The rule of law has historically held a revered position among classical liberals. Although the term gained traction through the writings of British jurist A. V. Dicey, its roots run far deeper. In the realm of common law, the rule of law is characterized by three fundamental principles:*
- A prohibition against arbitrary government power
- Universal applicability of the law, binding every individual—regardless of social standing—under the same legal framework
- Judicial discovery of law through the resolution of cases brought to the courts
The third principle often ignites debate. Why should judges have the authority to define the law? If judicial decisions evolve into precedents, do judges not merely replace politicians in their role? Why should judges merit our respect when classical liberals express skepticism towards political figures? In colloquial terms, are judges not just “politicians in black robes?”
These inquiries are indeed valid. Thankfully, public choice theory provides a lens through which we can analyze these dynamics. The reality is that judges, like any other individuals, are influenced by incentives that shape their actions.
In their 2006 publication Judge and Jury: American Tort Law on Trial, economists Eric Helland from Claremont McKenna College and Alex Tabarrok from George Mason University delve into how the incentives confronting judges, juries, and court officials impact judicial outcomes. A significant finding reveals that judicial elections often sway tort awards; judges facing elections tend to grant higher claims to plaintiffs compared to their lifetime-appointed counterparts. When judges are perceived as political figures, they tend to behave as such. Conversely, when viewed as impartial arbiters of law, they often fulfill that role.
Judicial processes vary across states, but federal judges are generally appointed. Media discussions frequently emphasize the president who nominated a judge (e.g., “’That is unconstitutional retaliation and viewpoint discrimination, plain and simple,’ noted the judge, an appointee of former President Barack Obama. Or “Rodriguez, nominated by Trump during his first term, ruled that the government cannot detain the plaintiffs solely based on the Alien Enemies Act.”). Discussions regarding Supreme Court rulings often reflect on the justices’ ideologies. Interestingly, these ideologies appear to have minimal impact. Federal court decisions in America tend to exhibit remarkable consistency; when judges are appointed for life (or for good behavior), they usually arrive at consistent rulings. In contrast, elected judges often yield to public sentiment, resulting in less predictable outcomes.
Additional incentives also play a role. Appeals courts and the Supreme Court possess the authority to overturn lower court decisions—a scenario judges prefer to avoid. In extreme cases, judges can even face impeachment. Consequently, the prevailing incentives encourage judges to maintain consistency rather than lean into political tendencies.
Nevertheless, there may be instances where ideology does matter. Supreme Court decisions could reflect ideological beliefs more prominently than those in lower courts, primarily due to the unique nature of the cases they adjudicate. The Supreme Court addresses cases lacking clear legal guidance—those ripe for varying interpretations. Unlike the courts that address every legal matter, the Supreme Court selectively considers ambiguous cases. As such, ideology may shape outcomes, depending on the justices’ perspectives. For example, Chief Justice Roberts prioritizes consensus, resulting in a significant number of unanimous decisions. In the 2022 term, nearly half (48%) of the Court’s decisions were unanimous.
Thus, classical liberals like me place considerable trust in the judiciary, largely due to the incentives they navigate. Were those incentives altered, our views of judges would undoubtedly shift. It is essential to acknowledge, however, that courts do not always make the right call. The U.S. has witnessed numerous rulings that seem egregiously erroneous: Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu v. United States, and Wickard v. Filburn, to name a few. Some have been overturned (such as Dred Scott through constitutional amendment, and Plessy by Brown v. Board); others remain as unyielding precedents, either enforced (like Wickard) or disregarded (as in the case of Korematsu).
Incentives, while not a form of mind control, can sometimes be influenced by ideology. However, generally speaking, the incentives judges and justices face diverge significantly from those encountered by politicians, rendering it unjust to liken them to mere politicians donned in judicial robes.
For further exploration, I recommend Federalist 78, where Alexander Hamilton articulates arguments parallel to those presented here. Additionally, GMU law professor Todd Zywicki has penned a compelling paper discussing how the doctrine of stare decisis can reshape the incentives for litigants and judges (particularly in Section III.A).
*For a classic examination, refer to AV Dicey’s Law of the Constitution, Chapter IV. Another insightful read is Bruno Leoni’s Freedom and the Law. For an overview of the evolution of Common Law, consider Maitland & Pollock’s History of English Law Before the Time of Edward I and Plucknett’s A Concise History of the Common Law.
