Description
When the Supreme Court upheld the Affordable Care Act, some saw the decision as a textbook example of neutral judicial decision making, noting that a Republican Chief Justice joined the Court’s Democratic appointees to uphold most provisions of the ACA. Others characterized the decision as the latest example of partisan justice and cited the actions of a bloc of the Court’s Republican appointees, who voted to strike down the statute in its entirety. Still others argued that the ACA’s fate ultimately hinged not on the Court but on the outcome of the 2012 election. These interpretations reflect larger stories about judicial politics that have emerged in polarized America. Are judges neutral legal umpires, unaccountable partisan activists, or political actors whose decisions conform to—rather than challenge—the democratic will? Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, Thomas M. Keck argues that, while each of these stories captures part of the significance of judicial politics in polarized times, each is also misleading. Despite judges’ claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges “tyrants in robes,” undermining democratic values by imposing their own preferences. Just as often, judges and the public seem to be pushing in the same direction. As for the argument that the courts are powerless institutions, Keck shows that their decisions have profound political effects. And, while advocates on both the left and right engage constantly in litigation to achieve their ends, neither side has consistently won. Ultimately, Keck argues, judges respond not simply as umpires, activists, or political actors, but in light of distinctive judicial values and practices.
Read More
In this era of polarized politics, three stories about judges have emerged. When describing their own work, judges often say that they are neutral legal umpires. When describing opposing judges, partisan political actors regularly denounce them for undermining democratic values and imposing their own preferences. Scholars have long told a third story, in which judges are political actors who spend more time conforming to rather than challenging the democratic will. Drawing on a sweeping survey of litigation regarding abortion, affirmative action, gay rights, and gun rights during the Clinton, Bush, and Obama eras, Keck argues that each of these stories captures part of the significance of courts in polarized times, but that each, standing alone, is more misleading than helpful. In polarized America, advocates on both the left and the right engage in litigation more-or-less constantly to achieve their ends. But, Keck shows, neither side has consistently won, or consistently lost. Instead, judges have responded to this unending litigation, at different times and in different ways, as umpires, as activist tyrants, and as followers of whoever won the last election. For example, federal courts are indeed polarized on partisan lines, but across all four issues, this polarization is less extreme on the courts than it is in Congress. As for the ?undemocratic judge story,” here too Keck’s findings are hardly black and white. While some decisions can be characterized as thwarting the popular will, there are just as many in which the judges and the public seem to be pushing in the same direction. Ultimately Keck concludes that the time to fear courts is not when they start protecting rights, but when they start protecting only or mostly those rights favored by Republicans (or by Democrats). Keck’s rigorous analysis of these judicial controversies is sure to engender interest both inside and outside the academy and be hailed as a landmark study of judicial review.
Read Less