May It Please the Court

Judicial Processes and Politics In America

Brian L. Porto

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781498737432
• Edition: 3
• Topic: Law
• Subtopic: Criminal Law
• Index: Law

This practical, comprehensive, and engaging introduction to the American judicial system is designed primarily for undergraduate students in criminal justice, liberal arts, political science, and beginning law. It differs from other texts not only by delivering an insider's view of the courts, but also by demonstrating how the judicial process operates at the intersection of law and politics.

Unlike the many dull and inaccessible texts in this field, May It Please The Court conveys the human drama of civil and criminal litigation. With an updated epilogue, case studies, and discussion questions, this third edition is a robust resource for criminal justice students.

1Courts and Judges in the Political Process

1.1Law and Politics: Myth and Reality

To understand how courts work, one must understand the relationship between law and politics. That is no small task. Newspapers, periodicals, and even some textbooks discuss both law and politics without defining either term. Two enduring myths misconstrue the relationship between law and politics and cause much confusion about how courts work. The older myth is that law and politics are unrelated; therefore, law is not political at all. The newer myth is that law and politics are identical; therefore, legal reasoning is merely a justification for judges’ public policy preferences.

One famous example of the older myth is Alexander Hamilton’s statement in Federalist Paper Number 78 that courts “have neither force nor will, but merely judgment.”1 Another famous example is the majority opinion that Justice Owen Roberts wrote in United States v. Butler, in which the Supreme Court invalidated the Agricultural Adjustment Act (AAA) of 1933, reasoning that Congress lacked the power under the Constitution to regulate agricultural production.2 Justice Roberts depicted judicial power in constitutional cases as minimal and as divorced from politics. He wrote that when the Court considers a case that concerns a constitutional challenge to an act of Congress, “all [it] does, or can do, is to announce its considered judgment upon the question.”3 He added that the Court “neither approves nor condemns any legislative policy.”4 Instead, Justice Roberts observed,

When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty—to lay the article of the Constitution which is involved beside the statute which is challenged and to decide whether the latter squares with the former.5

The Hamilton and Roberts quotations ignore the political significance of court decisions. For example, considerable “will” was involved in the Supreme Court’s “judgment” that the Congress lacked the power to regulate agricultural production, and that will reflected the Court majority’s plainly “political” hostility to governmental regulation of business. “Force” was also present in the Court’s decision. It made President Franklin Roosevelt abandon, at least temporarily, his plans to boost farmers’ incomes during the Great Depression by taxing the processors of crops, and then paying the proceeds to farmers who agreed to reduce their cultivated acreage.

An illustrative, but not-so-famous, example of the newer myth is a newspaper commentary about a decision the Supreme Court reached during its 1996–97 term. That decision occurred in Clinton v. Jones, which arose from allegations by Paula Corbin Jones that President Bill Clinton sexually harassed her in 1991, when she was an employee of the State of Arkansas and he was the governor of that state.6 The Supreme Court held in June 1997 that President Clinton was not immune from being sued during his presidency for actions unrelated to his official duties; therefore, Jones’s lawsuit could proceed while Clinton was president of the United States.7

The newspaper commentary chastised the Court for its decision. The author stated:

By ruling, in effect, 9 to 0 that the sordid effort by Paula Jones to blackmail a sitting president can go forward, the tallest court in the land caved in to the band of Clinton-haters organized by political enemies in Arkansas to overturn the results of two national elections.8

That quotation is as misleading as the Hamilton and Roberts quotations. It assumes that law and politics are identical and concludes that the Supreme Court permitted Jones’s lawsuit to proceed during Clinton’s presidency because the justices lacked the courage to thwart the efforts of Clinton’s critics to discredit and to distract him. It failed to recognize that the legal question of whether the Constitution allowed Jones’s lawsuit to proceed during Clinton’s presidency was separate from the political question of whether that lawsuit resulted from political hostility or from sexual harassment. The Supreme Court only decided the legal question because that was the only question it was authorized to decide.9

Both myths oversimplify the relationship between law and politics. This book rejects the myths and begins from the premise that although law and politics are closely related and frequently intersect, they are not identical. One must define both terms before explaining the similarities and the differences between them.

Law is a system by which society decides how to allocate its scarce resources and organize relations among individuals and institutions to achieve predictability in business and personal affairs.10 Law includes the rules of conduct that govern human relations, such as the Vermont rule that a will is invalid unless two or more credible witnesses attest to it.11 Law also includes the language that judges use to decide cases and to explain, in written opinions, the reasons for those decisions.12 Finally, law includes public attitudes toward the rules of conduct and their enforcement.13 For that reason, state laws against drunk driving became increasingly effective during the 1970s and the 1980s, when an outraged public began to demand that those laws be strictly enforced. Law works best when those who are most likely to break it know that government will use its monopoly on the legitimate exercise of force to ensure compliance.

Politics is the acquisition, retention, and exercise of power for the purpose of collective action. That action allocates the benefits and the burdens of life in civil society. Simply put, politics determines “who gets what, when, how.”14 Politics and law are related because they both aim to organize human relations and allocate resources in a manner that promotes stability and predictability.15 Nevertheless, they are different because law is about making choices, while politics is as much about obtaining and retaining influence as it is about exercising that influence. Law results from politics, but it is not politics. Law cannot exist without politics, but politics often exists without law, such as when legislators introduce bills that have little or no chance of enactment to curry favor with their constituents.

Thus, law is neither nonpolitical nor entirely political. Law and politics are distinct from one another, but they intersect because lawsuits frequently present courts with legal questions that arise from political controversies. Under such circumstances, judges’ public policy preferences are likely to influence their legal conclusions. United States v. Butler, for example, presented the legal question whether Congress’s constitutional authority to regulate “interstate” commerce enabled it to regulate the production of agricultural commodities. That question arose out of political opposition to President Roosevelt’s “New Deal” plan for economic recovery from the Great Depression. The legal question and the political controversy that produced it were closely related; therefore, you should not be surprised that the majority’s political philosophy influenced its decision in Butler.

Still, judges do not have unfettered discretion to decide legal questions in a blatantly partisan fashion. We expect judges to resolve legal questions by means of legal reasoning. That is precisely what the Supreme Court did in Clinton v. Jones, when it concluded unanimously that the Constitution did not bar Jones from pursuing her lawsuit against President Clinton during his term of office. The justices were not free to r...