Americans tend to worry about how our current polarized political climate will affect the legitimacy of our courts. Often overlooked in this important conversation is a discussion about what a toxic political dialogue can do—and in fact is doing—to the construction of the law itself. This Article will begin to make the case that judicial decisions themselves change as a result of high-intensity politics. Specifically, I will argue that when judges are “under fire” (to borrow a phrase from Planned Parenthood v. Casey), they tend to cloak their decisions in factual observations about the world that seem neutral and objective, even if that neutrality is an illusion.
To build my case, I draw lessons from a comparison with judges in a sister country also plagued with an epic political gridlock—the United Kingdom. I will make several observations stemming from this comparison, and then I will tie them together in a plausible explanatory story. I claim that (1) American law is anchored in factual claims about the way the world works that is very different from judicial decisions in the United Kingdom; (2) U.K. judges have long been protected from public accusations of acting “political” in a way American judges have not; and (3) these two observations are related.
An important consequence of a culture that throws political mud on judges, therefore, is that judges will shield themselves from it by anchoring their decisions in “neutral” claims of fact. Thus, the Voting Rights Act is dismantled because of factual evidence (laid out in graphs and charts) that voting patterns have changed over time. Campaign spending is protected by the First Amendment because there is no factual “evidence on the record” that it causes corruption. Even older cases penned when the Justices knew the nation was watching critically (Roe v. Wade and Brown v. Board of Education) rest their rationales on factual claims about the way the world works. Put simply, American judges are using facts as shields from accusations that they are behaving politically, and there is every reason to believe this trend will increase as the need to protect themselves continues.