Political Ideology and the Judicial Process The Resurrection of (original) (raw)
Political trials and the social construction of deviance
Qualitative Sociology, 1984
In the 1960s and early" 1970s deviance research, especially in the labeling perspective, was concerned with the question of how individuals or groups become defined as deviant. Since then, the political analysis of deviance has come to ask the more fundamental question of how deviance becomes constructed through political processes. A political trial is one particularly transparent situation in which narrower political processes for imputing deviance elicit more fundamental interpretations of political modes of deviance construction. In order to explore the workings of the deviance construction process, the present study examines the two defense strategies employed on behalf of the defendants in the trial of the Chicago 15, a group of thirteen men and two women who destroyed selective service files on the south side of Chicago in May, 1969. The first strategy is the previously studied "motivation defense," wherein the moral righteousness of the defendants' purpose is pleaded as cause for their exculpation. The second is the unique "cultural insanity defense," which asserts t h a t the defendants were so profoundly deluded in their moral indictment of the government that the jury should return a verdict of culturally insane rather than criminally guilty. The first section of the paper summarizes the circumstances of the trial. The second and third sections analyze each of the two defense strategies, focusing on their legal and political logic and on the prosecution counter-strategies they engendered. The final section indicates a number of theoretical implications for the further development of the political model of political trials and of deviance construction in society at large.
Law and Critique, 2021
Normative theories of law conceive the courtroom as a geometrically delineated, politically neutral, and linguistically transparent space designed for a fair and orderly administration of justice. The trial, the most legalistic of all legal acts, is widely regarded as a site of truth and justice elevated above and beyond the expediency of ideology and politics. These conceptions are further underpinned by certain normative understandings of sovereignty, the subject, and politics where sovereignty is conceived as self-instituting and self-limiting; the subject is understood as an autonomous and rational being capable of self-consciousness and self-representation; and politics is posited as the exercise of reason in the public sphere. In this article, I argue that such a normative conceptualization of the criminal trial and the courtroom not only ignores structures of power and privilege that produce inequalities but also forecloses possibilities for transformative judicial praxis. Dr...
Punishing Political Offenders: The Effect of Political Motive on Federal Sentencing Decisions*
Criminology, 1996
Although political motive is frequently avoided as an issue in the prosecution of terrorists, previous research indicates that these offenders consistently receive longer sentences than nonterrorists convicted of similar offenses (Smith, 1994). This study assesses the ability of three theoretical models (consensus, conflict, and structural-contextual) to explain these differences in sentencing patterns. Data on terrorists (N = 95), provided by the Federal Bureau of Investigation, the Administrative Ofice of the U.S. Courts, and the U.S. Sentencing Commission, is matched with data on a sample of similarly convicted nonterrorists from the Federal Court Cases Integrated Data Base, 1970-1991 (N = 403). Controlling for a number of demographic and sentencing-related variables, the results indicate that the oficial label of "terrorist" is not only a significant predictor of sentence length, but emerges as the dominant explanatory variable in the analysis. The results provide general support for both consensus and conflict hypotheses, but only partial support for structural-contextual theory. The findings also raise procedural questions regarding the extensive variation in sentencing between similarly situated defendants when political motive is used as a primary criterion for sentence enhancements.
Law and Critique, 2022
The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe's agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decisionmaking. Mouffe's concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature-juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of ongoing collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a 'relative sovereignty', being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not 'apply itself' on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe's theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.
All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law
This paper contains the introduction to the new book, All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (Stanford University Press, 2010). The book begins with the observation that Americans are divided in their beliefs about whether courts operate on the basis of unbiased legal principle or of political interest. This division in public opinion in turn breeds suspicion that judges do not actually mean what they say, that judicial professions of impartiality are just fig leaves used to hide the pursuit of partisan purposes. Comparing law to the practice of common courtesy, the book explains how our courts not only survive under such suspicions of hypocrisy, but actually depend on them. Law, like courtesy, furnishes a means of getting along: it frames disputes in collectively acceptable ways, and it is a habitual practice, drummed into the minds of citizens by popular culture and formal institutions. The rule of law, understood as the rules of etiquette, is neither particularly fair nor free of paradoxical tensions, but it endures. Although pervasive public skepticism raises fears of judicial crisis and institutional collapse, such skepticism is also an expression of how our legal system ordinarily functions.
Making Sense of Political Trials: Causes and Categories
Munk Centre for International Studies Occasional Paper Series, 2008
Political trials have been common in history, and have taken place in both consolidated democracies that respect the rule of law as well as authoritarian regimes. As concentrated legal narratives and expressions of political activity, such trials are neither entirely pejorative nor positive. They are microcosms of a specific political and cultural universe they seek to represent in concentrated legal form, and knowledge of context and the facts of each articular case are paramount. How then can such trials be analyzed and compared? The essay examines the current literature on political trials and argues against a single all-encompassing definition or typology in favour of a non-determinative list of criteria that illustrate how and under what conditions justice is politicized. Such a nuanced understanding of the range and type of factors that politicize trials is important because parallels between the Cold War and the current Global War on Terror indicate that such trials are not a feature of the remote past. Interpreting and applying the criteria suggested here would be helpful in order to recognize the processes of politicization, the didactic value of trials, particularly in situations of political transition.
Ad Americam, 2013
Most scholars conducting research on the U.S. presidency analyze a particular presidency, ranking the ideology and political role of the chief executive, his rhetoric, interior policy program, foreign policy activity, and impact on the economy, as well as the role of the president as national commander of the armed forces. My main field of research is not the presidency, but the American judiciary. However, careful analysis of the theoretical and practical aspects of the functioning of American courts, and especially the U.S. Supreme Court, reveals the enormous impact of presidents on justice. Presidents nominate judges (and Supreme Court Justices), they may determine the scope of legal briefs presented in cases where the government is the party, and they can influence governmental participation as amicus curiae before the Court, which has become a vital tool of the United States in recent years. The growing political role of the Supreme Court, its enormous activity in applying judicial review, and its high position within the U.S. governmental structure have not only caused changes to the checks-and-balances system, but, above all, have resulted in the increased political activity of various presidents towards the tribunal. As a result, many chief executives consider their 'judicial policy' as one of the most important elements of their legacy. From this perspective, we may rank presidents who had the greatest (or the least) impact on the membership and operation of the Court (i.e. Washington, F.D.R., Lincoln versus Taylor, Harrison, Carter), as well as presidents who were willing to impose 1 This article was presented during the international conference Ranking American Presidents held at Northumbria University, Newcastle, on February 23 rd , 2012. Its methodology and substance regarding the nomination process to the Supreme Court of the United States is based on the author's own research, which is described in his book Sąd Najwyższy Stanów Zjednoczonych Ameryki: od prawa do polityki. Krakow: Wydawnictwo Uniwersytetu Jagiellońskiego, 2011.
Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation
Virginia Law Review, 2004
For many decades, the United States has been conducting an extraordinary natural experiment: Randomly assigned three-judge panels on courts of appeals produce extensive evidence of the effect of judicial ideology on judges' votes. If the political party of the appointing president is treated as a rough proxy for ideology, then it becomes possible to test three hypotheses: (a) a judge's votes, in ideologically contested areas, can be predicted by the party of the appointing president; (b) a judge's ideological tendency, in such areas, will be amplified if the panel has two other judges appointed by an appointing president of the same political party; and (c) a judge's ideological tendency, in such areas, will be dampened if the panel has no other judge appointed by an appointing president of the same political party. All three hypotheses are confirmed in many areas, including affirmative action, campaign finance, sex discrimination, sexual harassment, piercing the corporate veil, disability discrimination, race discrimination, and review of environmental regulations. An important implication is that panel composition has a strong effect on likely outcomes, thus creating extremely serious problems for the rule of law. Taken as a whole, the evidence suggests that judges frequently issue collegial concurrences, that is, concurrences produced by the unanimous views of the other judges on the panel, and that judges are subject to group polarization, by which groups of like-minded people go to extremes. Notably, all three hypotheses are rejected in the areas of federalism, criminal appeals, and takings of private property, because Republican and Democratic appointees vote essentially alike. In the areas of abortion and capital punishment, the first hypothesis is confirmed, but the second and third are rejected, because judges vote their convictions, and are not affected by the composition of the panel. Disaggregating the data by circuit allows courts of appeals to be ranked along an ideological spectrum; it also shows striking differences between Republican appointees and Democratic appointees on different circuits. Normative implications are briefly explored.
Political influence over Supreme Court criminal procedure cases
Journal of Economic Behavior & Organization, 1998
In sharp contrast with much recent work in the area of positive political economy, much of the analysis of U.S. Supreme Court decision making has excluded political changes as possible factors influencing Court rulings. In this essay, we analyze Supreme Court voting on criminal procedure cases for the years 1953±1993 and find evidence of significant Presidential and Congressional impact on Court behavior. We argue that this provides evidence against the conventional wisdom that the Court is an autonomous decision-making body.
Politics as a Legal Category. A Few Considerations on the Limits of Public Law Adjudication
Studia Politica. Romanian Political Science Review, 2006
Public Law and Politics "The lawyer scholar is still a lawyer. Lawyers are, ought to be, and must be, defenders of courts. Courts rely for their institutional legitimacy on their reputations for independence and neutrality. If courts are political that fact needs to be hidden by the judges themselves and by those who are dependent on courts.