Judging and Politics: Using an American lens to raise some questions about the Indian situation

The latest issue of the New Yorker has a short but interesting assessment of the judicial output of the U.S. Supreme Court over the last year. The author of the article is the noted legal analyst, Jeffrey Toobin (who, like most established legal journalists in the U.S., has a law degree from an elite law school). The piece adopts a fairly standard American approach to conducting an assessment of the judicial record of the highest court of the land. By standard, I mean an analysis that is extremely (perhaps overly) sensitive to the political backgrounds of judicial actors – while this is becoming common in other jurisdictions, America is still perhaps the only jurisdiction where this realist awareness is taken to such degrees. So, in Toobin’s analysis, the most important factors which explain why American judges decide the way they do, are their personal political beliefs, which in turn causes Presidents to appoint them to the Court. Here are some extracts from the piece which set out this view:

“In the next week or so, the justices will begin their summer recess. The first full term in which Chief Justice John G. Roberts, Jr., and Justice Samuel A. Alito, Jr., have served together will thus be completed, and the changes on the Court, and their implications for the nation, have been profound. The careers of Roberts and Alito have been emblematic of the conservative ascendancy in American law. Both men, shortly after graduating from law school, joined the Reagan Administration, where Edwin Meese III, who was for a time the Attorney General, and others were building a comprehensive critique of the Supreme Court under Chief Justices Earl Warren and Warren E. Burger. The conservative agenda has remained largely unchanged in the decades since: Expand executive power. End racial preferences intended to assist African-Americans. Speed executions. Welcome religion into the public sphere. And, above all, reverse Roe v. Wade, and allow states to ban abortion. As Alito wrote in an application for a Justice Department promotion in 1985, his work on abortion and race cases, among other Reagan Administration priorities, had given him the chance “to advance legal positions in which I personally believe very strongly.” Moving with great swiftness, by the stately standards of the Court, Roberts, Alito, and their allies have already made progress on that agenda.

[The next few paragraphs of the article detail some important decisions handed down over the past year, which appear to confirm Toobin’s claims].

All these conservative victories were decided by votes of five to four, with Kennedy joining Roberts, Alito, Antonin Scalia, and Clarence Thomas to form the majority. (The last big case outstanding this term is a challenge to school-desegregation plans in Louisville and Seattle. Based on the oral argument, Kennedy appears likely to join the same quartet in striking down the plans.) Kennedy holds the balance of power in the Roberts Court, much the way Sandra Day O’Connor did in the Rehnquist years. Kennedy is more conservative than O’Connor, so the Court is, too. He sided with the liberals in only one important case this year, when the Court ruled that the gases that cause global warming are pollutants under the Clean Air Act, a ruling that repudiated the Bush Administration’s narrow view of the law.

… … …And that, ultimately, is the point. When it comes to the incendiary political issues that end up in the Supreme Court, what matters is not the quality of the arguments but the identity of the justices. Presidents pick justices to extend their legacies; by this standard, Bush chose wisely. The days when justices surprised the Presidents who appointed them are over—the last two purported surprises, Souter and Kennedy, were anything but. Souter’s record pegged him as a moderate; Kennedy was nominated because the more conservative Robert Bork was rejected by the Senate. All the subsequently appointed justices—Thomas, Ginsburg, Breyer, Roberts, and Alito—have turned out precisely as might have been expected by the Presidents who appointed them. At this moment, the liberals face not only jurisprudential but actuarial peril. Stevens is eighty-seven and Ginsburg seventy-four; Roberts, Thomas, and Alito are in their fifties. The Court, no less than the Presidency, will be on the ballot next November, and a wise electorate will vote accordingly.”

What is striking in this analysis, is the assertion that decision-making in the U.S. Supreme Court is guided almost entirely by the personal political beliefs of individual judges. Toobin does not seem to think that there are any other factors which can work towards constraining a judge in deciding disputes. In an important new book, the American scholar Brian Z. Tamanaha has called such a view “instrumental” or the idea that the law is merely a means to an end. Tamanaha asserts that under this view, “people see law as an instrument of power to advance their personal interests or the interests or policies of the individuals or groups they support.” According to Tamanaha, such a view “is taken for granted in the United States, almost a part of the air we breathe,” and perceives the law “as an empty vessel to be filled as desired, and to be manipulated, invoked, and utilized in the furtherance of ends.” The rest of Tamanaha’s book is devoted to detailing the problems which accompany such a worldview. In its stead, Tamanaha proposes what he calls a “consciously rule-bound orientation.” Tamanaha accepts that personal political views and experiences will colour and affect how judges decide cases. Yet, he asserts , a judge can and should aspire for objectivity in legal decisions, which is both real and achievable in the conscious attitudes and motivations of judges.

Coming to the point of this post, I wonder about the extent to which such views of the law shape how we in India react to decisions of our own Supreme Court. As a perceptive student pointed out in a recent class discussion on constitutional theory in India, the structure of the Indian Supreme Court, and the operational details it adopts, precludes a straightforward adoption of American modes of analysis. This is because judges in the Indian Supreme Court do not sit together to decide cases, and decisions of the Court are actually handed down by twenty-six judges sitting together in benches consisting of 2 or 3 judges. On any given day, therefore, a decision of the Supreme Court of India could be given by any of ten different benches of the Court that are sitting concurrently and handing down decisions. All this is not to suggest that this makes the personal political views of judges irrelevant for decision-making. They are certainly relevant, but to conduct an analysis of how exactly they influence decisions will require a more sophisticated methodology, which accounts for the more complex practices of the Indian Supreme Court.

Also, I wonder whether what Tamanaha calls the “instrumental view of the law” is as prevalent in India. While one does see examples of this kind of analysis in India (evident, for instance, in how some newspaper commentators reacted to the interim stay order in the Thakur case), I suspect that even during the height of PIL jurisprudence (a jurisdiction which seems more amenable to allowing a judge to inject his personal views in actual decision-making) , a considerable number of people think that judges are not simply paying politics when they intervene in executive and legislative decisions. The fact that the Supreme Court consistently comes out near the end of the top of public institutions ranked for credibility, shows that it is generally perceived as enjoying legitimacy. (Of course, one way of interpreting this is that the people in general know that judges are playing politics, but simply approve of the politics that they are engaging in).

Recent discussions on this blog have focused on how Justice Pasayat, while exercising jurisdiction as part of the Vacation Bench of the Supreme Court, has handed down decisions which are apparently inconsistent. I refer here to previous posts by V. Venkatesan on the Supreme Court’s orders in the Dera Sacha Sauda and Gujjar riots episodes. In analysing these decisions, both my fellow bloggers and the various commentators who reacted to these posts, have adopted explicitly “instrumental” views of the law, implying that Justice Pasayat’s personal views may account for such seeming inconsistencies. On the current Supreme Court, Justice Pasayat, at least in the calender year 2007, is enjoying an undue amount of attention in part because he has had to decide some extremely controversial issues. While he was allotted the Thakur case, his decisions in the Dera Sacha Sauda and Gujjar riots episodes came about because he happened to be on the Vacation Bench. How a judge on the Supreme Court gets allocated particular cases is a matter within the administrative powers of the Chief Justice, but the general understanding of current practices is that in most cases, bench allocation happens through computerisation, and the role of individual discretion is greatly circumscribed. Still, from time to time, especially when it comes to the constitution of benches for sensitive constitutional questions, this becomes a matter of speculation and controversy. These events act as a possible counter to my speculative conclusion that Indian analysts are perhaps not as committed to instrumental views of the law, and harbour a belief that judges are subject to constraints (of text, history, and precedents, to name a few).

I invite comments, counterpoints and other responses from fellow bloggers and readers on these speculations, as well as on ways of analysing judicial decisions in India more generally.

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  • It is undeniable the US Judiciary lends itself very well to the analysis based on the “instrumental”
    point of view, due
    to how the Justices get on the bench, sit there for their life, how they grant certiorari, how they hear cases,
    how they decide cases in conference, trading votes and convincing colleagues as such. It is as close a political
    body as one can be, still calling itself a judicial institution.

    A clear beginning can be traced to FDR’s decision to ‘pack the court’ to make his New Deal legislations stick.

    However that analysis does have some blindspots even in the case of US Supreme Court. Some cases I can come up with are

    1. When the “New Deal” justices joined in a condemnation of their own fella Truman in resisting executive power in the Youngstown case.
    2. Chief Justice Rehnquist, a vocal opponent of Miranda rights, joined the “liberals” in Dickerson v. United States in upholding Miranda rights. Though he made it clear that he was weighed down by precedence and status of “national culture” endowed to the Miranda laws.
    3. Justice Scalia’s stinging rebuke of Bush administration in Hamdi v. Rumsfeld

    These and many more instances are when the justices “deviate” from the expectations that the politcal class had of them,
    when they were appointed due to their political predilections and “judicial philosophy” in the first place. On a side note, Jeffery Toobin’s point about
    Justice Souter actually reinforces the “instrumental” analysis, rather than being an exception. It can be argued that he turned into
    a “liberal” and hence started deciding with liberal outlook, thus still validating the “instrumental” analysis. An year ago this article
    appeared in Atlantic monthly, arguing that the court is not yet Roberts’ but Stevens’ . See Link http://www.theatlantic.com/doc/print/200601/john-roberts
    Now there is a definite sense that the court has turned “right” after Justice Alito joined the bench.

    In India’s case, because of all the factors you have outlined a hard knock Toobin style analysis of Indian supreme court is out of the question.

    However I believe the “instrumental” view, when applied carefully without crass considerations such as caste, religion and region
    can yield useful analysis. The kind of cases that end up on the Supreme Court are probably that are least amenable to the
    direct application of text, history and precedence. So if two justices differ on the same question after considering these factors,
    it is legitimate to go into further analysis. One such method would be to compare the approach of the justice in a different case
    involving similar principles and whether his application of text, history and precedence is consistent or does it show a predilection
    towards a political philosophy.

  • Arun, do we know how old the practice of randomized computerised bench construction is? I assume that the Chief Justice did play a significant role atleast till the 1970’s. There must have been a reason why Mrs Gandhi picked A.N Ray over the others?

  • If I may be permitted a moment of flippancy, I think the only theory which satisfactorily explains the recent decisions of the Indian Supreme Court is the chaos theory!

    In my opinion, Indian SC judges have far fewer labels attached to them than their American counterparts. I don’t know of anybody who thinks of Indian judges in terms of their being ‘BJP/Congress Men’. Political affiliations, even if they do exist, cannot be easily identified because most Indian political parties lack an identifiable and well articulated ideology which could aid such identification ex. pro life/anti gun control etc.

    I don’t think there is any great respect for precedents that could form the basis of an analysis. Indian judges have become experts at what Max Radin termed ‘the art of administering euthanasia to unviable progeny by saying that they stand on their own facts’. The sheer volume of decisions also inhibits attempts at analysis.

    However, when certain facts about a judge are well known, the decisions they hand down are analysed through this prism. Thus, the decision in the latest Quareshi Cow Slaughter Case was viewed by both the media and practitioners as being a result of the majority of the Bench being strict vegetarians. The only Justice who dissented was a non-vegetarian. Similarly, many are convinced that the current CJI is pro-reservations. All the factors enumerated in Holmes famous quote from ‘The Common Law’ undoubtedly play a part. For now, when trying to second guess the Court we must content ourselves with ‘inarticulate major premises’.

  • Thank you for these stimulating comments. For now, I will react to a few propositions and queries.

    Mr. Srinivasan: As you point out, relying solely on instrumental views misses out on other factors which influence a judge’s decisions. Even in the U.S., several scholars have pointed out that even the most political of judges have at times felt constrained to decide against (or at least moderate) their personal preferences. You have given us some interesting examples – there are, in fact, scores more. I for one am a bit tired of analyses which rely purely on political motivations, which is why I have smypathy for Tamanaha’s position.

    On your point about India, another important difference between the U.S and India is that ours is a general court of final appeal, and much of the caseload of the Indian Supreme Court actually consists of very routine cases and final appeals where political preferences may still play a role, but their influence is diminished. In these cases, I would argue, more often than not, you will find a straightforward application of text, doctrine or other strictly legal considerations at work.

    As you note, in ‘high stakes’ constitutional disputes, the role of personal preferences is probably larger in part due to the greater discretion accorded by the broad, abstract terms of rights provisions. I agree with you that in analysing these decisions, adopting instrumental perspectives would be justified. My point is not to deny a space for instrumental views, but to argue that adopting exclusively instrumental analysis is not particularly helpful. If we are critical of particular decisions, then it is not enough to simply point to the judge’s personal or political preferences, but to also make arguments, based on strong constitutional law, to show why the decision is wrong.

    Red: You raise an important point.
    My sense is that the process of allocation through computers is largely applicable to routine cases (which dominate the caseload of the Court). For Constitution Bench matters, I think the CJI still has a lot of discretion. Recall that in the recent minority education cases, there was some controversy about the judges who were assigned the C.B. cases (as well as those who were not). Usually in such cases, efforts are made to include judges belonging to minority communities. Clearly, that would not be possible if the process was truly random. Also, a C.B. is normally headed by the CJI or one of the senior judges. There are other facets to the assigning of C.Bs as well as other benches, which clearly indicate that the process is indeed not all that random. Thanks for providing me the chance to clarify what I set out.

    Rampal: Taking your flippant point first, I think one would have to spend some time even to demonstrate how the Court adheres to chaos theory. I’ve often heard of such characterisations, but I wonder whether by adopting such mindsets, we who seek to analyse Court decisions are giving in to laziness ourselves. As you’ve asserted, even the task of pointing out that precedents are not adhered to involves engaging seriously with questions of constitutional theory and law. My own view is that it is incumbent on analysts to make good their claims through rigorous and constitutionally sound arguments. On this count, I blame critics and analysts as much as the judges of the Court.

    As to political affiliations of Indian judges, I think if you spend some time in the canteens of Courts where lawyers mingle, you will in fact hear precisely such reports about the party affiliations of judges. From my own time as a practicing lawyer, I can tell you that this was fairly common, and I would be very surprised if this was not the case today. Notice, for instance, how appointments of retired CJIs have been made to the NHRC, especially during the 90s. In almost each such appointment, there was speculation on such lines. In earlier eras, this was perhaps not very useful, because virtually every appointed judge had to be on reasonably good terms with local, state and/or national Congress bigwigs. In these relatively uncertain political times, how judges and wannabe-judges mediate their political equations are more interesting and risky affairs.

  • As previous comments have indicated, judges are to a large extent guided by history, text, precedent, etc. but the question becomes, when those are either unclear or in conflict with one another, how does one resolve the question? That is the fairly narrow window where subjective value judgments become important and determinative of the outcome. The few cases that the United States Supreme Court takes up, as Mr. Srinivasan points out, are often complex with one or more such conflicts where the choice between one way and another comes down to how the judge prioritizes different aspects of the question in his approach as in: Is legislative history more reliable or important than the literal meaning of the text as discerned from the application of linguistic canons? Do purpose and consequence matter at all to interpretation? Which tradition matters, one that has existed for a few decades since a previous Court precedent or one that prevailed when the founders wrote the document? Answers to these and similar ones are matters of judicial philosophy where judges’ opinions, to a significant extent, do not flit from case to case, but remains consistent over extended periods of time though it might evolve during his/her entire tenure. Having said that, judicial outlook does have a decisive role, especially in constitutional interpretation for several reasons: (1) the broad and general language of the U.S. constitution allowing for a variety of interpretations (2) the extremely arduous process of constitutional amendment rendering it virtually impossible (3) the absence of smaller and larger benches, unlike the Indian system, which allows for the nine judges to decide whether or not they follow precedent – it is certainly possible and often happens that a judge dissents, not only in a single case but in an entire line of cases each time quoting his own dissent rather than the majority’s view from a previous opinion. Judges are thus under no obligation to build on an existing body of law; they are certainly entitled to stick to their own position hoping to acquire enough votes eventually, at some point, to bring it down in its entirety and start over from the beginning in an altogether different direction. This inherent flexibility coupled with the nature of the judicial selection process where political acceptability is seen to be determined more by preferred outcomes than by the appropriateness of the process lays the system open to the charge that the law is really ” an empty vessel to be filled as desired, and to be manipulated, invoked, and utilized in the furtherance of ends”, a worthwhile sentiment capturing the downside that however requires real evidence of philosophical inconsistency that would amount to abuse of the process and not merely being identified with proximity to particular movement or its political agenda.

    The Indian judiciary, on the other hand, has its own set of problems. Large number of judges and benches that are arbitrarily selected as well as the frequent transfers of judges of the lower courts introduce major stochastic elements that are not conducive to the proper functioning of a system where reliability and stability are the name of the game. Given the more diverse roles played by our Supreme Court, ‘instrumental approach to the law’ is notable in several respects – when judges often make personal comments to indicate their choice of a particular outcome or course in routine matters of appeal even when a question of law rather than of fact is concerned, when policy challenges are answered based on whether it is good or bad in the ‘national interest’ rather than on firm constitutional grounds and in more extreme instances, usually PIL cases, where judges simply make up the law on a case by case or hearing to hearing basis or simply issue executive orders without indicating any ground for a particular course of action.

    Judging the performance of the Indian Supreme Court would have to take a different approach – given the large number of judges and their rapid turnover, few individual judges can actually have such a significant impact on the overall direction of jurisprudence as a judge in the United States. A more useful way of looking at the court is a statistical analysis of its general direction as related to various fields of law. Some facts are easily quantifiable, for example, sentencing awards in criminal cases. Questions of interpretation would require a more complex assessment. One way to go about that is by formulating a set of questions related to any area or issue and asking in every case: What was the interpretation of this law at a previous point in time, say two decades ago? Has the interpretation changed since then? If so, can the change be attributed to a decision by a larger bench or is it owing to the accumulation of decisions to the contrary by regular benches? Related decisions by larger benches as well as a sampling of routine judgments within the time period can be scored for each question depending on the occurrence of any change, means of occurrence and the manner of its application. If the standard determined by a bench is fuzzy enough to confer wide discretionary authority upon the presiding judge, how that power has been exercised over time would provide a good indication. A cumulative index can be determined from these scores giving some idea of the direction that the court is headed. The same calculation, being limited to a particular judge, would also throw light upon the consistency of his/her pronouncements on related questions.

    For PIL cases, it may be worthwhile to have an ‘activism indicator’ of some kind. Some pertinent questions might be: How many petitions have been admitted? How many orders have been passed? How many times has the same question been revisited by the same court? From a sampling of such orders, how many may be categorized as falling traditionally in the category of executive authority? One incidental outcome of any such analysis might be some indication of the kind of bias, conscious or otherwise, inherent in appointments of High Court judges to the Supreme Court. Any such relatively objective framework should provide enough ammunition to jump start the essential debate about the role of the Court, its direction and the appointment process to the higher judiciary.

  • As in many other cases on this blog, the comments section actually provides far more stimulation and clarification than the actual post itself! This is an excellent sign, and is to me, a great advantage of blogs over more traditional forms of writing.

    Thanks, Dilip, for your substantive views, which articulate what I was trying to set out in clearer and more comprehensive terms. Your comment also sets out a great research agenda for constitutional scholars who seek to add to the depth and quality of Indian constitutional jurisprudence. Hopefully, we will be able to explore answers to at least some of your questions as the blog continues.

    Vivek: Thanks for the link, of which I was unaware. Tamanaha’s new book is getting quite a reaction, and I noticed that it is also featured in a panel discussion of its own in the upcoming Law and Society Conference in Berlin. To me, the book raises interesting questions for Indian scholars as well.