Polarization and the Judiciary

Richard L. Hasen
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引用次数: 9

Abstract

The increased polarization in the United States among the political branches and citizenry affects the selection, work, perception, and relative power of state and federal judges, including justices of the US Supreme Court. Polarization in the United States over the last few decades matters to the American judicial system in at least four ways. First, polarization affects judicial selection, whether the selection method is (sometimes partisan-based) elections or appointment by political actors. In times of greater polarization, governors and presidents who nominate judges, legislators who confirm judges, and voters who vote on judicial candidates are more apt to support or oppose judges on the basis of partisan affiliation or cues. Second, driven in part by selection mechanisms, polarization may be reflected in the decisions that judges make, especially on issues that divide people politically, such as abortion, guns, or affirmative action. The Supreme Court, for example, often divides along party and ideological lines in the most prominent and highly contested cases. Those ideological lines now overlap with party as we enter a period in which all the Court liberals have been appointed by Democratic presidents and all the Court conservatives have been appointed by Republican presidents. Third, increasingly polarized judicial decisions appear to be causing the public to view judges and judicial decision making (at least on the US Supreme Court) through a more partisan lens. Fourth, polarization may affect the separation of powers, by empowering courts against polarized legislative bodies sometimes paralyzed by gridlock. The review concludes by considering how increased polarization may interact with the judiciary and judicial branch going forward and by suggesting areas for future research.
两极化与司法机构
美国政治部门和公民之间日益加剧的两极分化影响到州和联邦法官的选择、工作、看法和相对权力,包括美国最高法院的法官。过去几十年美国的两极分化至少在四个方面对美国司法系统产生了影响。首先,两极分化影响司法选择,无论选择方法是(有时是基于党派的)选举还是由政治行为者任命。在两极分化加剧的时代,提名法官的州长和总统、确认法官的立法者以及对司法候选人投票的选民更倾向于基于党派关系或线索来支持或反对法官。其次,在选择机制的部分推动下,两极分化可能反映在法官做出的决定中,特别是在堕胎、枪支或平权行动等政治上分裂的问题上。例如,最高法院在最重要和最具争议的案件中经常因党派和意识形态而分裂。当我们进入一个所有法院自由派都由民主党总统任命,所有法院保守派都由共和党总统任命的时期时,这些意识形态路线现在与党派重叠。第三,日益两极化的司法判决似乎导致公众通过更偏向党派的视角来看待法官和司法决策(至少在美国最高法院)。第四,两极化可能会影响三权分立,通过赋予法院权力来对抗两极化的立法机构,这些立法机构有时会因僵局而瘫痪。该审查最后考虑了日益加剧的两极分化如何与司法和司法部门相互作用,并提出了未来研究的领域。
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