Tuesday, June 19, 2007

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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