Are Judges Political?

An Empirical Analysis of the Federal Judiciary

Americans are engaged in an intense debate about their judicial branch of government. Some people worry about "activist" judges who are "legislating from the bench," making an end run around electoral democracy, while others feel that the judiciary is properly protecting fundamental rights. How do the political leanings of judges affect their activity on the bench? To put it another way, Are Judges Political? And to what degree? This provocative book produces real answers by looking at what judges actually do, injecting fact and analysis into a discussion that is all too often overwhelmed by sound bites and ideological howling.

Renowned legal analyst Cass R. Sunstein (, management scholar David Schkade, attorney Lisa Ellman, and judicial clerk Andres Sawicki examine thousands of judicial votes to analyze the influence of ideology on judicial decisions. Focusing principally on the federal courts of appeal, where judgments are made by a panel of three politically appointed judges, the authors scrutinize decisions on some of the most controversial issues in American law and politics. They look at controversial, sometimes polarizing issues—abortion, affirmative action, campaign finance regulation, disability discrimination, environmental protection, and gay rights. They focus on these key questions: Do judges appointed by Republican presidents consistently vote differently from their colleagues who were appointed by a Democrat? When are those differences most stark and predictable? And to what degree are judicial votes affected by the ideological leanings of other judges on the same panel? For example, do judges who find themselves a minority of one behave differently than those who hold either a 2-1 or 3-0 edge?

Are Judges Political? injects precision into an impassioned but often impressionistic discussion by quantifying how ideology affects legal judgments. Interestingly, even in the most controversial cases, Republican and Democratic appointees agree more than they disagree. When they do disagree, however, the analysis of who votes how (and under what circumstances) can be quite illuminating and tells us a great deal about human nature as well as politics and justice in America. Are Judges Political? finds that judges do adhere to the law, but where the law is not plain, political convictions clearly play a role. And when like-minded judges sit together, they may well go to extremes.