The Disavowal of Decisionism: Politically Motivated Exits from the U.S. Courts of Appeals

Résumé

Principles of apoliticality and personal disinterestedness subtend the American judiciary’s claims to legitimacy and the liberal constitutional legal system it upholds. Less than 1% of U.S. Federal judges report political motivations for retirement and resignation. Our data suggest political motivation in the judiciary is far more common. From 1802 to 2019, 11% of retirements and 23% of resignations from the U.S. Courts of Appeals appear to have been motivated by political cycles. When the President comes from a different political party than the judge’s party of appointment, judges are less likely to retire in each of the three quarters before a Presidential election. In contrast, judges are more likely to resign in each of the four quarters after a Presidential election when the President comes from the judge’s party of appointment. Politically motivated exits have increased significantly in recent years to constitute 14% of retirements since 1975, suggesting an increasingly politically interested and polarized judiciary. Prior research has relied on self-reports or yearly analyses that have obscured political dynamics in the timing of judges’ exits from the bench. By analyzing data at the quarter-to-election level, our results suggest that highly consequential decisions by Federal judges are frequently inflected by either unconscious bias or conscious partisan loyalties––either of which undermine the premise of judicial impartiality and the common law precedents for which these judges are responsible. Our findings support increasing concerns about undemocratic political power exercised via the courts––that is, the ascent of juristocracy: the practice of politics through legal dissimulations.