Towfigh, Emanuel V.

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Are apex court judges politicallybiased?Prof. Dr. Emanuel V. Towfigh 2019-05-01T15:39:42The question whether judges are politically biased is highly disputed. Some considerit a heresy even to ask the question, while others believe it to be a self-evidenttruism. If we look at how controversial the nomination procedures for new justicesto the U.S. Supreme Court are, we see that most participants in the U.S. politicalprocess at least believe that justices are influenced by their political ideology.There is some empirical evidence confirming this belief. The seminal contribution onthis issue is a study by Jeffrey Segal and Albert Cover.1 The authors construct anideology score for Supreme Court Justices, which is based on newspaper reportsregarding these judges prior to their election to the Court. The study finds a highcorrelation between the voting behavior of the individual justices and this score. Aconservative justice tends to support conservative positions, while a liberal justiceusually casts votes that favor liberal positions. This does not mean that politicalideology is the only predictor of judicial decisions of the Supreme Court. In fact, thereis a controversial discussion to what extent other factors, such as legal norms andlegal doctrine, play a role. However, it is largely accepted and has been confirmedby subsequent studies that political ideology plays at least a significant role in thedecision-making of the U.S. Supreme Court.The more difficult question is whether the U.S. Supreme Court is representative ofother apex courts or whether it is rather an expression of U.S. exceptionalism. Onthe one hand, it could be an indicator that legal decision-making on constitutionalmatters is highly political so that judges cannot decide without being influenced bytheir political conviction. On the other hand, it has to be taken into consideration thatthe nomination procedure for justices to the U.S. Supreme Court is highly polarizedand the political ideology of the nominated judges is very salient. In legal systems inwhich nominations are less controversial, expectations towards the judge might varyand consequently reduce the influence of political ideology.Testing these hypotheses is difficult – at least in Civil Law jurisdictions. Fromthe viewpoint of an empirical researcher, it is an advantage of the U.S. SupremeCourt that the voting behavior of each individual judge in every decision is publiclyknown. This is not the case in most Civil Law jurisdictions. The German FederalConstitutional Court, for example, publishes the number of judges who supportedthe decision and potential dissenting opinions. However, it does not publish theindividual votes of each justice, except in split decisions with 4-to-4 votes. Certainly,you can infer that a judge who writes a dissenting opinion opposed the judgment.However, judges are not forced to publish a dissenting opinion if they disagree withthe majority. Therefore, if the court takes a 5-to-3 decision with two judges publishingdissenting opinions, the latter two are the only ones of whom we certainly know how- 1 -they voted. Nevertheless, without consulting the (mostly secret) trial records, wecannot infer how the other six judges voted.Two rather recent studies try to work around this problem by making use of theinformation that is revealed by the authorship of dissenting opinions. A conferencepaper authored by Susumo Shikano and Verena Mack applies a statistical itemresponse model to map dissenting opinions of the judges of the German FederalConstitutional Court. This model shows that judges nominated by the SocialDemocrats tend to be oriented towards one end of the political spectrum, whilejudges nominated by the Christian Democrats have tendencies towards the otherend. However, this correlation is by no means perfect. Therefore, we can ratherinterpret the results as an indicator for a moderate political orientation.The second study was authored by a team of political scientists around ThomasGschwend and a legal academic of the University of Mannheim.2 The authors usea network analysis based on dissenting opinions to map how close the positions ofdifferent judges are to each other. The study mostly confirms the results of Shikanoand Mack. Gschwend and colleagues look at the decision-making of the secondsenate over a specific period and observe a moderate political orientation of thejudges: In decisions, in which dissenting opinions are published, conservative judgestend to vote with conservative judges, while liberal or left-leaning judges tend to votewith other left-leaning judges.Certainly, these results give us only part of the picture. Both studies focus ondecisions, in which dissenting opinions were published. Since such decisions usuallyconcern highly salient questions of significant political importance, one might expectpolitical ideology to have its strongest influence, if there is any. This effect mighttherefore disappear if we also include the less controversial day-to-day cases withwhom the court predominantly deals, but which do not provoke any dissents.However, one tendency emerges: Judicial decision-making in Germany is lesspoliticized than in the U.S. If even highly political cases only show a moderatepolitical orientation of judges, then the influence of political ideology seems to besignificantly less important than in the U.S. Supreme Court. We can only speculateabout the reasons: It might be due to the nomination procedure which is much moreconsensus-oriented in Germany than in the U.S. Or it might be due to the legalculture: In Germany, the myth of judges as norm-applying technocrats is still widelyaccepted (and might thus also shape the judges’ self-understanding), while it hasbeen largely disenchanted by the legal-realism and critical-legal-studies movementsin the U.S. Whatever the reason, the question certainly merits further research.- 2 -

Are apex court judges politically biased?

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Are apex court judges politically biased?

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