, wrote, “If any nation is the peculiar home of the expansion of judicial power, it is the United States.”⁴ Therefore, it seems natural that the study of judicial politics started with the political study of courts and law in the United States before spreading into the study of judicial systems around the world. This book will focus on judicial politics in the United States, although it will make comparisons to other countries when appropriate.

JUDICIAL POLITICS DEFINED

Before we define judicial politics, we should start at the beginning—with a definition of law. Black’s Law Dictionary states that laws are “rules promulgated by government as a means to an ordered society.” (Note that terms in bold are defined in the Glossary, found at the end of the book.) Another standard dictionary definition states that laws are “the principles and regulations established by a government or other authority and applicable to a people, whether by legislation or by custom, enforced by judicial decision.” Some political scientists define law as “[t]he presence of a centralized authority capable of exacting coercive penalties for violations of legal rules.”⁵ And according to many sociologists, “[l]aws are rules that are enforced and sanctioned by the authority of government.”⁶ In short, law is a system of ideas and rules, while the U.S. courts are the human and political institutions that interpret the law. Thus, courts use the law in order to do justice. Obviously, the rule of law and the role of courts go hand in hand.

The law is often described as having its own language and its own analytical approach. Since law is a closed system of rules, legal reasoning in part means understanding, and carefully using, the unique meaning of words in the law, which can differ greatly from their meaning in regular English usage. One of the keys to legal reasoning is “thinking like a lawyer,” which means speaking, writing, and reading like a lawyer or a judge.⁷ Legal reasoning is an analytical approach that pays special attention to the specific legal use of language as well as to the rules of society. Therefore, the law is in large part the language that lawyers and judges use when they resolve human conflicts using the official rules made by the government.⁸

Laws usually also reflect the norms of a particular society or group. Norms are less official than laws and can be defined as “shared rules of conduct that specify how people ought to think and act.”⁹ The violation of social norms may cause some discomfort for an individual, but the violation of laws may lead to formal legal penalties imposed by the judiciary as representatives of the society. Therefore, law is an approach to dispute resolution that works to preserve social peace and order, and it incorporates both the legal rules and the collective norms of a society.¹⁰

Next, we need a definition of politics. Politics is generally the allocation of power and resources in a society. According to Harold Lasswell, a famous political scientist, “Politics is who gets what, when, and how.”¹¹ Politics obviously deals with the workings of government and includes issues concerning how priorities, costs, and benefits are distributed in a society. As David Easton, another political scientist, argued, “Politics is the authoritative allocation of values.”¹² Politics can involve individuals, interest groups, and political parties, and all of these are important in their relationship to the courts. Laws are the end product of politics and are “the prize over which many political struggles have been waged.”¹³ Thus, law and politics are closely related.

The academic study of the combination of law and politics is known as judicial politics, which is often defined as “the political process by which courts are constituted and legal decisions are made and implemented.”¹⁴ Sociolegal scholars come from a variety of academic disciplines, but most scholars of judicial politics have their home in the field of political science. Political scientists tend to study the courts as a political institution as well as a legal institution.

Notice that the term judicial politics assumes that judges in the United States are both legal and political actors at the same time, making their decisions in part based on legal reasoning and legal analysis and in part based on ideology and other political factors. In the United States, courts are policy makers, just like legislative and executive officials. This is how one group of political scientists describes the intersection of law and politics: “Modern political systems rely on law as one of the chief instruments, if not the chief instrument, to carry out national objectives and distribute rights and duties. Thus courts and judges, insofar as they help to determine and apply ‘the law,’ are inevitably participants in the political processes.”¹⁵

The study of judicial politics also includes how courts and judges interact with other political actors and institutions, including interest groups, the media, Congress, the president, the federal bureaucracy, and of course the general public. This book will explore all of these aspects of judicial politics in the United States.

Scholars might argue that, in many parts of the world, law and politics are two distinct realms and ideas, although most political scientists feel that the separation between these two concepts is an artificial one, even abroad.¹⁶ But in the United States, law and politics have clearly been closely intertwined since our nation’s founding.¹⁷ It was no accident that lawyers were very influential among the writers of the Declaration of Independence of 1776 and the Constitution of 1789. A little less than half of the signers of the Declaration of Independence were lawyers, and lawyers constituted more than half of the attendees at the Constitutional Convention. Lawyers also dominated the state conventions called to ratify the U.S. Constitution and the conventions called to write the original state constitutions after the American Revolution.¹⁸ It is no accident that the United States has historically had one of the highest proportions of lawyer-legislators in the world.¹⁹ Lawyers are also elected in large numbers to be presidents of the United States and governors of the fifty states.²⁰ John Adams was the first of many lawyer-presidents, and he always felt that law should be thought of in combination with other great ideas, including politics, philosophy, and jurisprudence.²¹

In the United States, courts make legal decisions, but they also create public policy in a wide variety of areas, including free speech rights, abortion rights, the rights of criminal defendants, rules for drawing the lines of legislative districts, and the issue of spoken prayer in public schools, among many others. In most other societies, these public policy decisions would be made by the national legislative body or by the bureaucracy.²² However, in the United States law has never been isolated from political considerations.

Alexis de Tocqueville, a French philosopher, traveled to the United States in the early 1800s in order to compare American society and politics to the European models with which he was most familiar, in particular those of France and England. Tocqueville was fascinated with the role of lawyers and judges in the United States, arguing among other things that lawyers constituted the American aristocracy and noting that American judges were more powerful than jurists anywhere else in the world. He also observed that in America all legal issues eventually become political ones and all political issues eventually become legal ones. As Tocqueville wrote in his book Democracy in America, “The judicial organization of the United States is the hardest thing there for a foreigner to understand. He finds judicial authority invoked in almost every political context, and from that he naturally concludes that the judge is one of the most important political powers in the United States.”²³

OUR COMMON LAW ROOTS

The mixture of law and politics in the United States has roots in our historical connections to Great Britain. When the British founded the American colonies that eventually became the United States, they brought their notion of law and legal reasoning with them. Therefore, American courts and the broader American judicial system are part of the international Anglo-American common law family of legal systems. The common law family of legal systems originated in England and is based on judge-made court decisions and legal precedent, or the articulation of legal principles in a historical succession of judicial decisions, rather than on codified written laws, as in some other legal traditions. In short, in the United States, a court’s ruling today is based in large part on the rulings of past judges on similar legal issues. The precedent of prior judicial rulings, referred to with the Latin term stare decisis (almost literally “let the ruling stand”), is quite fundamental in common law countries.

Anglo-American judges decide current cases and disputes using the reasoning of prior similar cases as their foundation. In addition, judges on lower courts must follow the precedents of higher courts in our legal system. This concept is often called binding precedent, which means that the lower court judges must follow the rulings of higher courts in their court hierarchy. By contrast, persuasive precedent means that judges may, but are not required to, borrow the reasoning used by judges on roughly equivalent courts. Another way to put this is that binding precedent is a vertical type of precedent, while persuasive precedent is a horizontal type of precedent. For example, persuasive precedent often occurs when one state supreme court borrows the approach of another state supreme court, even though it is not required to do so.

The Anglo-American common law approach clearly has its roots in the English legal tradition. The English developed a system of professionalized judges very early after the Norman Conquest in 1066, and the king sent these professional judges out into the countryside to make legal decisions in his name. These judges helped resolve disputes that the king did not have the time or the desire to adjudicate. They often incorporated local norms into their decisions, but not all local or regional customs became commonly accepted throughout the kingdom. In order to remember why they had ruled as they did in prior cases, the king’s judges began to write down the reasoning for their decisions. The written collective reasoning and rulings of these professional judges (precedent) thus eventually became the common law of the English kingdom. Common law rules evolved as judges used precedent from other judges’ decisions blended with local customs as the foundations for their judicial rulings.²⁴ Thus, the Anglo-American common law principles evolved over time, instead of being enacted in a single comprehensive legal code written by legal experts, as happened in ancient Rome or in Napoleon’s France, for example. The common law is thus often considered judge-made law. The judge’s job in a common law system is to do justice in the particular case before him or her.

Today, common law judges are drawn strictly from the legal profession, and thus judges must first work as lawyers before they can be elevated to the bench. In many other societies, lawyers and judges are seen as two distinct professions with separate educational requirements, and individuals are unable to move from one profession to the other. In the common law world, however, judging and lawyering are closely linked, with relatively frequent movement between the two spheres of what is really considered a single profession. Because professional judges come from the ranks of attorneys and are trained to use precedent as the foundation for their decision making, in the common law tradition only one judge is needed per case at the trial level. However, in the appellate courts, panels of multiple judges hear appeals in this legal system.

DIFFERENCES BETWEEN THE COMMON LAW AND CIVIL LAW TRADITIONS

The common law tradition developed first in England soon after the Norman Conquest and later spread throughout the entire English-speaking world. This tradition is much different from the civil law family of legal systems of Continental Europe that are based on the Roman and Napoleonic written legal codes, with France, Spain, and Germany probably being the most notable contemporary models.²⁵ These civil law legal systems have spread into Japan, Latin America, Eastern Europe, and parts of Asia, among other places.²⁶ This section will compare various aspects of the common law legal systems with those in the civil law tradition.

One of the key differences between the two legal traditions is that in the common law tradition, judges are aided by an adversary system, that is, a system where lawyers protect the interests of their c...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgments
• List of Figures
• 1 | Functions of Courts, Basics of Legal Analysis, and Sources of Law
• 2 | Structure of Courts in the United States
• 3 | Judicial Selection
• 4 | The Legal Profession
• 5 | Trial Courts: Criminal Cases
• 6 | Trial Courts: Civil Cases
• 7 | The Appellate Court Process
• 8 | Studying Decision Making on Appellate Courts
• 9 | Public Opinion, Interest Groups, the Media, and the Courts
• 10 | Legislatures and the Courts
• 11 | Executives and the Courts
• 12 | Courts and Governmental Bureaucracies
• 13 | Courts Beyond the United States
• Conclusion
• Glossary
• Notes
• Table of Cases
• Index