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chapter 15

..............................................................

THE JUDICIARY AND

THE ROLE OF LAW

..............................................................

mathew d. mC cubbins

daniel b. rodriguez

1 Introduction

.............................................................................

Positive Political Theory (PPT) aﬀords a fresh perspective on how we understand

the courts and judicial behavior. Traditional legal analysis of law and politics makes

two critical assumptions: ﬁrst, it studies the courts in isolation; second, it interprets

judges as acting last in the policy-making process; that is, at the end of a series of

steps by Congress, the president, or the bureaucracy that conclude with a judicial

determination. From this perspective, judges appear to be unconstrained by external

forces. The only source of constraint is the rule of law itself, manifested in precedent,

stare decisis, and control by judges higher up the chain of command. Hence, the

traditional view assumes the law, courts, and judicial behavior are the only factors

relevant for explaining what judges do and how they decide cases.

Although traditional scholars always knew that other political actors were impor-

tant, they saw episodes of political inﬂuence as isolated rather than systematic. It is

a commonplace in the literature on early American constitutional law, for example,

to note that political factors underlay the Supreme Court’s decision in Marbury v.

Madison (1803) and, perhaps even more explicitly, in the controversy over President

Franklin D. Roosevelt’s court-packing scheme of the 1930s. However, these stories are

powerfully resonant in traditional constitutional law discourse precisely because they

are viewed as exceptional, as representing those rare instances in which rule of law

values were trumped by political (read: sinister) forces.

274 the judiciary and the role of law

The PPT approach to studying law denies both of these assumptions. Instead, this

approach embeds the courts in a political system where judges are constrained in

their decision-making; and second, it shows that, except for constitutional cases, the

court does not act last but acts in the middle of a highly interactive process. With

respect to administrative law or statutory interpretation cases, for example, Congress

can always overturn a judicial ruling. This implies that, if judges believe it is costly to

be overturned, they will act strategically so as to avoid being overturned. In short, the

political process constrains the types of decisions judges can make.

Because judges act in the middle of a political process and are not the endpoint,

they must act strategically to get what they want. That is, judges must anticipate how

other political actors will react and must take these reactions into account.

This chapter proceeds as follows: in the second section, we discuss the implications

of our approach for issues in statutory interpretation. The third section discusses the

relationship between political and legal controls of bureaucracy. The fourth section

draws the implications for judicial independence within the larger separation-of-

powers system.

2 Statutory Interpretation

.............................................................................

Legal scholars view statutory interpretation as a process by which courts discern

the meaning of ambiguous legislative language through various approaches and

techniques (Eskridge, Frickey, and Garrett 2001). The principal disagreement in the

large literature on interpretation is whether and in what circumstances courts ought

to use extrinsic aids beyond the legislative text, such as legislative history and interpre-

tative canons, to reconstruct the meaning of statutes where this meaning is in dispute

(McCubbins and Rodriguez 2006). Ordinarily, this normative debate is divorced from

positive theories of legislation or of the interpretative process.

By contrast, positive political theory has contributed uniquely to these debates

by articulating a theory of court–Congress relations and statutory interpretation.

Armed with this positive theory, scholars can more fruitfully assess the political

dimensions of interpretation and, as well, the impact of one or another prescription

on the dynamics of legislative politics and judicial performance. One fundamental

insight of positive political theory is that courts act strategically when they inter-

pret statutes (Ferejohn and Weingast 1992a). In particular, courts are constrained

in their interpretative choices by the possibility that Congress will overturn their

decisions.

Consider the spatial model shown in Figure 15.1, where J is the judge’s most

preferred position, P the president’s, and C Congress’s (we assume, for simplicity,

that C represents the median voter within that body): For the purposes of this model,

we assume that Congress and the president have acted to produce a law. A dispute

over the law’s meaning has ended up before a court and the judge must interpret

mathew d. mC cubbins & daniel b. rodriguez 275

----------x------------x------x------x-----------

JPLC

Fig. 15.1 Political constraints on interpretation

the statute in order to determine what the legislation means. After the court makes

its decision, Congress and the president have an opportunity to pass legislation

overturning the judicial decision. Critically, the court knows when it interprets the

statute that Congress and the president can react by overturning its decision.

Suppose that the court acts in accordance with its own preferences and tries to

impose policy J. Insofar as J is to the left of both of their preferences, Congress and

the president will react. Because each prefers a range of policies to J, they will pass

legislation overturning the court’s decision; this legislation will reﬂect a compromise

between their most preferred points of P and C respectively. We call this compromise

legislation L.

If, on the other hand, the court interprets the statute to implement policy P, then

this policy is an equilibrium. That is, since there is no policy that the president prefers

to P, no legislation can pass to overturn the court’s decision. By acting strategically,

the court has not only forestalled a legislative overturning of its decision, but it has

obtained a better ﬁnal policy outcome—P—than if it had originally decided the case

at its ideal J—which would have yielded policy outcome L.

As Brian Marks (1988) and other scholars following in the PPT tradition have

explained,

the diﬃculty in passing new legislation implies that courts may im-

plement a policy inconsistent with legislative preferences; that is, the courts may

reinterpret legislation away from its original intention in a manner that the president

and Congress cannot overcome. Because Congress and the president disagree about

policy, the courts can choose any interpretation in between P and C without fear of

having their decision overruled (McNollgast 1994, 1992; Eskridge and Ferejohn 1992;

Gely and Spiller 1992).

A signiﬁcant positive conclusion for the debate over statutory interpretation fol-

lows from this analysis: statutory interpretations may well depart from the original

preferences of the enacting Congress and the president, but, because of the “indus-

trial organization of Congress” and the ability of key legislators to entrench their

preferences through rules and institutions, the current legislature may be unable to

overturn interpretations that pry the statute loose from its original meaning.

McNollgast (1994, 1992) and Rodriguez and Weingast (2006a, 2003)providea

PPT framework for understanding the determination of statutory interpretation

decisions. Their approach reveals the mechanisms by which courts strategically use

pieces of legislative history in order to reconstruct the original statutory bargain

among pivotal legislators and thereby to expand the scope of the statute. First, they

¹ See Eskridge and Ferejohn 1992 for a survey of the literature.

276 the judiciary and the role of law

model the statutory enactment process by focusing on three coalitions of legislators—

ardent supporters (legislators who want a broad, expansive law), ardent opponents

(legislators who want to preserve the status quo), and pivotal or moderates (legislators

who are willing to support a moderate version of the legislation, but not an expansive

one)—each operating with their own agendas and interests.

Because their support is necessary to produce legislation, pivotal legislators in-

ﬂuence the outcome of the ﬁnal legislation in signiﬁcant ways. Their compromise

versionofthelegislationdiﬀers from the ardent supporters’ original proposal in ways

that make it more palatable to the moderates.

Nonetheless, ardent supporters remain committed to a more expansive policy and

often undertake eﬀorts to move policy in a more progressive direction ex post.One

way to do this is to insert into the legislative record the sort of legislative “history” that

supports an expansionist reading. The advantage of this strategy arises when courts

are interested in proﬀering an expansionist policy, as many were in the late 1960s

and early 1970s. Such courts will grasp onto these strategically motivated statements

and use them to justify their expansionist readings. As a consequence, these judicial

determinations replace the legislative bargain, which represents the calculated eﬀorts

of pivotal moderate legislators, with a version of the legislation supported by ardent

supporters and sympathetic courts.

Rodriguez and Weingast (2003) have described this process through an extended

analysis of the passage of the watershed Civil Rights Act of 1964 and its subsequent

interpretation by liberal federal courts of the 1970sand1980s. In 1964,supportersof

astrongcivilrightsbilllackedsuﬃcient support in Congress to convert their vision

into national law. Despite their success in clearing the signiﬁcant hurdles in the House

of Representatives, civil rights proponents faced the powerful threat of the Southern

ﬁlibuster in the Senate and thereby the same fate that had befallen one hundred years’

worth of civil rights legislation.

The solution to this impasse, as Rodriguez and Weingast explain, lay in the

willingness of pivotal moderates within the Republican Party and its congressional

leadership to consider supporting a carefully drafted legislative compromise. Once

in the hands of the courts, however, judges unraveled the bargain struck by the

coalitions of ardent supporters and moderates. Courts rewrote the statute by sub-

stituting more expansionist interpretations for moderate language and structure.

Moreover, even where these interpretations departed from the preferences of the

members of Congress serving at the time these decisions were rendered, the insti-

tutional impediments described above made it extremely diﬃcult for Congress to

correct these “mistaken” interpretations. As Eskridge (1991) demonstrates, Congress

was unable to overturn the judicial rulings to restore the original bargain.

Thus,

the political dynamics of legislative policy-making, as well the dynamics of court–

Congress relations, reinforces the PPT insight that strategic legislators inﬂuence the

² Indeed, Eskridge 1991 further argues that the conservative Burger Court made these expansionary

readings to forestall even stronger new civil rights legislation from the more liberal Congresses of the

1970s.

mathew d. mC cubbins & daniel b. rodriguez 277

scope and direction of public policy through their attentiveness to the processes of

statutory interpretation.

The previous discussion shows how courts interact with the political branches and

aﬀect policy. Clearly, justices can alter policy. But because their (non-constitutional)

decisions can be overturned by Congress, courts must act strategically to further their

goals. If, for example, courts begin to take an activist role, then they can—for a time at

least—expand the meaning of recently passed legislation. This activism has a critical

feedback eﬀect, however, in that expansionist courts in eﬀect tell the moderates in

Congress that the compromises necessary to get them to sign on to legislation are

precarious; the court may well replace these compromises with an expansive reading.

Expansionary judicial behavior therefore forces the moderates to choose between the

status quo and the stronger bill, even when their moderate compromise has been

crafted in Congress. In many cases, they will choose the status quo. This analysis

suggests that judicial activism/expansionary readings make new progressive legisla-

tion less likely (Rodriguez and Weingast 2003, 2006a). There is a trade-oﬀ; therefore,

courts must consider their eﬀect not only on the reading of existing statutes, but on

the process of producing new statutes.

A ﬁnal conclusion is normative: If one of the goals of statutory interpretation is

to help create ﬁdelity to the legislative process deﬁned by the Constitution, then the

courts should refrain from expansionary readings. The better approach to interpret-

ing statutes is one in which courts use available techniques to respect the will of

Congress, as expressed by the compromise between the ardent supporters and the

moderates. This approach is more consistent with constitutional values, with the

avowed intent of the communicator, and with the cause of legislative supremacy and

progressive law-making (Boudreau, McCubbins, and Rodriguez 2005; McCubbins

and Rodriguez 2006).

3 Legal Control of the Bureaucracy

.............................................................................

Courts play a signiﬁcant role in controlling the bureaucracy. They do so through

three principal mechanisms: (1)administrativeprocedure,(2) constitutional review

of agency decision-making, and (3) administrative law through the so-called “hard

look” review. The traditional view of legal scholars is that courts’ primary function

with regard to the bureaucracy and policy process is keeping agencies away from poli-

tics and safeguarding norms of procedural fairness and administrative reasonableness

in the face of ubiquitous political pressure and inﬂuence (Merrill 1997;Stewart1975).

PPT scholars have revisited this assumption and have developed a vein of scholarship

³ See also Rodriguez 1992 who discusses how legislators can aﬀect statutory interpretation process

through ex ante mechanisms.

278 the judiciary and the role of law

that emphasizes the ways in which courts reinforce strategies of political control

through their various judicial doctrines and techniques.

Administrative procedural review is the most typical way by which courts super-

vise the bureaucratic process. This review includes enforcing the procedural rules

established by statute and administrative regulation and also through judicially cre-

ated procedural guidelines. Through the creation and enforcement of administrative

procedures, the courts also play a role in the political control of the bureaucracy

(Spiller 1996; Ferejohn and Shipan 1990). For ex post controls, such as ﬁre alarms,

to succeed as a tool for controlling the bureaucracy, they must be credible (Lupia and

McCubbins 1998). The creation of credible ﬁre alarms involves establishing appropri-

ate procedures for managing the collection and dissemination of information about

an agency’s activities (McNollgast 1987, 1989).

3.1 Implications of the Administrative Procedure Act

TheUSAdministrativeProcedureActof1946 (APA), as interpreted by the courts,

establishes several provisions facilitating political control of agency decision-making:

First, an agency cannot announce a new policy without providing notice of a change.

Second, agencies must solicit comments allowing interested parties to state their

views. These notice and comment provisions ensure that the agency discovers the

relevant political interests and the political costs and beneﬁts associated with various

actions.

Third, agencies must allow interested parties to participate in the decision-

making process to the extent speciﬁed in the organic statute creating the agency

(McCubbins and Page 1986). If hearings are held, interested parties may present

evidence and cross-examine witnesses, and rules against ex parte communications

protect against the possibility of secret deals between agencies and constituent groups.

Because participation in the administrative process is costly, it allows leaders to gauge

the level of involvement of interested parties (Noll 1971). Fourth, agencies must

provide a rational link between the evidence received from interested parties and

the ﬁnal agency policy decision. Fifth, agencies must make a record of the ﬁnal vote

of each member in the proceeding available for review. The entire decision-making

process provides political leaders with numerous opportunities to respond when an

agency seeks to move in a direction which diverges from leaders’ preferences. Many

countries have adopted measures similar to the American APA to achieve political

control of the bureaucracy (Spiller 1996).

⁴ For a survey of this literature, see Rodriguez 1994, 91–105.

⁵ Although not all groups with political interests at stake will participate in the notice and comment

process, failure to participate signals that these non-participating actors are less likely to become a

signiﬁcant electoral force in the future.

⁶ In addition to ensuring agency compliance with the APA, courts apply procedural rules embodied

in the organic statutes creating and regulating the agencies and also in procedural regulations adopted by

the agencies themselves. These rules reﬂect the same legislative interests manifest in the APA, in that they

facilitate legislative control, while also subserving other critical values such as procedural fairness,

regularity, and regulatory eﬃcacy (Edley 1990). The PPT approach to administrative procedures does

mathew d. mC cubbins & daniel b. rodriguez 279

What these various forms of procedural rules have in common is that they have

profound political implications. As noted, ﬁre alarms need to be credible to work.

This means that congressional constituents must have access to agency proceedings

and information. It also means that agencies cannot plot in secrecy, against either

Congress or its constituents. Moreover, these procedures also facilitate Congress’s

ex post enforcement mechanisms. Congress cannot know all about what every agency

does. Yet, when their attention is needed, these procedures ensure that all politically

relevant information is available to them. These procedures reveal: who are the rele-

vant parties, what are the interests, what they want, and how much do they care about

it. The procedures also reveal the various policy options. Of course, if Congress had to

focus on all this information for each agency, they would fail. But the ability to bring

their attention to any given agency if necessary grants agencies ex ante incentives to

avoid being put in the “ex post” hot seat by serving congressional interests in the ﬁrst

place.

Critically, these structural and procedural constraints have their eﬀect only if

courts enforce them. One key piece of evidence that courts can be expected to enforce

these constraints and thereby facilitate legislative interests is that legislatures typically

delegate enforcement of administrative procedures to courts (McNollgast 1987). The

reasons for this delegation are not diﬃcult to fathom: Reliable judicial enforcement

increases the likelihood that the agency’s choice will mirror political preferences

without the need for political oversight (McCubbins and Schwartz 1984).

While the discussion thus far has focused on administrative procedure and the

courts’ role in supervising the bureaucracy through procedural review, courts have

available to them two other important mechanisms of control. First, courts may

invalidate agency action on the grounds that such action violates the US Constitution.

Constitutional review is a draconian device that, when implemented, constricts the

actions of both the agencies and the legislature. Despite well-known instances of

the courts’ use of procedural due process to restrain agencies and Congress, the

due process “revolution” portended by administrative law scholars of the 1970sand

1980s never came to pass; rather, courts have only seldom invoked the trump of

procedural due process, instead relying on other techniques of control to supervise

the bureaucracy (Rodriguez and Weingast 2006b). PPT provides a compelling expla-

nation for this strategy: Courts are more likely to control agencies in order to carry

out legislative preferences and interests than to implement trans-statutory values

through constitutional rules. Non-constitutional review strikes a balance, from the

perspective of the courts, between the political imperatives of bureaucratic control

and the values underlying procedural fairness as implemented by the courts.

Second, courts may invalidate agency action on the grounds that such action is

“arbitrary” or “capricious” or, in the case of formal agency proceedings, is unsup-

ported by the evidence taken as a whole. Since at least the early 1970s, the courts

have been employing these standards to give agency decisions a so-called “hard

not draw a bright line distinction between these twin functions of procedural rules. They can be viewed

proﬁtably as serving both political interests and broad “procedural justice” goals.

280 the judiciary and the role of law

look;” and this mechanism of review has been described by scholars as enforcing a

requirement that agency decisions be substantively “reasonable” (Shapiro 1988). The

courts’ sensitivity to the political dimensions of judicial control can be seen in the

ways in which they practice this “hard look” review. PPT scholars have explained how

hard look review in administrative law is, by contrast to the traditional view among

legal scholars, politically sophisticated.

3.2 The Chevron Decision

To suggest how the courts are embedded within the political system and use their

jurisprudential decisions to further political goals, we discuss the Chevron puzzle,

ﬁrst articulated by Cohen and Spitzer (1994). In Chevron v. Natural Resources Defense

Council (1984), the Supreme Court ruled that courts were to defer to agency interpre-

tations of the statutes they administer unless Congress had directly spoken to the issue

and the agency interpretation contradicted Congress’s expressed wish or unless the

agency’s decision was “unreasonable.” The puzzle is why the Supreme Court should

announce a doctrine that seemed to limit the courts’ role in agency decision-making.

Cohen and Spitzer’s resolution of the puzzle concerns the political conﬁguration

across American national institutions that held at the time of Chevron, namely,

Congress, the presidency, the judiciary, and the bureaucracy. By the mid-1980s,

President Ronald Reagan was in command of the presidency and had peopled the

bureaucracy with a wide range of conservatives whose views contrasted with the

more progressive views in Congress and the bureaucracy throughout the late 1960s

and 1970s. Republicans had also recaptured the Senate in 1980 and held it in the next

congressional election, making this institution considerably more conservative than

in previous years. By 1984, the Supreme Court also had a conservative cast. The lower

courts, however, remained largely appointees of the Democrats and therefore more

liberal.

Though Reagan oﬃcials throughout the bureaucracy began cutting back on regu-

lation, many lower courts prevented this change in approach. The issues in Chevron

were a case in point: The DC Circuit overturned an Environmental Protection Agency

decision, which would have permitted the use of a market-like mechanism for the

control of air pollution. In overruling the lower court’s decision and announcing a

rule that would instruct courts to defer to agencies’ interpretative judgements, the

Supreme Court furthered the Republicans’ agenda, thus allowing Reagan oﬃcials in

the bureaucracy to alter a wide range of public policies. The limitation imposed on

courts is rational, in this argument, because it helped the Supreme Court limit the

lower courts’ ability to forestall conservative-motivated policy change.

The main conclusion reached by the PPT approach to studying the political and

legal controls of the bureaucracy is that these two dimensions of control are both

⁷ See, e.g., McNollgast 1989, 1987. While this seminal work focused on the role of ex ante procedural

rules and structures, more recent work focuses on the role of the courts. See, e.g., Rodriguez and

Weing as t 2006b.

mathew d. mC cubbins & daniel b. rodriguez 281

ubiquitous and mutually reinforcing. These insights stand in sharp contrast to the

traditional depiction of agencies as neutral embodiments of expertise—a view cap-

tured well by the Progressives’ saying that “there is no Republican or Democratic way

to pave a street” and the depiction of courts as using constitutional and administrative

law to rescue apolitical agencies from the baleful inﬂuence of Congress and the

president. The more accurate picture, as this modern PPT literature reveals, is of the

bureaucracy and the judiciary embedded in the dynamic political system. Political

and legal controls, therefore, are two sides of the same coin.

4 Judicial Independence

.............................................................................

The judiciary, ... may truly be said to have neither force nor will,but

merely judgment; and must ultimately depend upon the aid of the executive

arm even for the eﬃcacy of its judgments.

(Hamilton, Federalist 78; emphasis in original)

What does it mean for a judiciary to be “independent?” What are the conditions

required for judicial independence to exist? Scholars have long grappled with the

meaning of judicial independence, oﬀering a wide range of deﬁnitions and ap-

proaches to this concept. Understanding judicial independence is especially prob-

lematic because “judicial” may have many possible meanings; it may refer to either

individual judges, a particular court, or the entire court system in a given country

(Russell 2001;Ferejohn1999). Equally problematic is the term “independence,” a

relative term which can only be understood by analyzing the judicial entity in relation

to its independence from some other entity, such as other political branches or

undue external inﬂuences. As a result of these deﬁnitional challenges, scholars have

developed two main approaches for deﬁning and analyzing judicial independence.

The ﬁrst approach examines how certain institutions and institutional rules allow

judges to exercise independence. For some scholars, such as Landes and Posner (1975),

judicial independence springs from the separation-of-powers concept mandated in

the US Constitution which allows the Supreme Court in adjudicating cases to stand

apart from the “intrusiveness of the political process” (p. 875). For other scholars,

institutional rules deﬁne judicial independence. Segal and Spaeth (2002)andSegal

(1997), leading proponents of the attitudinal approach, declare that Supreme Court

justices vote their sincere preferences due to the “rules and structures of the U.S.

political system.” Other scholars advocating an institutional approach focus on spe-

ciﬁc rules which facilitate independence. For these scholars, judicial independence

is deﬁned either directly or indirectly by life tenure (Burbank and Friedman 2002;

Landes and Posner 1975;Domingo2000), by lengthy tenure (Burbank and Friedman

2002; Magaloni 2003;Moreno,Crisp,andShugart2003), by a judicial appointment

process involving more than one branch of the government (Moreno, Crisp, and