On Politics and Law: Recovering the Pritchett Synthesis

• DOI: https://doi.org/10.1108/S1059-4337(2012)0000058005
• Pages: 29-44
• Published date: 20 August 2012
• Date: 20 August 2012
• Author: John Brigham

ON POLITICS AND LAW:

RECOVERING THE PRITCHETT

SYNTHESIS

John Brigham

ABSTRACT

C. Herman Pritchett saw politics in law without losing the sense that

law was not simply politics. This synthesis from the 1940s was lost in the

last half of the 20th century and it deserves to be brought back. While

denial that politics matters is a staple of Supreme Court confirmation

hearings, this position is no longer credible. In constitutional law in

particular, politics has pushed law aside in the minds of scholars,

journalists, and many Americans. This makes it hard to find a place for

law in the study of the Supreme Court. This chapter advocates a return to

the balance that was in place over 50 years ago when we were first taught

that Supreme Court decisions were political.

Commentary on the decision making of justices on the Supreme Court, from

the academy, particularly Political Science, to ‘‘the mainstream media,’’ is

increasingly comfortable with political explanations for judicial decisions.

Indeed, currently it is hard to find a place for law among serious students

Special Issue: The Discourse of Judging

Studies in Law, Politics, and Society, Volume 58, 29–44

Copyright r2012 by Emerald Group Publishing Limited

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1108/S1059-4337(2012)0000058005

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of the judiciary. Yet, in confirmation hearings for the Supreme Court,

nominees regularly argue that only law will be a factor in their decision

making. The nominees disavow or simply deny the prevailing wisdom in the

academy. Today, the difference between the two perspectives seems total.

That is, in explaining what judges do, it seems it is either law or politics and

it is nearly impossible to imagine a place for both.

This was not the case when C. Herman Pritchett first established that

there were political dimensions of judging in his work on the Roosevelt

Court in 1946. Over a half-century later, Supreme Court nominee John

Roberts was very clear that he believed his political orientation would not be

a factor in his judging when he testified before Congress. Judges, he said,

were like umpires and politics was no more relevant to what they did than it

would be to calling ‘‘Balls’’ and ‘‘Strikes.’’ This claim came only a few years

before The New York Times announced that the Roberts Court was ‘‘the

most conservative in decades’’ (Liptak, 2010). This chapter proposes that in

the last 50 years the position that holds it is law that governs the decisions of

judges has become quite hostile to those who would suggest politics plays a

role. This is sometimes called the formalist position. Here it will be simply

described as the law or legal position. Law, as a basis for judgment, has

recently seemed to be so antithetical to politics that the tension has become

something of a cliche

´. At the same time, the perspective that looks to

politics, which has roots in Legal Realism and political jurisprudence, has

itself become more extreme and less nuanced. Indeed, the view that there is

politics on American appellate courts has become so extreme as to be the

complete opposite of the view that law plays a role. Indeed, both have

become caricatures and lack the nuance that comes from incorporating

both.

After examining the way these worlds have been divided, by attention first

to politics and then to law, the chapter considers the possibility of a synthesis

that is not only attainable but may have once been the characteristic way of

thinking about how those trained in the law think about their field. This

approach involves a return to something like what Pritchett engaged in and

probably should represent. The synthesis would recognize that in institu-

tional settings like the Supreme Court there is a mix of law and politics at

work in judging. The relevance of this fact is applied to the challenges

presented by those who are critical of the Citizen’s United decision (2009).

Nomination hearings, commentary in the national media, and the discourse

of law and social science will be examined. I will also draw on arguments

made in Constitutional Language (1978), originally written as a dissertation

for Pritchett and comments directed at Keith Bybee’s work, All Judges Are

JOHN BRIGHAM30