Social Policymaker, Arbitrator, And Regulator
The Judiciary as Social Policymaker, Arbitrator, and Regulator:
An Integrated Theory of the Judiciary
PSC 332
11/26/2013
The judiciary plays a unique and pervasive role in American society because of its influence in establishing legal precedent, regulating industry, and crafting social policy. The judiciary is the arbitrator of disputes involving nearly every aspect of human experience, and in many cases these disputes cannot or will not be resolved by the executive, the legislative, and the electorate. Unlike the other branches, the judiciary has no choice but to make some type of decision on the presenting issues. Even a decision not to hear a case has significant repercussions on the relevant issues, …show more content…
and a stalemate is not a possibility. In a pluralistic society currently characterized by political stagnation, the judiciary is arguably American society’s most powerful institution. This analysis examines the specific role of the judiciary in resolving disputes related to legal constitutionality, social policy, and regulation of industry. A concurrent political analysis of the contemporary political environment is provided in light of judicial decision-making, noting the influences of pluralism and ideological schism as contributing to political stagnation. This political context increases the influence of the judiciary, yet at the same time leads to political resentment against the institution. However, since the judiciary appears to follow the trend lines of public opinion on social, political, and regulatory matters, this resentment of judicial activism should be concurrently mitigated. This analysis concludes with the presentation of an integrated theory of the judiciary. This theory reflects the contingent, ambiguous, and paradoxical nature of the judiciary as it attempts to strike a balance between impartial legal interpretation and its inevitable placement in social and political realities.
The Judiciary as Social Policymaker, Arbitrator, and Regulator In their opening chapter, Banks and O’Brien (2008) begin with an analysis of the judiciary’s role in influencing social policy related to homosexual rights as a result of the decision in Lawrence v. Texas. Given the U.S. Supreme Court’s recent decisions against the Defense of Marriage Act and in support of state sanctions of gay marriage, the judiciary’s influence in social policy related to the rights of homosexuals has only increased since Banks and O’Brien’s analysis. All of these decisions reflect the manner in which the court both reflects public-opinion trends and is simultaneously an impetus in pushing social policy further than the political environment is able to do. In the Lawrence v.Texas decision, the Supreme Court reflected the increasing tolerance for homosexual rights in American legislation. “By the late 1990s all but five [states] had struck down or repealed their laws, either by judicial action or by legislation” (Banks & O’Brien, 2008, p. 2). Likewise, by the summer of 2013, when the Supreme Court issued its two rulings on gay marriage, public-opinion polls showed increasing tolerance for gay marriage among the American electorate. However, a strong plurality of Americans remained opposed to homosexuality at the time of the Lawrence decision and remains opposed to gay marriage today. Meanwhile, state legislatures, state ballot measures, Congress, and the White House remain strongly divided over the issue of gay rights in general and over gay marriage in particular. The Supreme Court’s decision in Lawrence and the decisions on gay marriage this summer resolved what the political system and the electorate could not. Moreover, these two decisions show that the judiciary has a tendency to move in the direction of the trend, at least in social policy. The trend in gay rights has been toward increasing these rights. Similar to the rulings in the Civil Rights era, the judiciary recognizes the public-opinion trend, yet also is willing to push it farther than the electorate and/or the political system is willing to do at the time. However, the political system and ostensibly the electorate attempt to influence the judiciary, reflecting resentment toward the judiciary as a so-called activist institution. Brannon Denning, writing in Slotnick (2005), notes the role of the blue slip as a political tactic by U.S. senators to defeat presidential nominees to the judiciary, most notably the Supreme Court. This tactic is used by both sides of the Senate chamber. The Republicans used it under the Clinton administration, and the Democrats used it under the administration of George W. Bush. When a judicial nomination is presented that appears too far outside the ideological bounds, the Senate rejects the nomination. However, the Senate is also given ambiguous responsibilities under Article II, section 2 of the U.S. Constitution, which provides it with the power of “advice and consent” over judicial nominees (Slotnick, 2005, p. 565). This ambiguity has resulted in general approval of the Senate majority even when judicial nominees are made outside of the majority’s general ideological spectrum. The primary issue arising when rejection occurs is the issue of whether the nominee is too far outside ideological bounds. The fact that the Senate majority, during times when it represents the party out of power in the executive, approves any nominees is tacit recognition that the judiciary should at least be partly apolitical. The fact that the Senate majority rejects some nominees shows that the judiciary is somewhat political. Denning notes the ambiguity in the constitution about what advice and consent is intended to mean. “The Constitution does not explicitly set forth an advice-giving mechanism, but the text seems to anticipate more than a rubberstamp role for the Senate” (Slotnick, 2005, p. 565).
The framers of the constitution recognized the separate powers of the branches, but the framers also recognized that checks and balances between the branches would present some responsiveness of the judiciary to political and social forces. This responsiveness is reflected in rulings of the judiciary itself, which cites prevailing public opinion, legislative trends, and the constitution when making decisions of social policy. For example, Justice Anthony Kennedy in the Lawrence decision cited recent legislative trends in the United States regarding sodomy, as well as similar trends in Western Europe (Banks & O’Brien, 2008). Of course, justices such as Antonin Scalia argue for the original intent of the framers to be recognized in judicial decisions, not political or social responsiveness. “For Justice Scalia, Lawrence wrongly overturned Bowers because Bowers was proof that democratic majorities, instead of the judiciary, have the power and legitimacy to establish legislation on the basis of moral choices” (Banks & O’Brien, 2008, p. 4).
If the judiciary is influenced by political and social factors in American society, rather than impartial evaluation of constitutional law, one should predict that this influence will originate in the Senate’s advice and consent role. The Senate will attempt to obstruct, delay, or approve nominees that reflect a certain ideological position on social and political issues. One should predict higher levels of obstructionism and delay during periods of high political and social conflict.
In fact, the data provided by Denning supports this premise. The index he compiled on obstructionism and delay correlates by year. The “findings suggest that both parties are responsible for obstruction and delay but also, given the higher indexes for presidential years, that the problem may be an institutional one. The Index has generally been creeping upwards since the 97th Congress whether there has been divided or unified government” (Slotnick, 2005, p. 575). The institutional divisions in the Senate have only increased since Denning’s analysis, as the recent controversy over filibustering and the exercise of the so-called nuclear option to end this practice attest.
Other analyses of the nomination process reflect the manner in which the judiciary is partially but not wholly recognized as in independent and distinct institution. George Watson and John Stookey note the reality that only the most ideologically extreme nominees encounter enough opposition in the Senate, even during times of White House-Senate ideological schism, to result in the nomination’s rejection. The Senate majority is willing to approve nominations that are not ideologically aligned with the majority out of respect for the autonomous authority of the executive and the judiciary as outlined in the constitution (Slotnick, 2005). The Senate perceives the judiciary to be both distinct and reflective, to some degree, of social and political will.
Judicial appointments to the federal courts reflect a politically and socially divisive nomination system as they are made through the White House and the Senate. In addition, the state courts select judges through political appointment or even general elections (Banks & O’Brien, 2008). These origins of judicial appointments partly explain why the courts might reflect social and political trends, with judicial decision-making tending to lean toward the direction of these trends.
Other forms of influence result in a judiciary that recognizes social and political forces rather than an impartial reading of the constitution in its decision making. Lobbying is identified by Abraham (1998) as a determinant in judicial decisions, though this level and nature of lobbying is distinct from political lobbying. Rather, Abraham (1998) identifies lobbying of the judiciary to include “the well-written brief, the persuasive oral argument, and most literature” (p. 255).
For example, the justices might read legal periodicals that reflect the latest thinking on constitutional law in relation to social and political issues. Abraham (1998) claims that the “best legal thinking finds expression in these periodicals,” and Justice Holmes once remarked upon the importance of Supreme Court justices to have their finger on the “felt necessities of the times” (p. 255). A study of the Supreme Court’s influence from legal periodicals from the 1920s into the 1950s found some opinions to be quite similar to the arguments made in these periodicals. In Erie v. Tompkins, which overturned a longstanding precedent, Justice Brandeis credited a legal scholar in the decision.
Another form of influence identified by Abraham (1998) is social science data. This data is produced by social scientists deeply embedded in the social and political framework of American society. Indeed, the focus of social science research typically addresses the prevailing social and political trends deemed to be particularly influential of the era. The Brown v. Board decision cited social-science data, while studies of Supreme Court decisions from Black through the Rehnquist eras found such data cited in one-third of the decisions. Political science data represented 43 percent of the frequency of social-science study data in the decisions, with economics, sociology, psychology, history, and anthropology also represented, respectively, in ranking order.
Moreover, the data from this study found that social-science data was much more likely to be cited by majority opinions than dissenting opinions (Abraham, 1998). The least productive members of the bench, and those more likely to be in the minority, are much less likely to cite social science data. “Certain members of the Court proved themselves to be demonstrably comfortable with the use of social science findings” (Abraham, 1998, p. 258). These justices are also more likely to write the majority decisions that have the greatest influence on the social, political, and legal development of American society. The United States’ legal system is relatively unique in the industrial world for its influence in regulating the private sector (Banks & O’Brien, 2008). For example, environmental law in the United States has emerged to a significant extent from civil litigation, not the legislative process (Abraham, 1998). Environmental groups have used the courts to pursue an environmental and conservationist agenda that will not or cannot be addressed by state legislatures, the executive, or Congress due to political schism and the influence of industry in the political system. The role of the judiciary as a regulator of industry reflects the distinction between civil and common law. Banks and O’Brien (2008) note the fact that the American legal system, originating in English common law, has certain characteristics, notably judicial review and an adversarial nature. These characteristics result in a judiciary that might be considered more influential in pushing social norms related to the level and nature of regulation of private industry. For example, the judicial review component of common law versus civil law means that the judiciary is called upon to resolve disputes, whereas civil law places the judiciary in the role of inquiry. “Civil law systems … are structured to arrive at legal truths under a written code” that reflects legislative intent rather than judicial interpretation (Banks & O’Brien, 2008). Indeed, this distinction is notable in the finding that “some European constitutional courts are now playing a more dynamic role in interpreting law and making social policy” (Banks & O’Brien, 2008, p. 13). This quotation implies the social policy function of the American judiciary as it regulates industry in response to emerging social norms. The adversarial nature of the American legal system also places the judiciary in the role of regulator.
Consumer-interest groups, environmentalist groups, and public-interest groups have routinely filed suit against corporations and government agencies considered lax in their interpretation of regulatory laws (Abraham, 1998). Civil litigation recognizes the value of adjudicating contested areas of commercial regulation rather than relying upon legislative action. Even though the courts interpret the law in part by attempting to identify legislative action, Abraham (1998) notes the fact that civil litigation decisions only rely on extra-legislative sources, including social science data and legal arguments in legal periodicals. Civil litigation thus reflects the complex and varied social interests, norms, values, and beliefs with a stake in industry practices.
Similarly, segregation and desegregation decisions by the judiciary have been largely influenced by civil litigation as a result of social and political schism and stalemate. The National Association for the Advancement of Colored People, the American Civil Liberties Union, and other civil-rights organizations have brought cases before the court that become the test cases that led to extraordinarily influential judicial decisions on social structures and norms. These organizations, as Abraham (1998) notes, are often outside the social and political mainstream when they bring civil …show more content…
litigation.
For example, Dr. Martin Luther King Jr. and the civil-rights movement emphasized the predominance of natural law versus existing laws of segregation in the American South. “This is law that would be binding on human societies in the absence of, or as a supplement to, positive law” (Abraham, 1998, p. 4). Judicial relief by the civil-rights movement sought to break the stagnant social and political mechanisms in the legislatures and executive offices at both the state and federal levels. Civil litigation by the civil-rights movement had to call upon the judiciary to do more than just uphold the existing laws but rather to examine them in light of emerging social norms of racial justice, norms that were emerging even as they were also being contested by social conservatives.
The notion of the judiciary in the role as regulator or private enterprise, particularly its negligent or predatory attributes, is firmly entrenched in the American consciousness. Legal non-fiction and films, including A Civil Action (Har, 1996), routinely depict story lines involving crusading attorneys fighting the injustices of corporations. The judiciary is often idealized as the provider of justice even as the institution is presented as susceptible to corporate influence and political corruption.
The failure of the executive and legislative to protect Americans from environmental harms caused by corporations is particularly prescient in literature such as A Civil Action ( Harr, 1996). In the book, the Environmental Protection Agency emerges as a force for environmental justice only after the crusading efforts of Jan Schlichtmann. Civil litigation prods the executive into eventually taking action, both as the result of actions by private parties and as a result of lawsuits filed by the EPA. This function of the judiciary reflects origins of common law in resolving disputes between the commons (the feudal term equivalent to the environment) and those who would spoil it (Abraham, 1998).
The common law role of the judiciary is essential to the role of the judiciary as the maker of social policy. This premise might seem negated by the role of common law as rooted in legal precedent, which would seem to be a conservative social force. If common law seeks to recognize legal precedent, how it can be a force of judicial activism in nudging social policy toward progress?
Abraham (1998) notes the paradoxical aspect of common law as both reliant on legal precedent and reflective of social trends.
“Often based on precedents, common law embodies continuity in that it binds the present with the past” (Abraham, 1998, p. 6). Common law is thus contingent, which means it is simultaneously emerging from what came previously yet also capable of producing something new. This ambiguity reflects the fluid nature of social reality itself.
Legal precedent recognizes the value of the past. Yet the judiciary is engaged in evaluating legal precedent as applied to contemporary cases. Inevitably, the role of common law in recognizing and altering precedent as applied to contemporary cases results in the creation of new precedents, which in turn will be evaluated in the future. Common law might be bound by general social principles in legal contexts, but it inevitably places the judiciary in the role of evaluating the continued relevance of those principles as new legal contexts emerge through civil
litigation.
The origins of common law reflect the judiciary’s longstanding role as the arbitrator of private disputes involving property rights, which can be conceptualized as the primary issue confronting government regulation of industry. Abraham (1998) notes the role of common law in the feudal structures characterized by disputes between propertied nobles and the monarchs. “Private rights of freemen were not subject to arbitrary change, and the primary task of the monarch was to preserve and protect the law” (Abraham, 1998, p. 7). The King’s Bench, Exchequer, and Common Pleas emerged as the courts of common law involved in resolving these disputes.
Similarly, the judiciary today is significantly involved in resolving disputes between government and corporations, which might be considered the contemporary counterparts of the monarchy and the propertied class of feudal times. Abraham (1998) notes the emergence of administrative agencies and courts that play significant roles in broadly interpreting the law and regulatory policy. The laws written by Congress related to environmental protection, for example, are too broad to provide easy-to-follow direction for regulatory agencies and corporations. The impact of the law on private sector activities and regulatory authority is constantly reviewed and interpreted by the judiciary.
An Integrated Theory of the Judiciary The data and findings from Abraham (1998), Banks and O’Brien (2008), and Slotnick (2005) should lead to an integrated conceptualization of the judiciary. This conceptualization should depart from the perspective of the judiciary as an ideologically, socially, and politically distinct institution. Indeed, the latter perspective conceptualizes the judiciary as a non-ideological, asocial, and apolitical institution. In fact, the integrated theory of the judiciary is supported by the legal scholarship. The functional perspective of the judiciary recognizes the institution’s reflection of and influencer of popular will. “The law will be respected as long as it is interpreted and applied within the structures of justice as accepted by the majority of society – in the long run, if not always in the short. Law is, after all, the expressed will of those who rule society” (Abraham, 1998, p. 1). However, this generalized statement belies the complexity and ambiguity of the judiciary’s role as an influence on popular will. As the rulings since Lawrence to this summer’s decisions on gay marriage illustrate, the judiciary appears to both reflect and nudge social policy in the direction of the trend. Critics of so-called judicial activism fail to recognize that the trend line is typically against their conservative agenda. The judiciary attempts to strike a balance between dual and paradoxical, but not contradictory, roles of public responsiveness and impartial legal interpretation. The use of social-science data, reference to Western European legal, social, and political trends, and citation of arguments from legal periodicals are just one set of evidence to prove the integrated nature of the judiciary. Moreover, the role of common law, evaluation of legal precedent, and the adversarial nature of the American legal system results in a judiciary that is constantly evaluating the relationship between government and industry. The feudal disputes between the monarchs and the private property rights of the aristocracy continue to be the focus of civil litigation filed by private parties, corporations, environmentalist groups, consumer groups, and public-interest groups. Indeed, the notion of how the commons should be protected by the monarch from private utilization continues to be the prevailing principle that is constantly adjudicated by the courts today. The integrated theory of the judiciary should be refined to account for fluctuations in social and political schism and resulting stagnation in legislative action. The level and nature of the judiciary’s influence as a social policymaker, arbitrator, and regulator should vary depending on levels and natures of political stagnation. For example, during times of strong political stagnation, there should be relatively minimal legislative action. Indeed, the current state of political stagnation in Congress today has resulted in the lowest number of new legislation ever recorded in its history (Raju, 2013). “Indeed, the 113th Congress is on track to go down as the least productive in history” (Raju, 2013, p. 1). One should predict that the judiciary should become more integrated and less distinct as an institution during such a period of political and legislative stagnation. The judiciary will increasingly be called upon to resolve social and political disputes, ranging from issues as disparate as industry regulation and gay rights. Simultaneously, accusations of judicial activism and resentment by those stakeholders on the losing end of judicial decisions will also show an increase. Abraham (1998) notes the occasional response by the legislative to respond to real or perceived judicial activism on social policy by issuing resistant laws. Certainly, the responses by some conservative state legislatures to the rulings on gay rights have confirmed this finding. However, if judicial decisions tend to lean toward the trend line of social norms and values, one should predict that these efforts will only represent short-term resistance, and the Supreme Court’s decisions this summer on gay marriage will be reinforced by increased expansion rights among the states. The integrated theory of the judiciary requires one to take a long-term view of its role in social progress. The judiciary should be expected to at times reflect popular opinion and at other times nudge it forward. This dynamic will result in legal decisions that are at times conservative and other times progressive. However, the long-term view of the judiciary will recognize a general reflection of popular will.
References
Abraham, H.J. (1998). The judicial process. New York: Oxford University Press.
Banks, C. & O’Brien, D.M. (2008). Courts and judicial policymaking. New York:
Pearson/Prentice Hall.
Harr, J. (1996). Civil Action. New York: Vintage Books.
Raju, M. (2013, November 22). The (really) do-nothing Congress. Politico. Retrieved from http://www.politico.com/story/2013/11/the-do-nothing-congress-100274.html. Slotnick, E. (2005). Judicial politics: Readings from judicature. Washington, D.C.: CQ Press.
An Integrated Theory of the Judiciary
PSC 332
11/26/2013
The judiciary plays a unique and pervasive role in American society because of its influence in establishing legal precedent, regulating industry, and crafting social policy. The judiciary is the arbitrator of disputes involving nearly every aspect of human experience, and in many cases these disputes cannot or will not be resolved by the executive, the legislative, and the electorate. Unlike the other branches, the judiciary has no choice but to make some type of decision on the presenting issues. Even a decision not to hear a case has significant repercussions on the relevant issues, …show more content…
and a stalemate is not a possibility. In a pluralistic society currently characterized by political stagnation, the judiciary is arguably American society’s most powerful institution. This analysis examines the specific role of the judiciary in resolving disputes related to legal constitutionality, social policy, and regulation of industry. A concurrent political analysis of the contemporary political environment is provided in light of judicial decision-making, noting the influences of pluralism and ideological schism as contributing to political stagnation. This political context increases the influence of the judiciary, yet at the same time leads to political resentment against the institution. However, since the judiciary appears to follow the trend lines of public opinion on social, political, and regulatory matters, this resentment of judicial activism should be concurrently mitigated. This analysis concludes with the presentation of an integrated theory of the judiciary. This theory reflects the contingent, ambiguous, and paradoxical nature of the judiciary as it attempts to strike a balance between impartial legal interpretation and its inevitable placement in social and political realities.
The Judiciary as Social Policymaker, Arbitrator, and Regulator In their opening chapter, Banks and O’Brien (2008) begin with an analysis of the judiciary’s role in influencing social policy related to homosexual rights as a result of the decision in Lawrence v. Texas. Given the U.S. Supreme Court’s recent decisions against the Defense of Marriage Act and in support of state sanctions of gay marriage, the judiciary’s influence in social policy related to the rights of homosexuals has only increased since Banks and O’Brien’s analysis. All of these decisions reflect the manner in which the court both reflects public-opinion trends and is simultaneously an impetus in pushing social policy further than the political environment is able to do. In the Lawrence v.Texas decision, the Supreme Court reflected the increasing tolerance for homosexual rights in American legislation. “By the late 1990s all but five [states] had struck down or repealed their laws, either by judicial action or by legislation” (Banks & O’Brien, 2008, p. 2). Likewise, by the summer of 2013, when the Supreme Court issued its two rulings on gay marriage, public-opinion polls showed increasing tolerance for gay marriage among the American electorate. However, a strong plurality of Americans remained opposed to homosexuality at the time of the Lawrence decision and remains opposed to gay marriage today. Meanwhile, state legislatures, state ballot measures, Congress, and the White House remain strongly divided over the issue of gay rights in general and over gay marriage in particular. The Supreme Court’s decision in Lawrence and the decisions on gay marriage this summer resolved what the political system and the electorate could not. Moreover, these two decisions show that the judiciary has a tendency to move in the direction of the trend, at least in social policy. The trend in gay rights has been toward increasing these rights. Similar to the rulings in the Civil Rights era, the judiciary recognizes the public-opinion trend, yet also is willing to push it farther than the electorate and/or the political system is willing to do at the time. However, the political system and ostensibly the electorate attempt to influence the judiciary, reflecting resentment toward the judiciary as a so-called activist institution. Brannon Denning, writing in Slotnick (2005), notes the role of the blue slip as a political tactic by U.S. senators to defeat presidential nominees to the judiciary, most notably the Supreme Court. This tactic is used by both sides of the Senate chamber. The Republicans used it under the Clinton administration, and the Democrats used it under the administration of George W. Bush. When a judicial nomination is presented that appears too far outside the ideological bounds, the Senate rejects the nomination. However, the Senate is also given ambiguous responsibilities under Article II, section 2 of the U.S. Constitution, which provides it with the power of “advice and consent” over judicial nominees (Slotnick, 2005, p. 565). This ambiguity has resulted in general approval of the Senate majority even when judicial nominees are made outside of the majority’s general ideological spectrum. The primary issue arising when rejection occurs is the issue of whether the nominee is too far outside ideological bounds. The fact that the Senate majority, during times when it represents the party out of power in the executive, approves any nominees is tacit recognition that the judiciary should at least be partly apolitical. The fact that the Senate majority rejects some nominees shows that the judiciary is somewhat political. Denning notes the ambiguity in the constitution about what advice and consent is intended to mean. “The Constitution does not explicitly set forth an advice-giving mechanism, but the text seems to anticipate more than a rubberstamp role for the Senate” (Slotnick, 2005, p. 565).
The framers of the constitution recognized the separate powers of the branches, but the framers also recognized that checks and balances between the branches would present some responsiveness of the judiciary to political and social forces. This responsiveness is reflected in rulings of the judiciary itself, which cites prevailing public opinion, legislative trends, and the constitution when making decisions of social policy. For example, Justice Anthony Kennedy in the Lawrence decision cited recent legislative trends in the United States regarding sodomy, as well as similar trends in Western Europe (Banks & O’Brien, 2008). Of course, justices such as Antonin Scalia argue for the original intent of the framers to be recognized in judicial decisions, not political or social responsiveness. “For Justice Scalia, Lawrence wrongly overturned Bowers because Bowers was proof that democratic majorities, instead of the judiciary, have the power and legitimacy to establish legislation on the basis of moral choices” (Banks & O’Brien, 2008, p. 4).
If the judiciary is influenced by political and social factors in American society, rather than impartial evaluation of constitutional law, one should predict that this influence will originate in the Senate’s advice and consent role. The Senate will attempt to obstruct, delay, or approve nominees that reflect a certain ideological position on social and political issues. One should predict higher levels of obstructionism and delay during periods of high political and social conflict.
In fact, the data provided by Denning supports this premise. The index he compiled on obstructionism and delay correlates by year. The “findings suggest that both parties are responsible for obstruction and delay but also, given the higher indexes for presidential years, that the problem may be an institutional one. The Index has generally been creeping upwards since the 97th Congress whether there has been divided or unified government” (Slotnick, 2005, p. 575). The institutional divisions in the Senate have only increased since Denning’s analysis, as the recent controversy over filibustering and the exercise of the so-called nuclear option to end this practice attest.
Other analyses of the nomination process reflect the manner in which the judiciary is partially but not wholly recognized as in independent and distinct institution. George Watson and John Stookey note the reality that only the most ideologically extreme nominees encounter enough opposition in the Senate, even during times of White House-Senate ideological schism, to result in the nomination’s rejection. The Senate majority is willing to approve nominations that are not ideologically aligned with the majority out of respect for the autonomous authority of the executive and the judiciary as outlined in the constitution (Slotnick, 2005). The Senate perceives the judiciary to be both distinct and reflective, to some degree, of social and political will.
Judicial appointments to the federal courts reflect a politically and socially divisive nomination system as they are made through the White House and the Senate. In addition, the state courts select judges through political appointment or even general elections (Banks & O’Brien, 2008). These origins of judicial appointments partly explain why the courts might reflect social and political trends, with judicial decision-making tending to lean toward the direction of these trends.
Other forms of influence result in a judiciary that recognizes social and political forces rather than an impartial reading of the constitution in its decision making. Lobbying is identified by Abraham (1998) as a determinant in judicial decisions, though this level and nature of lobbying is distinct from political lobbying. Rather, Abraham (1998) identifies lobbying of the judiciary to include “the well-written brief, the persuasive oral argument, and most literature” (p. 255).
For example, the justices might read legal periodicals that reflect the latest thinking on constitutional law in relation to social and political issues. Abraham (1998) claims that the “best legal thinking finds expression in these periodicals,” and Justice Holmes once remarked upon the importance of Supreme Court justices to have their finger on the “felt necessities of the times” (p. 255). A study of the Supreme Court’s influence from legal periodicals from the 1920s into the 1950s found some opinions to be quite similar to the arguments made in these periodicals. In Erie v. Tompkins, which overturned a longstanding precedent, Justice Brandeis credited a legal scholar in the decision.
Another form of influence identified by Abraham (1998) is social science data. This data is produced by social scientists deeply embedded in the social and political framework of American society. Indeed, the focus of social science research typically addresses the prevailing social and political trends deemed to be particularly influential of the era. The Brown v. Board decision cited social-science data, while studies of Supreme Court decisions from Black through the Rehnquist eras found such data cited in one-third of the decisions. Political science data represented 43 percent of the frequency of social-science study data in the decisions, with economics, sociology, psychology, history, and anthropology also represented, respectively, in ranking order.
Moreover, the data from this study found that social-science data was much more likely to be cited by majority opinions than dissenting opinions (Abraham, 1998). The least productive members of the bench, and those more likely to be in the minority, are much less likely to cite social science data. “Certain members of the Court proved themselves to be demonstrably comfortable with the use of social science findings” (Abraham, 1998, p. 258). These justices are also more likely to write the majority decisions that have the greatest influence on the social, political, and legal development of American society. The United States’ legal system is relatively unique in the industrial world for its influence in regulating the private sector (Banks & O’Brien, 2008). For example, environmental law in the United States has emerged to a significant extent from civil litigation, not the legislative process (Abraham, 1998). Environmental groups have used the courts to pursue an environmental and conservationist agenda that will not or cannot be addressed by state legislatures, the executive, or Congress due to political schism and the influence of industry in the political system. The role of the judiciary as a regulator of industry reflects the distinction between civil and common law. Banks and O’Brien (2008) note the fact that the American legal system, originating in English common law, has certain characteristics, notably judicial review and an adversarial nature. These characteristics result in a judiciary that might be considered more influential in pushing social norms related to the level and nature of regulation of private industry. For example, the judicial review component of common law versus civil law means that the judiciary is called upon to resolve disputes, whereas civil law places the judiciary in the role of inquiry. “Civil law systems … are structured to arrive at legal truths under a written code” that reflects legislative intent rather than judicial interpretation (Banks & O’Brien, 2008). Indeed, this distinction is notable in the finding that “some European constitutional courts are now playing a more dynamic role in interpreting law and making social policy” (Banks & O’Brien, 2008, p. 13). This quotation implies the social policy function of the American judiciary as it regulates industry in response to emerging social norms. The adversarial nature of the American legal system also places the judiciary in the role of regulator.
Consumer-interest groups, environmentalist groups, and public-interest groups have routinely filed suit against corporations and government agencies considered lax in their interpretation of regulatory laws (Abraham, 1998). Civil litigation recognizes the value of adjudicating contested areas of commercial regulation rather than relying upon legislative action. Even though the courts interpret the law in part by attempting to identify legislative action, Abraham (1998) notes the fact that civil litigation decisions only rely on extra-legislative sources, including social science data and legal arguments in legal periodicals. Civil litigation thus reflects the complex and varied social interests, norms, values, and beliefs with a stake in industry practices.
Similarly, segregation and desegregation decisions by the judiciary have been largely influenced by civil litigation as a result of social and political schism and stalemate. The National Association for the Advancement of Colored People, the American Civil Liberties Union, and other civil-rights organizations have brought cases before the court that become the test cases that led to extraordinarily influential judicial decisions on social structures and norms. These organizations, as Abraham (1998) notes, are often outside the social and political mainstream when they bring civil …show more content…
litigation.
For example, Dr. Martin Luther King Jr. and the civil-rights movement emphasized the predominance of natural law versus existing laws of segregation in the American South. “This is law that would be binding on human societies in the absence of, or as a supplement to, positive law” (Abraham, 1998, p. 4). Judicial relief by the civil-rights movement sought to break the stagnant social and political mechanisms in the legislatures and executive offices at both the state and federal levels. Civil litigation by the civil-rights movement had to call upon the judiciary to do more than just uphold the existing laws but rather to examine them in light of emerging social norms of racial justice, norms that were emerging even as they were also being contested by social conservatives.
The notion of the judiciary in the role as regulator or private enterprise, particularly its negligent or predatory attributes, is firmly entrenched in the American consciousness. Legal non-fiction and films, including A Civil Action (Har, 1996), routinely depict story lines involving crusading attorneys fighting the injustices of corporations. The judiciary is often idealized as the provider of justice even as the institution is presented as susceptible to corporate influence and political corruption.
The failure of the executive and legislative to protect Americans from environmental harms caused by corporations is particularly prescient in literature such as A Civil Action ( Harr, 1996). In the book, the Environmental Protection Agency emerges as a force for environmental justice only after the crusading efforts of Jan Schlichtmann. Civil litigation prods the executive into eventually taking action, both as the result of actions by private parties and as a result of lawsuits filed by the EPA. This function of the judiciary reflects origins of common law in resolving disputes between the commons (the feudal term equivalent to the environment) and those who would spoil it (Abraham, 1998).
The common law role of the judiciary is essential to the role of the judiciary as the maker of social policy. This premise might seem negated by the role of common law as rooted in legal precedent, which would seem to be a conservative social force. If common law seeks to recognize legal precedent, how it can be a force of judicial activism in nudging social policy toward progress?
Abraham (1998) notes the paradoxical aspect of common law as both reliant on legal precedent and reflective of social trends.
“Often based on precedents, common law embodies continuity in that it binds the present with the past” (Abraham, 1998, p. 6). Common law is thus contingent, which means it is simultaneously emerging from what came previously yet also capable of producing something new. This ambiguity reflects the fluid nature of social reality itself.
Legal precedent recognizes the value of the past. Yet the judiciary is engaged in evaluating legal precedent as applied to contemporary cases. Inevitably, the role of common law in recognizing and altering precedent as applied to contemporary cases results in the creation of new precedents, which in turn will be evaluated in the future. Common law might be bound by general social principles in legal contexts, but it inevitably places the judiciary in the role of evaluating the continued relevance of those principles as new legal contexts emerge through civil
litigation.
The origins of common law reflect the judiciary’s longstanding role as the arbitrator of private disputes involving property rights, which can be conceptualized as the primary issue confronting government regulation of industry. Abraham (1998) notes the role of common law in the feudal structures characterized by disputes between propertied nobles and the monarchs. “Private rights of freemen were not subject to arbitrary change, and the primary task of the monarch was to preserve and protect the law” (Abraham, 1998, p. 7). The King’s Bench, Exchequer, and Common Pleas emerged as the courts of common law involved in resolving these disputes.
Similarly, the judiciary today is significantly involved in resolving disputes between government and corporations, which might be considered the contemporary counterparts of the monarchy and the propertied class of feudal times. Abraham (1998) notes the emergence of administrative agencies and courts that play significant roles in broadly interpreting the law and regulatory policy. The laws written by Congress related to environmental protection, for example, are too broad to provide easy-to-follow direction for regulatory agencies and corporations. The impact of the law on private sector activities and regulatory authority is constantly reviewed and interpreted by the judiciary.
An Integrated Theory of the Judiciary The data and findings from Abraham (1998), Banks and O’Brien (2008), and Slotnick (2005) should lead to an integrated conceptualization of the judiciary. This conceptualization should depart from the perspective of the judiciary as an ideologically, socially, and politically distinct institution. Indeed, the latter perspective conceptualizes the judiciary as a non-ideological, asocial, and apolitical institution. In fact, the integrated theory of the judiciary is supported by the legal scholarship. The functional perspective of the judiciary recognizes the institution’s reflection of and influencer of popular will. “The law will be respected as long as it is interpreted and applied within the structures of justice as accepted by the majority of society – in the long run, if not always in the short. Law is, after all, the expressed will of those who rule society” (Abraham, 1998, p. 1). However, this generalized statement belies the complexity and ambiguity of the judiciary’s role as an influence on popular will. As the rulings since Lawrence to this summer’s decisions on gay marriage illustrate, the judiciary appears to both reflect and nudge social policy in the direction of the trend. Critics of so-called judicial activism fail to recognize that the trend line is typically against their conservative agenda. The judiciary attempts to strike a balance between dual and paradoxical, but not contradictory, roles of public responsiveness and impartial legal interpretation. The use of social-science data, reference to Western European legal, social, and political trends, and citation of arguments from legal periodicals are just one set of evidence to prove the integrated nature of the judiciary. Moreover, the role of common law, evaluation of legal precedent, and the adversarial nature of the American legal system results in a judiciary that is constantly evaluating the relationship between government and industry. The feudal disputes between the monarchs and the private property rights of the aristocracy continue to be the focus of civil litigation filed by private parties, corporations, environmentalist groups, consumer groups, and public-interest groups. Indeed, the notion of how the commons should be protected by the monarch from private utilization continues to be the prevailing principle that is constantly adjudicated by the courts today. The integrated theory of the judiciary should be refined to account for fluctuations in social and political schism and resulting stagnation in legislative action. The level and nature of the judiciary’s influence as a social policymaker, arbitrator, and regulator should vary depending on levels and natures of political stagnation. For example, during times of strong political stagnation, there should be relatively minimal legislative action. Indeed, the current state of political stagnation in Congress today has resulted in the lowest number of new legislation ever recorded in its history (Raju, 2013). “Indeed, the 113th Congress is on track to go down as the least productive in history” (Raju, 2013, p. 1). One should predict that the judiciary should become more integrated and less distinct as an institution during such a period of political and legislative stagnation. The judiciary will increasingly be called upon to resolve social and political disputes, ranging from issues as disparate as industry regulation and gay rights. Simultaneously, accusations of judicial activism and resentment by those stakeholders on the losing end of judicial decisions will also show an increase. Abraham (1998) notes the occasional response by the legislative to respond to real or perceived judicial activism on social policy by issuing resistant laws. Certainly, the responses by some conservative state legislatures to the rulings on gay rights have confirmed this finding. However, if judicial decisions tend to lean toward the trend line of social norms and values, one should predict that these efforts will only represent short-term resistance, and the Supreme Court’s decisions this summer on gay marriage will be reinforced by increased expansion rights among the states. The integrated theory of the judiciary requires one to take a long-term view of its role in social progress. The judiciary should be expected to at times reflect popular opinion and at other times nudge it forward. This dynamic will result in legal decisions that are at times conservative and other times progressive. However, the long-term view of the judiciary will recognize a general reflection of popular will.
References
Abraham, H.J. (1998). The judicial process. New York: Oxford University Press.
Banks, C. & O’Brien, D.M. (2008). Courts and judicial policymaking. New York:
Pearson/Prentice Hall.
Harr, J. (1996). Civil Action. New York: Vintage Books.
Raju, M. (2013, November 22). The (really) do-nothing Congress. Politico. Retrieved from http://www.politico.com/story/2013/11/the-do-nothing-congress-100274.html. Slotnick, E. (2005). Judicial politics: Readings from judicature. Washington, D.C.: CQ Press.