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Citation: 61 U. Colo. L. Rev. 703 1990
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DO WE REALLY ALL BELIEVE THAT JUDGES
SHOULD BE INFLUENCED BY POLITICAL
PRESSURE?
LEA BRILMAYER*
In his paper Political Pressure and Judging in Constitutional
Cases,' Professor Nagel makes a far-reaching empirical claim, namely
that most of us believe that judges ought to be influenced by political
pressure. Even if true, this claim does not by itself show that judges in'
fact ought to be influenced by political pressure. It would be entirely
possible that virtually everyone believed that judges should be influenced by political pressure and yet all of these people were wrong.
Nonetheless, his claim that most of us' believe that judges should be
influenced by political pressure, if true, is an important and interesting
one. For it seems to cast suspicion on the common complaint that our
judicial processes have become too politicized. Nagel suggests that it
is hypocritcal to argue against political pressure playing a role in judicial decisionmaking, since we only raise complaints against political
pressure when it threatens to bring about judicial decisions that we do
not like.. i disagree with his conclusions about what most of us actually believe, and also with the suggestion that, many of us are hypocritical in our opposition to political pressure in the judicial process.
Nagel's. argument proceeds. by adducing examples of political
pressure that we supposedly find acceptable, such as law review articles. By showing that there are many such instances of political pressure on the judicial process that we find acceptable, and by showing
that there is no valid distinction between these and other kinds of
political pressure (such as street demonstrations and letter-writing
campaigns) he hopes to show that we currently approve (or, if we were
consistent, we currently should approve) of political pressure of all
sorts. Of course, it would be possible to argue instead that-to be consistent we should disapprove of more than we do. Perhaps judges
should ignore law review articles. But my claim, instead, is that his
examples do not demonstrate instances in which people approve politNathan Baker Professor of Law, Yale University. This essay is a comment on Robert Nagel,
PoliticalPressureand Judging in ConstitutionalCases, presented at the Ira C. Rothgerber, Jr. Constitutional Law Conference at the University of Colorado on April 13, 1990. These comments were written
in response to the first draft of Professor Nagel's paper which was distributed before the Conference.
They do not reflect any additions or changes that have been made since'the Conference.
1. Nagel, PoliticalPressure and Judging in ConstitutionalCases, 61 U. COLO. L. REV. 685 (1990).
703
704
UNIVERSITY OF COLORADO LAW REVIEW
[Vol. 61
ical influence on the judicial process.. Some of them are not instances
of political pressure; some of them are not instances of pressure on the
judicial process; and the remainder convey little or no information
about what. we currently think is proper, as, opposed to strategically
helpful.
I. PRESSURE VERSUS PERSUASION
First, Nagel wrongly includes all attempts to influence judicial
behavior as being instances of political pressure. He seems to be arguing that any time a judge is influenced by something other than the
text of the Constitution or existing case law, this is an example of
political influence on the judicial process. The best example of this
line of reasoning'is his discussion of law review articles.2 Other examples include his references to judicial reliance on expert opinion, such
as the positions taken by the American Medical Association.'
I would not 'count these as instances of political pressure because
I think that law review articles are designed to persuade, rather than
to pressure. I would expect that the reaction of a judge to a law review
article with which he or she disagrees is more likely to be boredom
than fear. Of course academics like to have their arguments reflected
in important Supreme Court opinions; people want their arguments to
be influential and persuasive. But this is probably a pretty rare event;
most citations to law review articles are probably added by judges who
have already made up their minds, and'are simply looking for support.
More importantly, where we have any influence at all, it is probably
because once in a while we actually contribute to the merits of the
discussion. Persuasion, however, is not pressure.
Other examples that Nagel gives fall prey to the same objection.
He talks about the significance of witnessing executions or of visiting
hospital patients who are in a permanent Vegetative state.4 Whatever
one might call these *sorts of information-gathering experiences, they
are not political pressure. Indeed, in these examples it is hard to see
who would be applying the supposed political pressure. The condemned criminal? The comatose patient? Nagel is using "political
pressure" as a synonym for "influence." Anything that might be
thought to influence a judge's decision, except perhaps for the constitutional text and maybe the Federalist papers, is characterized as
political pressure. Concededly, if we define our terms that way, then
the majority of the population would indeed agree that judges should
2. Id. at 696.
3. Id. at 692.
4. Id. at 692 & n.25.
1990]
JUDGES AND POLITICAL PRESSURE
decide according to political pressure. But most of us don't use the
words "political pressure" so broadly.
Strict constructionists may think that it is improper for judges to
take into account anything other than the text of the Constitution and
the deliberations of the framers. Perhaps they think that all extrinsic
influences on the process are equally bad. But even if all extrinsic influences were equally illegitimate-a position that I do not adopt-this
would not mean that they were all instances of political pressure.
Even if our law review articles are merely reflections of our own political points of view (rather than neutral deductions from text and case
authority) this would not make them political presure, because no
pressure is involved.
II. WHO IS THE TARGET?
A second problem with Nagel's examples is that some of them are
not instances of pressure directed at judges. They may involve political pressure, but they do not involve political pressure on the judicial
process. The type of example that I have in mind is the judicial opinion containing politically rousing rhetoric. Nagel cites Justice Blackmun's opinion in Webster v. Reproductive Health Services5 as an
example of an effort to use political pressure to influence the judicial
process. I would not have read the opinion this way. To my mind, the
more likely interpretation is that Justice Blackmun was warning supporters of abortion rights that they should be attentive to what was
likely to happen in legislatures. Legislators are much more likely to be
influenced by bags of mail than are most of his colleagues on the
Court.
While the abortion battle is now consuming much court time, it is
consuming at least as much in the legislatures. Indeed, until legislation
is passed, the judicial battle is not joined. Abortion rights advocates
are not fools. They realize that if they rely on courts alone, they will
be making a mistake. While there may be reasons that judges should
not enter the political thicket by attempting to stir up lobbying efforts,
the fact that it is arguably wrong does not mean that it constitutes
political pressure on judicial decisionmaking. It is an example of judicial influence on the political process, not political influence on the
judicial process. As with his examples of law review articles and
AMA opinions, Nagel is simply equating "political pressure" with
"things that a strict constructionist would find objectionable."
5. 109 S. Ct. 3040, 3067 (1989).
706
III.
UNIVERSITY OF COLORADO LAW REVIEW
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STRATEGIC CONSIDERATIONS
My third point is a bit more complicated because it involves what
are concededly examples ofpolitical pressure, which are concededly
directed at judges. It was suggested by Nagel's example of political
demonstrations over the abortion controversy. 6 Nagel brings up the
abortion controversy because he thinks that the justices are attempting
to use political pressure; I have already explained Why I do not find his
arguments persuasive.. A .more interesting question, however, concerns the motives of'the protesters themselves. Nagel notes that both
sides of the controversy have attempted to influence the Supreme
Court by demonstrations, mail campaigns, and the like. It would
seem, then, that both pro-life and pro-choice advocates believe that
political pressure should. influence judicial decisionmaking. Now, of
course one might respond that the protesters. represent only a small
segment of the population; these protests hardly show that most people believe that political influence on judicial decisionmaking is appropriate. While this may be true, I am willing to brush .aside this
objection to consider a more interesting point. My argument,
although this may seem paradoxical, is that just because oneis willing
to engage in activities intended to exert political pressure does not necessarily mean that one believes that judges should be influenced by
political pressure;.
To explain this point, we should first consider what it means to
say that one believes that judges ought to be influenced by political
pressure. If one believes that judges ought to be influenced by political
pressure, this means that one must believe, that in some instances the
existence, of political pressure.ought to make a difference in how. the
case is decided. One must believe, in other words, that there exist at
least some instances in which the case should be decided one way if no
political pressure is brought to. bear but the opposite way if political
pressure is brought to bear. For if you believe that in all cases the
same result should be reached regardless of whether political pressure
is brought to bear, then you must believe that the result should not
depend on whether there is' political pressure, and that political pressure ought to be irrelevant to the outcome.
As just phrased, we have explained what it means to say that one
believes that a judge ought to be influenced by political pressure as a
general matter. To be more specific, we should ask what it means to
say that one believes that a judge ought to be influenced by political
pressure in. a particular case. If I believe that a judge should be influ6. Nagel, supra note .1,at 692.
1990]
JUDGES AND POLITICAL PRESSURE
enced by political pressure in a particular case, then this means that I
believe that political pressure, ought to make a difference to his or her
resolution of the case. If enough political pressure is brought to bear,
it should affect the outcome. Conversely, if I believe that the judge
should not change his or her vote because of the existence or nonexistence of political pressure then it would be inaccurate to -say that I
believe that the judge should decide according to political pressure.
These definitions seem straightforward, indeed, rather trivial.
They also seem consistent with Nagel's arguments, because he says not
only that political pressure should make a difference, but that the absence of political pressure should make a difference 'as well. It is a
form of mute protest.7 Applying this definition, then, we should ask
whether it is true with regard to abortion protestors (on either side)
that they believe the result should depend upon whether political pressure is brought to bear. Do pro-choice demonstrators or pro-life demonstrators believe that their protests ought to make a difference in how
individual judges vote or on how the case ultimately is resolved?
I think it is the case that virtually none of the abortion protestors
on either side would say that a different result should be reached with
political pressure than without. Consider the pro-life activists first.
Presumably, they believe that the Supreme Court should uphold restrictive abortion laws if there are no pro-life demonstrations. They
believe that Roe v. Wade' was wrongly decided. But they also undoubtedly think that the Supreme Court should uphold restrictive
abortion laws if there is political pressure. They 'believe that *fetuses
should be6protected whether or not demonstrations take place. Similarly, pro-choice advocates clearly believe that their right to abortion
should be protected if they do not, demonstrate against restrictive
abortion laws. They believe that Roe v. Wade was decided correctly.
But they also believe that if political pressure is brought to bear, then
abortion rights should be protected. Obviously, both sides. believe that
they should prevail if they protest; they would not concede, that if they
do not protest, they should forfeit their claim to what they think is the
"just" result. '
Now, on the face of it, 'this seems somewhat paradoxical. It appears that both sides are in agreement that political pressure should
not make a difference to the outcome, but that both sides are busy
trying to exert political pressure 'in order to influence -the outcome.
How can this be? I offer two explanations for this phenomenon.
Probably others could be discovered.
7. Id. at' 691/'700.
8. 410 U.S. 113.(1973).
UNIVERSITY OF COLORADO LAW REVIEW
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The first is that protestors might be engaged in expressive conduct, which is valuable' regardless of whether it influences the outcome. Standing up for what you believe to be the correct result may
have instrumental value, but it can also be considered an end in itself.
Expressions of solidarity are empowering, and abortion demonstrators
on both sides of the issue undoubtedly value these feelings of solidarity. I mention this alternative because I suspect that it is of psychological importance to the individuals involved. It is less central to the
current issue, however, than the second alternative, which in contrast
does involve instrumental behavior. The second alternative is a strategic explanation.
In strategic terms, there is nothing paradoxical about putting
political pressure on judges even though one thinks that judges should
not respond to political pressure. The paradox is only superficial because it confuses beliefs about what judges ought to do with beliefs
about what judges in fact will do. A political protestor is exhibiting a
belief that the demonstration will--or might-influence the judge's decision. He or she might consistently hold both this belief and the belief that, ideally, judges ought not to be influenced by a demonstration.
It is not necessarily hypocritical to believe that judges will be influenced by political pressure, but that this fact is regrettable. There are
a number of circumstances in which it would be perfectly reasonable
to hold both of these beliefs; I will describe four such situations which
come to mind, although it would probably be fairly easy to hypothesize others.
The Politically Deferential Judge. The first scenario involves
what might be called the politically deferential judge-the judge who
is deferential to political opinions as a matter of principle. A demonstrator, Smith, wants to influence the judge, and reasons as follows. "I
know that there is an absolute and inalienable constitutional right to
abortion. It does not depend in any way on whether there are protests
in favor of freedom of choice. However, the judge believes that the
existence of constitutional rights depends in part on whether there is
political support for them. If I protest, then the judge is more likely to
decide that there is a right to abortion. Therefore I should demonstrate even though, given my own values, the presence or absence of
political pressure is irrelevant."
The Spineless Judge. The second case, the spineless judge, involves a line of reasoning that is different in only one respect: the judge
conforms to political pressure out of cowardice rather than out of
principle. Here, Smith reasons as follows. "I know that there is an
absolute constitutional right to abortion. The judge may or may not
1990]
JUDGES AND POLITICAL PRESSURE
agree with my reading of the Constitution, but is certain to be reluctant to cause a large political furor by ruling in an unpopular way. If I
demonstrate, it is therefore more likely that the judge will decide that
there is a right to abortion. Therefore I should demonstrate."
FightingFire with Fire. In this case, Smith uses political pressure
to counteract political pressure from the opposition. The situation involves something of a prisoner's dilemma, in that both sides might
prefer not to use political pressure but are afraid to be the only group
remaining silent. Smith reasons in the following way. "My opponents
are well organized politically, and are applying political pressure. I
don't know whether or not the judge will be influenced by the political
pressure, but I can hardly afford to remain silent. If we demonstrate,
the political pressures will balance out, and the judge will decide on
the merits. Since our side has the best constitutional argument, we
would then win the case. Therefore.I should demonstrate even though
I don't believe that political pressure should make a difference."
Arguing in the Alternative. In the fourth scenario, Smith continues to believe that there is a constitutional right to abortion, that it is
inalienable and that it has nothing to do with political popularity. But
Smith. also believes that even if there were not such a constitutional
right, the judge should still decide in favor of a right to abortion because that is what most Americans want. Smith reasons as follows.
"While I know that the result in this case does not turn on popularity-because there is an independent basis -for the right to abortionthe judge may not see the constitutional rights argument as I do. It
would be foolish to. make only one. of my arguments on behalf of a
right to abortion, when I don't know which one the judge would find
persuasive. In order to make my alternative argument about political
popularity, I need to prove that Americans really value the right to
abortion. Therefore'I should join the demonstration."
Notice that what makes these four examples work is the fact that
Smith does not take for granted that the judge's beliefs and values are
the same as her own. ,While Smith does not believe that anything
turns on the political popularity of the right to abortion, she recognizes that the judge may disagree. The judge may decide on grounds
that Smith herself. would not recognize as convincing or legitimate.
This is why Smith may make arguments to the judge that she would
not be influenced by if she herself were a judge. In Smith's view, it is
an unfortunate fact of life that judges may refuse to recognize the inalienable. constitutional rights that exist, or may corruptly decide according to fear of political repercussions. Smith's strategy. is dictated
710
UNIVERSITY OF COLORADO LAW REVIEW
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not by her own beliefs about what ought to be convincing, but by her
beliefs about what the judge will, or might, find convincing.
This set of scenarios illustrates that the most we can infer from
attempts to lobby judges is the fact that many Americans may believe
that lobbying might have an effect. This does not mean that Americans think that judicial lobbying is acceptable, any more than the fact
that some Americans think that bribing a judge (or legislator) might
be effective means that these individuals believe that bribery ought to
be effective. And there is much more at stake here than a simple logical flaw in Nagel's academic argument. At stake is an important point
about how we feel about constitutional rights. Perhaps I can illustrate
the importance of the point by use of an analogy.
Assume that you live in a totalitarian country, and it has been
revealed that the government is prepared to perform gruesome medical experiments on a certain segment of the population. The group
that would suffer under this policy is politically unpopular and is being
treated as a scapegoat by influential segments of society that dominate
the current government. An activist group is prepared to demonstrate
publicly against the experimentation, and you are trying to decide
whether to join the demonstration. You believe that there is some
chance that public protest will help put an end to the proposal. You,
of course, believe that experimentation of this sort is wrong under all
circumstances. Its permissibility does not depend on whether there
are political protests or not; it is simply wrong.
Your decision to join the protest may indicate that you think that
the government will be cowed by public pressure, or it may indicate
that you hope that the protest will convince the government of the
error of its ways. What it clearly does not indicate is that you believe
that failure to protest would make the experimentation acceptable.
And there is nothing hypocritical about both demonstrating and also
insisting that the government should not make such decisions on political grounds. It is not hypocritical to criticize the government for caving in to political pressure to mistreat scapegoats while politically
pressuring the government to desist. The fact that we sometimes have
to stand up for rights--our own rights, or the rights of others--does
not mean that we believe that we ought to have to stand up for our
rights. And the fact that we do so does not mean that in the absence of
our protest,.our rights would not exist or that the government would
have no obligation' to respect and defend them.