Principle #1: All political behavior has a purpose. Political actors engage in instrumental acts to further their goals.
Understanding federal justices and judges as “legislators in robes” begs a comparison between the political goals of Members of Congress and those of federal judges.
Members of Congress are understood to have 3 primary goals: a) re-election; b) influence; and c) good public policy.
By comparison, it is important to note that the reelection goal is of no concern to federal justices and judges because: a) rather than being elected, they are nominated by the President and confirmed by the Senate; and b) they enjoy lifetime appointments (or, as the Constitution reads, “during good behavior”).
How can our understanding of judicial behavior be improved by focusing on the influence and policy goals of justices and judges?
Describe the following elements of judicial behavior and the judicial process in terms of judges’ goals of influence and policy.
Question 1: Justices’ attempts to be the “swing voter” on a case or, more generally, in a given era of the court.
Question 2: Justices handing down decisions on abortion, school prayer, or property rights that affect the lives of millions of private citizens in America.
Question 3: Justices writing opinions that reverse or affirm the decisions of lower courts and establish precedents to be followed in future cases.
An important element of the power and influence of the judiciary in American politics is the perception (correct or incorrect) that the judiciary is “above politics” and makes its decisions on the basis of Constitutional principles and legal reasoning rather than political or policy goals.
Thus, there is irony in treating the behavior of the federal judiciary as goal-oriented and political.
Institutionally speaking, the judiciary is more influential the more a particular Court speaks with a unified voice on matters of Constitutional law.
Whereas unanimity generally increases the overall influence of the Court as a whole, individual justices and judges – as “legislators in robes” – might better meet their goals of achieving influence and having an effect on public policy by writing their own opinions either agreeing with the majority opinion in the form of a concurrence or disagreeing in the form of a dissent.
Concurrences imply that there is more than one way to interpret the Constitution on a given question and may remind the public that many decisions justices make are their political judgments rather than merely an interpretation of the Constitution.
Dissents remind the public that the decisions that justices make are controversial and that there are competing legitimate ways to view complex Constitutional questions.
Neither concurrences nor dissents help the Court maintain its influential image as the non-political arbiter of what the Constitution means.
Question 4: How are the policy goals of individual justices and judges (as exemplified both by issuing multiple opinions and dissents and by reversing precedents) in conflict with the overall influence of the judiciary?
Question 5: Given the judiciary’s reliance on a public perception that it is non-political, what are the likely long-term consequences of all of this goal-oriented, political behavior on the part of judges and justices?
