Roosevelt Institute | Cornell University

Are Judges Just Partisans in Robes?

By Jared SiegelPublished October 22, 2015

Federally appointed judges are exhibiting more partisan behavior than the founders originally intended, which may begin to undermine our faith in the legitimacy of the courts.

By Jared Siegel 10/22/2015
Photo Credit

Article III, Section 1 of the U.S. Constitution states, "The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office…" Article III, Section 2 of the U.S. Constitution states, "The judicial power shall extend to all cases, in law and equity, arising under this Constitution." These two articles grant federal judges two very significant powers: the power to interpret and uphold the constitution, and the ability to serve lifetime appointments.
The primary purpose of creating an unelected federal court system is to insulate judges from public opinion. Justice is not determined by popularity. Any verdict should be based on a cases merits and constitutionality.
However, it is becoming increasingly apparent that judges are playing a more political role than the framers originally intended. According to "The Behavior of Federal Judges", a book published by the Harvard University Press, "Justices appointed by Republican presidents vote more conservatively on average than justices appointed by Democratic ones, with the difference being most pronounced in civil rights cases." Consider the issue of affirmative action. Cass R. Sustein, a Law professor at Harvard University, conducted a study in her book "Are Judges Political?". The study found, "From 1978 to 2004, Republican appointees cast 275 total votes, with 129, or 47 percent, in favor of upholding an affirmative action program. By contrast, Democratic appointees cast 208 votes, with 156, or 75 percent, in favor of upholding an affirmative action program."
Some government scholars contend that the American judicial system is inherently partisan. The theory states that although federal judges are not elected, they are appointed and confirmed by officials who are. Elected officials intrinsically want to appoint judges who share their political beliefs and attitudes.
However, this viewpoint ignores the fact that the shift towards an increasingly partisan judiciary is a relatively new phenomenon. In the early to mid 20th century, Republican presidents appointed judges on a reoccurring basis who either were liberal or turned out to be liberal. According to a Vanderbilt University Study, "the Supreme Court appeared to be a nonpartisan institution from the 1940s into the 1980s." However, it has been almost 25 years since a Republican president appointed a liberal judge and it has been more than 50 years since a Democratic president last appointed a justice who often voted with the court's conservatives. Kay L. Schlozman, a political scientist at Boston College, has stated, "polarization is higher than at any time I've ever seen as a citizen or studied as a student of politics."
The growing belief that judges are becoming partisan is undermining the legitimacy of the courts. If people think their cases are being ruled based on partisans beliefs rather than the merits of the law, they will gradually start loosing faith in our system of justice.