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

  • Daniel L. Chen and Eric Reinhart EMAIL logo
Published/Copyright: July 8, 2024
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Review of Law & Economics
From the journal Review of Law & Economics Volume 20 Issue 2

Abstract

The impartiality and apolitical nature of the American judiciary are key to its legitimacy and the liberal constitutional legal system it supports. Though less than 1 % of U.S. Federal judges admit to political motivations for retirement or resignation, our research suggests these influences are more widespread. Examining data from 1802 to 2019, we found 11 % of retirements and 23 % of resignations from the U.S. Courts of Appeals may be linked to political cycles. Judges are less likely to retire before a Presidential election when the President is from a different party than their appointing party, and more likely to resign after the election if the President is from their appointing party. These politically motivated exits have grown, accounting for 14 % of retirements since 1975, which points to a more politically charged and polarized judiciary. Previous studies relying on self-reports or annual analyses have missed these political dynamics in judges’ departure timing. Our quarter-to-election level analysis reveals that significant decisions by Federal judges may often be influenced by unconscious bias or conscious partisan loyalty, both of which challenge the idea of judicial neutrality and the common law precedents judges must uphold. Our findings support growing concerns about undemocratic political power being exercised through the courts, giving rise to juristocracy – the practice of engaging in politics under the guise of legal proceedings.

Keywords: judicial tenure; political polarization; juristocracy; legitimacy; court reform
JEL Classification: K4; D72; D78; K00
Corresponding author: Eric Reinhart, MD, Anthropologist and Resident Physician, Physician Training Scientist Program, Department of Psychiatry and Behavioral Sciences, Northwestern University, Evanston, USA, E-mail: 

This project was conducted while Daniel Chen received financial support from the European Research Council (Grant No. 614708), Swiss National Science Foundation (Grant Nos. 100018-152678 and 106014-150820), Institute for Humane Studies, John M. Olin Foundation, Ewing Marion Kauffman Foundation, Templeton Foundation (Grant No. 22420), the Program on the Legal Profession and the Center for American Political Studies at Harvard, and AFTSE/TSE funding and IAST funding from the French National Research Agency (ANR) under the Investments for the Future (Investissements d’Avenir) program, grant “ANR-17-EUR-0010” while Eric Reinhart received funding from the Radcliffe Institute for Advanced Studies at Harvard University, The Wenner Gren Foundation, and Harvard University Department of Anthropology.

  1. Author contributions: The authors contributed equally.

  2. Competing interest: The authors have no competing interests pertaining to this research.

  3. Classification: Social sciences.

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Received: 2024-03-15
Accepted: 2024-03-30
Published Online: 2024-07-08

© 2024 Walter de Gruyter GmbH, Berlin/Boston

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https://doi.org/10.1515/rle-2024-0044
Keywords for this article
judicial tenure; political polarization; juristocracy; legitimacy; court reform

Articles in the same Issue

  1. Frontmatter
  2. Articles
  3. Should Courts Decide Climate Policies?
  4. On the Role of Courts in Climate Policy: Comment on Lando
  5. Origins of the Economic Approach to Crime and Punishment
  6. Are Individual Care Investments Affected by Past Accident Experiences?
  7. Penalizing Shirking in Discovering Unsuitability
  8. The Disavowal of Decisionism: Politically Motivated Exits from the U.S. Courts of Appeals
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