84. Interests

When we describe Supreme Court justices as liberal or conservative, we mean that one (at least) of the factors influencing their decision-making is unrelated to the parties' dispute.  We're suggesting that judges are doing something more than merely resolving the dispute.  They're enforcing their political ideology, making the world conform a little more closely to their preconceived notions.

Empirical evidence of a sort demonstrates the effect.   A recent study suggested that the sentences imposed by federal judges under the old Guidelines broke down along party lines, with Republican judges going easy on white-collar criminals and Democratic judges getting all soft and gooey on street criminals. 

An obvious problem with large-scale studies like that is that they rest on the assumption that the cases being compared are substantially identical.  But they aren't.  One "street crime" might involve grabbing the hot dog and running off without paying, while another might involve 15 youths dragging a man out of his car and beating him to within an inch of his life.  It's hardly meaningful that judges should treat the two crimes differently.  (But then, the Guidelines themselves rest on the same assumption that all crimes within a certain category should be treated alike.)

A less obvious problem with such studies is their assumption about the way in which judges reveal their interest in cases.  The idea is that you can detect a judge's interest by looking at the result of the decision-making process.  If the plaintiff/prosecution wins, it means the judge is pro-plaintiff/pro-prosecution.  If the defense wins, it means the judge is pro-defense - an accusation that carries a vastly different ideological connotation when you're talking about civil rather than criminal cases.

In other words, such studies attempt to measure the interest of judges by examining the interests of the litigants. 

I think that's, at best, indirect.  Jefferson famously wrote that "[o]ur judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps."  He meant that judges get something out of judging.  That shouldn't be a surprise - why else do they do it? - and yet it's apparently not self-evident.  

The familiar division of Supreme Court justices into liberal / conservative / moderate / swing camps is based on the idea that the great motivator in their lives is political ideology.  That, it seems to me, is naive.   Think of the most politically-engaged person you know.  Can you really say that politics is the greatest motivator in that person's life?  More than, say, sex?  Or money?  Or power?  Or hatred of his/her enemies? 

Bill Clinton was, everyone agrees, a politician to the tips of his toes to the hair that John Updike compared to a possum's pelt, but we have Ken Starr's DNA test to prove that even his political instincts sometimes took second place.  It seems that Newt Gingrich, too, sometimes let his thoughts wander away from C-Span.  What's the likelihood that an appellate judge - someone who likes to sit in an office amid stacks of paper and open books - will be more devoted to political ideology than such consummate pols?

Justice Breyer was recently quoted as saying "that he hadn't detected any split on the high court along Republican and Democratic ideological lines.  'I haven't seen that kind of politics in the Supreme Court. Zero. It doesn't exist,' he said."  What he meant was: he sees a much different kind of politics in the Supreme Court.

Rather than trying to gauge the interests of judges by examining the results of the decision-making process, we should examine the process itself.  It doesn't take much imagination to perceive some of the interests judges might pursue in their professional lives.  Here's a short list of possibilities:

1.  Bribery, whether by money (see post 71, post 67, post 60, post 53, post 48, post 36), sex (see post 76), campaign contributions, or what have you.

2.  Friendship, which is a kind of pro bono bribery.   The legal profession has incredibly intricate spiderwebs of good ol' boy networks.

3.  Power.  Any judge who doesn't like power is in the wrong line of work.  Judges exercise power over the parties before them, and over the lawyers, and incrementally over society at large.  They're also in a position to adjust the distribution of power between the branches of government.  A judge who enforces the law is performing the will of the legislature and executive.  A judge who refuses to enforce a law - say, by finding it unconstitutional, or by suppressing evidence - is exerting his or her own will.  (Which, it ought to go without saying, doesn't necessarily mean the judge is wrong to do so.)

4.  Identification with the defendant, or with the victim, or with a lawyer, or (the flip side) contempt for them.  Sometimes, particularly in smaller communities, the feelings are based on personal relationships.  More often, I imagine, the process is akin to the way people decide what they feel about celebrities (every other year the Olympics do it to us: Bode Miller or the girl who will successfully if mysteriously keep puberty at bay long enough to become the next Olympics gymnastics princess.  We know almost nothing about them, but - perhaps for that very reason - our feelings about them run very high.)  For people with a particularly strong power drive, so to speak, it's natural to identify with the powerful and despise the vulnerable.  (See post 57, post 37, post 22, and post 19.)  So maybe this category is just a subset of #3.

Perhaps  some judges are influenced by party politics, too, but I think for any normal person that would be a considerably less powerful factor than any of the above.  

Electoral politics doesn't explain why judges' behavior tends to fall into predictable patterns.  Conspiracy theories are just preposterous.  The answer is hiding in plain sight: judges promote their own interests and gratify their own feelings and appetites, just like you, me, Bill, Newt, and everyone else.

Comments

[Have Opinion, Will Travel]

A good, thought provoking post. I commented further on my blog but eveybody, judges included, are the product of their life and professional experiences. I'm sure those experiences can't help but filter the way they approach the facts and the law of any case but when does subtle influence become an overt agenda? I suppose its when the result isn't driven by the facts and the law but by the result itself.

You have a great blog. I don't agree with everything you say but count me as a fan!