Posts Tagged ‘judicial politics’
Joseph Tanenhaus on Judicial Decisions and Political Science
In my investigation of how scholars of judicial politics adopted the decision as the core concept of the thing to be explained, part of my argument has been that this wasn’t unique to the behavioralists, but was true of ‘traditionalists’ as well. Joseph Tanenhaus, a participant in this conflict, agrees, in his Journal of Politics article “Supreme Court Attitudes Toward Federal Administrative Agencies” (1960). It’s easy to get distracted by the dispute between quantitative and qualitative approaches, but there is more here than that.
In the current controversy over the suitability of quantitative methods for the study of appellate-court behavior, there is a tendency to overlook a rather important similarity among the majority of contenders on both sides. Most contemporary analysts of appellate-court decisions, whether they be lower-court judges, practicing lawyers, journalists, professors of law, or political scientists, tend to comb discrete decisions in a search for uniformities and inconsistencies [my emphasis]. However much their motives may vary, analysts of both schools strive to generalize about phenomena which are, in some ways, unique. Utilizing the techniques it considers most apposite, each group collects and classifies data which it hopes to cast into formularies characterizing the behavior of a court and its individual members.
The Claim of Representation
I’ve been talking a lot about politics as contested claim making, and how taking formal ideas like judicial review and democracy for granted distorts our understanding of politics. Related is the idea that a lot of analytic terms are really just justifications for the status quo, and we’d be better off finding a different set of terms that aren’t tied to such justifications.
This is different from the standard story of politics science, which says that the discipline used to confuse normative ideas for empirical ones, until the behavioralists (pdf) severed the ties between the two, thus truly becoming a science. Since that time, political theory (in essence, the study of normative ideas) has been a sort of odd fit in the discipline–not unlike judicial politics, although for different reasons. Read the rest of this entry »
How Judicial Politics is Like Area Studies
Part of the critique of the standard approaches to judicial politics that I’ve been working on involves looking at the justifications offered for why the field chose decision-making as its standard concept of the thing to be explained, and why decision-making generally came to mean formal rulings on the merits by Supreme Court justices. I’ve argued elsewhere that part of this was a mistaken assumption that such decisions were action as opposed to talk and a mistaken assumption that decisions are necessarily efficacious.* (I say mistaken both because these assumptions are not true, but more importantly because they obscure rather than illuminate). Once we jettison those assumptions, it means that other actors should be brought into better focus and whether rulings are followed is an open question. This means shifting our attention from decision-making to legitimation and authority, with the more important question being not ‘why did this actor do as they did’ but ‘how will others respond.’ Read the rest of this entry »
Building Better Models of Politics: Welfare Claiming and Judicial Politics
I recently reread Joe Soss‘s excellent Unwanted Claims, and I wanted to pull out this discussion of the problems with standard political science models of politics. While discussing the calls of feminist scholars to address welfare claiming as political participation, Soss says:
Unfortunately, such calls to inquiry have drawn little attention from those who research political action. The reason for this lack of response is that welfare claims have not fit comfortably into the conception of politics that has prevailed in the field. Studies of political action have traditionally focused on the citizenship activities that are emphasized in theories of representative democracy. The focal point of politics, in this theoretical tradition, lies in the work of elite representatives in government. The majority of citizens are in a sense only indirect participants. They engage in political action primarily when they try to choose or sway the elected officials who participate more directly in the governing process (Hardy-Fanta 1993; Pateman 1970).
Accordingly, research on political action has traditionally identified the electoral institutions of government as the center of the political system and asked how citizens fulfilled their role as a source of “input” for the elite decision makers who participate more directly in the creation of public policy. (Conway 1985; Milbrath and Goel 1982; Verba and Nie 1972; Verba, Schlozman and Brady 1995) Political action, in this view, includes “acts that aim at influencing the government, either by effecting the choice of government personnel or by affecting choices made by government personnel” (Verba and Nie 1972, 2; Conway 1985, 1991). In strict terms, this definition might be seen as including citizen demands on all government personnel, including those who implement public policy. But in practice, researchers have studied citizens’ efforts to choose and influence their elected representatives while dismissing their direct claims on the administration of public policy as essentially “apolitical” (Milbrath and Goel 1982, 9; Verba and Nie 1972, 3).
In addition to being viewed as administrative matters, welfare claims have also struck observers as less than political for a second reason. Political action traditionally has been understood as public activity in which citizens advance their interests and preferences regarding “public issues” (Mills 1959, 8; Fraser 1987, 177) Thus as Nancy Fraser has argued, these claims have been viewed as “private-domestic or personal-familial matters in contradistinction to political matters” (1989, 298-99)
As Soss points out, scholars outside of the political behavior field had long ago rejected the politics-administration dichotomy, expanding the realm of politics to include demands made in the courts and bureaucracy, including implementation as a political process. Despite this, many of those fields still are organized around this dichotomy, or similar ones, like the politics-law dichotomy.
But he also argues that instead of grafting other types of demands onto the standard view rooted in representative government, a better approach is to define politics so that it includes both institutional and non-institutional politics, without privileging either. Indeed, since these words were written, a number of scholars of political behavior have adopted this broader approach, although I’d argue the standard model remains dominant.
Unfortunately, these problems aren’t limited to the field of political behavior. I’ve argued that a similar problem plagues judicial politics. It is but a minor adjustment to include demands made in a narrow class of cases before one court. Here, the elite decision makers are justices of the U.S. Supreme Court, and much of the focus is on constitutional cases. This focus exists, I would argue, for two reasons. First, discussion revolves around the counter-majoritarian difficulty–challenging the notion that decisions are motivated by law rather than politics, which would undermine the justification for the justices to overrule the decisions of democratically elected officials. The core idea of representative democracy remains foremost in our thinking. Second, constitutional decisions by the US Supreme Court cannot (at least formally) be overruled, and therefore can’t be seen as merely implementing the policies set by other decision makers. Such an approach also marginalizes legitimation activities. The problem is similar to the one Soss discusses–this sort of lens obscures the vast majority of activities, actors and arenas in which the politics of law takes place. And it does so while reinforcing the biases of the status quo.
It strikes me the only way to break out of this is to challenge the decision-making approach to understanding the formal activities of official elites. I’ve argued that their activities too, can be conceptualized as claims, just as the bringing of lawsuits or welfare participation can. The significance of their activities cannot be assumed, but depends on the willingness of other actors to accept them, and there is no guarantee that they will. This is true whether we’re talking about justices engaging in judicial review, other appellate courts engaging in statutory interpretation or trial courts processing routine criminal cases. And it’s equally true of those chosen through elections rather than appointments. That means rather than seeing legitimation as an afterthought, or a product of more fundamental forces, we must understand it as central to political action.
The model of decision-making within the framework of separation of powers / electoral democracy has deep roots not only in our theories of politics, but the very ways the discipline is structured. And academic political science, in adopting this model, was merely formalizing broader thinking within our political culture. So alternate approaches will always be swimming against the tide of conventional thinking. Then again, it’s unlikely that any truly useful theories of the social world will fail to do this. The first step is to see the problem and to be explicit when we are offering a serious challenge.
An Electoral Mandate is a Claim, Not a Fact
From four decades of intensive research on voting behavior, political scientists know a great deal about the determinants of individual voting choices. We know much less, however, about elections—the institutions in which these individual choices take place. This is a serious shortcoming, for it is elections that link voters to governance. The nature and quality of this linkage has long been a primary concern in the study of politics, especially democratic theorists. To some, the only purpose of elections is the permit voters to choose among political leaders; in short, that voters cannot or should not control the choice among politics in any more direct way. Many others, finding such limited control insufficient for a democracy, seek to show that elections can and should have policy meaning if subsequent government programs are to be seen as legitimate. [snip]
The idea of a mandate…plays a major role in the justification of elections as institutions and in the effort to construct explanations for particular election results. It helps also to reassure citizens that their primary forms of political participation–the vote-had an impact on the policies to which they will be subjected.
These words were written by Marjorie Randon Hershey in 1996. They are, admittedly, a bit disturbing. I’d like to believe things have improved since that time, but I’m not so sure. Since the 1950s (at least) political science has looked to individual formal decisions as the key to understanding politics, and often towards some internal factors, be they interests, attitudes, or ideas, as the causes of those decisions. Votes, court rulings, roll calls–these are the sorts of things political science has focused on. Things which fit comfortably with this sort of approach were foregrounded, things which did not were obscured. While plenty of criticisms of this approach have been voiced, the basic model has remained. A certain idealized view of democratic elections serves the same role for political science does for markets–it is the starting point no matter how much research suggests it is not a very useful way of making sense of the world.
What’s more, there is a presumption–especially in the field of judicial politics–that elected officials were presumptively legitimate, whereas judges, are not, especially when they challenge the decisions of elected officials (i.e. when they exercise judicial review to strike down a law or executive action) . That’s not true on either account. Elected officials may find their legitimacy challenged, and judges often act to strike down laws without controversy. This notion confuses democracy as a normative idea with democracy as an empirical explanation.
The standard move for a political scientist when confronted with the idea that an idea is an essentially contested concept, one that necessarily blends normative and empirical dimensions, one that, as a result, cannot be settled with facts, is to abandon the idea. That which cannot be settled should be abandoned for terms that can be operationalized. But this means avoiding talking about things that political actors take very seriously. As Hershey says:
No matter how difficult it may be to agree on a definition of mandate or to locate one in practice, it remains a powerful concept in political discourse. Politicians claim mandates in order to legitimize bold actions, journalists use the term frequently in interpreting elections, and scholarly studies continue to focus on various aspects of the idea of a mandate. In short, mandates are a central democratic myth–“an unquestioned belief held in common by a group of people that gives events and actions a particular meaning.” As a myth, the idea of a mandate gives meaning to election results and thus has a potentially important effect on the abilities of administration to govern.
I started to think of this excellent piece as I read various discussions of what the meaning of the upcoming presidential election would be from a few left leaning sources. While they disagreed on the answers, all asked the same questions–would there be a mandate, what would its content be? Lost here is that a mandate is not a thing that exists, like a chair or an apple, but a claim. It results from politics, as politics is largely a contest of claims.
So the better question is, what claims will be made in terms of the meaning of the elections, and which ones will be successful? How would the two main parties interpret it, and how would the media treat those claims? For what it’s worth, I think the right largely appreciates this. I doubt they would ask these questions. If Romney were to win, they will claim it’s a mandate for conservative policies. If Obama wins, no matter how large, they will claim it means little. How about the other side? I doubt the Democrats will claim any victory, no matter how large, is a mandate for liberalism. Those who hold the reins of power in the party have long been neoliberals.
As a result, no amount of polling evidence would lead to voters being seen as demanding some liberal outcome. Any such claim would not be seen as ‘reasonable’, but rather ‘political,’ in large part because it would be outside the bounds of what either party would accept.
This is why I get frustrated with repeated efforts to show that Americans don’t support this, or American oppose that, by those who seek to challenge far right positions or bipartisan consensus. It quite simply doesn’t matter. Either activists mobilize those opinions by engaging people to hold them to act, which has to be something more than voting, or such opinions will have no impact. Citing polls won’t change that (although polls can and should inform efforts to mobilize people).
Scholars and activists would do well to understand that democracy isn’t a particularly useful analytic framework, but that it is a powerful myth, that can be mobilized.
Notes on a Theory... 
On Judicial Decisions
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Written by David Kaib
November 11, 2013 at 5:51 pm
Posted in Submitted without comment
Tagged with Claims, Decisions, judicial politics, Law, Paul Kahn, Social Science