Presidential Politics and Judicial Review

54 Pages Posted: 15 Sep 2017 Last revised: 17 Oct 2017

See all articles by Robert L. Glicksman

Robert L. Glicksman

George Washington University - Law School

David E. Adelman

University of Texas School of Law; University of Texas at Austin - Kay Bailey Hutchison Center for Energy, Law & Business

Date Written: September 13, 2017

Abstract

This Article assesses the impact of judicial review on one of the nation’s foundational environmental statutes, the National Environmental Policy Act (NEPA). Based on litigation spanning fifteen years, we find that the stringency of judicial review is driven by the interaction of judicial ideology and presidential politics. Our principal findings are two-fold: First, judicial ideology, here defined by political party affiliation, is most influential when NEPA’s environmental goals conflict with the politics of the presidential administration in power. Second, the influence of judicial ideology is mediated by the distribution of cases across federal circuits and the ideological balance of judges within them; specifically, the concentration of NEPA cases in the Ninth Circuit, where liberal appellate judges are in the majority. Under well-defined conditions, we find that judicial review is most demanding when the risk of statutory subversion is greatest — that is, when the politics of an administration conflict with the purpose of the governing statute.

The normative and practical implications of these observations are illustrated by comparing NEPA with the expanding array of legal mandates that prescribe elaborate economic cost-benefit analyses. Most recently, the Trump Administration has issued a raft of executive orders and Congress is considering new legislation that augment the economic reviews required under existing laws and regulations. Understanding the interplay between presidential politics and judicial review provides new grounds for concern that, unlike NEPA, the pending statutes will seriously disrupt and delay agency decision-making processes. Further empirical study of judicial review under a range of statutes is needed to determine how broadly our findings apply to judicial review of agency action across the federal government.

Keywords: Judicial Review, National Environmental Policy Act, Administrative Law, Environmental Law

JEL Classification: K32, K23, K41

Suggested Citation

Glicksman, Robert L. and Adelman, David E., Presidential Politics and Judicial Review (September 13, 2017). Arizona State Law Journal, Forthcoming; GWU Law School Public Law Research Paper No. 2017-70; GWU Legal Studies Research Paper No. 2017-70. Available at SSRN: https://ssrn.com/abstract=3036599

Robert L. Glicksman

George Washington University - Law School ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4641 (Phone)

HOME PAGE: http://www.law.gwu.edu/Faculty/profile.aspx?id=16085

David E. Adelman (Contact Author)

University of Texas School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-232-0877 (Phone)

University of Texas at Austin - Kay Bailey Hutchison Center for Energy, Law & Business ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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