How Political Are Judges?

Cass Sunstein, writing on Bloomberg View, reviews the research on judicial voting patterns to determine whether judges are really as “political” as people seem to think.  The good news: federal judges aren’t nearly as bad as politicians.  “Judges are far from mere politicians; we don’t see anything like the kind of polarization found in Congress,” writes Sunstein. “At the same time, judicial predispositions matter, and they help explain why judges are divided on some of the great issues of the day.”  

The research also indicates that even judges are subject to a phenomenon called “group polarization.”  “[J]udicial voting becomes a lot more ideological when judges sit on panels with two others appointed by presidents of the same political party,” Sunstein explains. “For example, Republican appointees side with plaintiffs complaining of disability discrimination about 29 percent of the time — but that number drops to 17 percent when they are sitting with two fellow Republican appointees.”

As for the Supreme Court, Sunstein highlights research from a new book on the political leanings of Supreme Court justices since 1937:

Strikingly, they find that of the six most conservative justices in their entire sample, no fewer than three are currently on the court (Clarence ThomasAntonin Scalia and Samuel Alito). A fourth makes the top 10 (John Roberts). By contrast, none of the current justices ranks among the most liberal six, and only one makes the liberal top 10 (Ruth Bader Ginsburg).


Interesting that he gives the example of Republican appointees voting on disability cases, but not Democrat appointees. It would be interesting to see which side is more subject to (or resistant to) "group polarization".

Is anybody surprised that academics think the current court is lopsidedly conservative?

Imad Qureshi

I always thought Antonin Scalia was a republican senator until someone corrected me that he is a Supreme court judge.


Given that Presidents and Senators are increasingly more likely to give weight to candidates that fit their ideological interests, it shouldn't be all too surprising that the current crop of justices has more conservative "extremists" than have been in years past. It would seem that the group polarization in the judicial sphere can be determined by how long a political party holds the legislative and executive branches and the degree of conflict between and within the two branches.

It would be curious to explore, however, what sort of factors contribute to or near-unanimous decision making in potentially controversial subjects.


and so the real question is when is the last time we had a liberal president? (crickets)


That's an interesting way of stating that many of the Court decisions made in the post-New Deal era starting in 1937 were made by judges that would be considered, by today's standards, significantly Left of the judicial mainstream.

Judicial respect for precedence is both admirable and necessary, at least in the abstract. When decisions by earlier Courts, however, contradict the plain text of the Constitution, the case for blindly being bound by those decisions is less clear. Does anyone today seriously believe that a farmer growing wheat on his own property for his own use is participating in interstate commerce, or even commerce? Yet, such mental gymnastics is at the core of so many precedent-setting decisions by the New Deal courts (see Wickard v Filburn) that today's Court seems to face an almost impossible task of reaching decisions that are consistent with both New Deal Era precedents and the actual text of the Constitution.