Judges as Political Regulators: Evidence and Options for Institutional Change
29 Pages Posted: 24 Mar 2010
Date Written: March 23, 2010
A major theme of election law scholarship over the last decade has been that judicial oversight of the devices of democracy is desirable to foster adequate political competition. Under this view, politicians’ self-interest should preclude them from deciding the conditions for their own future races, such as the location of legislative districts. Apart from the merits or problems with this approach, the reality is that courts increasingly are called upon to engage in political regulation. Election law litigation has more than doubled in the last decade.
Turning to judges as political regulators can be problematic in two ways. First, judges, like politicians, might act in self-interest to favor their past or present political party or to keep themselves in office. Second, apart from self-interest, judges come to these cases with their own world views and might not apply “neutral” principles in deciding election law cases. If either of these two concerns has merit, then the role of judges as political regulators needs further examination. Under what circumstances should judges decide issues of political regulation? What changes in the structure of adjudication or legislative drafting could be made to minimize the problems with judicial regulation of politics? Are there other institutions that may be designed for the regulation of politics?
This paper does not answer these questions, but sets forth some of the evidence bearing on them as well as an agenda for future research. Part I briefly describes the case for judicial intervention in politics and describes the litigation explosion in the election law area in the last decade. Part II discusses the literature and open questions regarding how judges decide political regulation cases. It draws upon, among other things, a study on judges and the “single subject rule” applicable to initiatives. Part III considers whether changes in legislative drafting or institutional design could improve the field of political regulation. In particular, it considers whether “New Institutionalist” proposals may be relied upon to lessen the public’s dependence upon judges as political regulators.
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