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 Thomas, Antonin 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).