I was intrigued by the opening lines of today’s stern lecture from the anonymous NY Times editorial board:
The furiously contested election of a Wisconsin Supreme Court justice shows, once again, how politics and money can debase the law.
Intrigued because the Times is conflating politics with money in terms of how it can debase the law. The implication is that they think “politics” is just as bad as corruption, at least when it comes to judicial decision making. The remainder of the editorial is a discussion of the Wisconsin election, but the twin ‘problems’ of money and political influence are interspersed. Mostly money, but in the context of “special interest” contributions from politically-minded groups; but then at the end of the editorial, this:
The heavy spending predates this year’s heated battle, and the once collegial court has become increasingly fractured along political lines…
Upholding the Impartial Justice Act, a federal trial judge quoted Alexander Hamilton as saying that “the complete independence of the courts of justice is peculiarly essential” to democracy, as a check on the political branches. A merit panel should pick the state’s justices.
I don’t know if that claim–that it’s fundamentally wrong and unconstitutional for justices to have political motives–is right. It seems to contradict the empirical research on the federal Supreme Court, which I mentioned in an earlier post. Normatively, however, it might also just be a confusing position. On one hand, the Times is saying it’s wrong for the justices to have political motives. But on the other hand, they are saying that it’s wrong for them to accept contributions from other parties with political motives. Now, if both events are occurring–justices have political motives, and donors give with political motives–then my guess is that the justices would just take the money and act in the interest of their own underlying political motives anyway.
In a different world, where justices have no “ideological” motives, but donors do, that could be a problem. Or vice versa: if donors just wanted to “extract rents”, as the economists say, but politicians had political motives, then that could lead to problems. But if everyone is motivated by politics, it seems to lessen these concerns. As does having judges be directly elected. Since I believe Segal and Spaeth (see the previous post linked to above) when they say judges (like everyone else) are motivated by politics, it might not be so bad if they take into account what voters want. But that’s an empirical question, one that the Times’ failure to distinguish economic and political influence prevents us from answering.
So what are the causal questions here? My title suggests that it’s the effect of “politics” on “justice.” Political science research says, justice is politics, at least when it comes to how judges make decisions. A better question is how to get “good” policy outcomes when it comes to the judiciary. The editorial is nice in that it sort of asks this question, but I don’t see it as really helping to answer it.