The study finds evidence of political behavior by judges appointed under Article III of the U.S. Constitution — but perhaps not as distressing as fears of “politicians in robes”

By Sarah Steimer

Researchers have made efforts to test the Politicized Departure Hypothesis (PDH), which suggests a tendency for federal judges to retire under presidents of the same political party as the president who first appointed them, giving that party the right to nominate their successors. The hypothesis is key for asserting judges’ political party agency, but it’s hard to test that claim because retirement timing has so many other causes — some of which may be unknown, and data on some may be unavailable. However, a new paper, published in American Sociological Review, uses “natural experiments” to sidestep these problems in testing for political behavior by Article III judges.

Lead author Ross M. Stolzenberg, professor in the Department of Sociology at The University of Chicago, previously studied causes and effects of retirement by Supreme Court justices, which he says turned his attention to the limitations of previous analyses, the need to test for politicized behavior in the entire federal judiciary, and research methods that use naturally occurring data to emulate scientific experiments.

Controversial court rulings over abortion rights, gun control, and voting rights also suggested that empirical evidence on politicized judicial behavior could be especially valuable input for policy and political debates. “If legal decisions are made politically, by judges who are not subject to electoral review, I think that people who dislike those decisions will see them as unfair, and the judges who make them as illegitimate and unworthy of respect,” Stolzenberg says. “It’s hard to convince people to stop fighting over political decisions they see as unfair and made by illegitimate powers who are contemptible.” Courts are supposed to bring fights to an end, not to perpetuate them, he adds.

He also underscored the importance of the research because PDH implies that the federal judiciary is a self-replicating system in which past judges influenced the selection of current judges, current judges will influence the selection of future judges, and so-on. If judges act politically to select the political party of their successors, we end up with a self-replicating, politicized judiciary.

It’s difficult to test for politicized judicial behavior using commonplace statistical methods. Court cases vary widely; judges conceal their political views; and complex cases are decided in district courts ruled by a single judge. And retirement-related characteristics of judges — such as their health and family matters — are often unknown. The reality, Stolzenberg says, is that we have to find some judicial behavior that can be used to indicate political influence. “We have to find a statistical method that controls for the ‘other things’ that obscure our vision of politicized behavior, even if we are not sure of what those other things are, and even if we lack data on those things.”

Stolzenberg’s paper focuses on this problem, and his team used regression discontinuity to identify situations in which actually occurring events mimic a scientific experiment designed to measure the presence of PDH effects. Such a pseudo-experiment happens in periods shortly before and after elections in which a U.S. president of one political party is replaced by the opposing party’s candidate.

If these periods in question are short, retirement-related characteristics of judges change little or not at all, Stolzenberg says, allowing researchers to compare — for example — retirements by Democratic appointees when the sitting president is a Republican to retirements by those same Democratic appointees in the close-by period when the president is a Democrat. PDH implies that retirement rates are higher after the new Democratic president is inaugurated, compared with before the election. In an experiment replayed 11 times, the researchers compared retirements of judges before the election to retirements of those same judges after the subsequent inauguration, with no further controls for individual characteristics of judges needed.

“If it is apparent that judicial careers are politically vetted at their start, and if sharp regression discontinuity analysis of objective data indicates that judges tend to act politically at career end, then we think there is reason to believe that politics has been an active influence on many of these judges in the interim,” Stolzenberg says.

He goes on to say that the team did not find that all Article III judges act politically in timing their retirements, and they neither looked for nor found direct evidence of politicized behavior in the courtroom. “But we do find evidence of political judicial behavior by Article III judges,” he notes. “I find this a distressing finding, but not as distressing as Justice Roberts’s fears that these judges might be perceived as politicians in robes.”