Judicial Politics in Polarized Times
Judicial Politics in Polarized Times
Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, Thomas M. Keck argues that, while each of these stories captures part of the significance of judicial politics in polarized times, each is also misleading. Despite judges’ claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges “tyrants in robes,” undermining democratic values by imposing their own preferences. Just as often, judges and the public seem to be pushing in the same direction. As for the argument that the courts are powerless institutions, Keck shows that their decisions have profound political effects. And, while advocates on both the left and right engage constantly in litigation to achieve their ends, neither side has consistently won. Ultimately, Keck argues, judges respond not simply as umpires, activists, or political actors, but in light of distinctive judicial values and practices.
“This is a robust, measured, and ultimately very persuasive book that places judicial review in the United States in context, insisting—and providing compelling evidence to support—the conclusion that judicial review is neither savior nor threat. It is, instead, a vital and still-important cog in our government machinery. Judicial Politics in Polarized Times could not be more timely, and I have no doubt that it will not only be a starting point for conversations about whether or not judicial review has a place in the American political system but actually help us move forward from that debate.”
Gordon Silverstein, Yale Law School
"Keck explores litigation surrounding some of today’s most contentious issues—gay rights, abortion, affirmative action, and gun rights. In doing so, he demonstrates that judicial decisions on these topics are part of—rather than antithetical to—democratic politics. Courts, Keck shows, are rarely imposing minority viewpoints on unwilling citizens and their elected representatives. Instead, courts are simply part of a broader system of push-and-pull, in which policy develops at multiple levels of government, across branches, and through a variety of mechanisms. Keck reorients our analysis to yield a more textured—and ultimately more realistic—picture of the role of courts and litigation today."
Douglas NeJaime, University of California, Irvine, School of Law
"A data-rich study of the complex and fascinating interplay between court decisions and movements for and against policy change in four politically polarized areas. The result is a provocative challenge to long-held and deeply cherished arguments for and against judicial review."
Gerald N. Rosenberg, University of Chicago
“Keck provides an important and timely discussion of judicial politics in this era of political polarization. . . . The book is incredibly detailed, . . . and Keck focuses on the leading issues of today’s political discourse, such as gay rights and gun control, which helps make his argument more persuasive. . . . Highly recommended.”
"Drawing on a sweeping survey of litigation on abortion, affirmative action, gay rights, and gun rights across the Clinton, Bush, and Obama eras, Keck argues that, despite judges’ claims, actual legal decisions are not the politically neutral products of disembodied legal texts. But neither are judges 'tyrants in robes,' undermining democratic values by imposing their own preferences. Ultimately, Keck concludes, judges respond not simply as umpires, activists, or
political actors, but in light of distinctive judicial values and practices."
Law and Social Inquiry
“In its comprehensiveness, its rigorous impartiality, and its careful, nuanced consideration of important normative questions about the role of courts in the contemporary United States, Keck’s book is model scholarship on judicial politics, worthy of the highest praise.”
Political Science Quarterly
“Keck offers an insightful analysis of partisan politics and the judiciary in polarized times. . . . [His] analysis and research are balanced. And his discussion sheds light on what drives the constant onslaught of difficult culturally-charged lawsuits. . . . Those interested in the judicial-appointment process and the problems with partisan judging, those handling cases in the courts studied, and those who want to know more about hot-button issue litigation, will find this book extremely useful. I highly recommend it.”
Michigan Appellate Practice Journal
Table of Contents
Introduction Three Stories about Courts
Part I Rights on the Left, and Rights on the Right
One Rights on the Left
Two Rights on the Right
Part II Courts, Democracy, and Policy Change
Three Are Judges Umpires?
Four Are Judges Tyrants?
Five Are Judges Sideshows?
Conclusion Judicial Politics in Polarized Times
Appendix A Coding Procedures for Polarization Analysis
Online at /sites/keck /
Appendix B Judicial Decisions Coded for Polarization Analysis
Appendix C Congressional Votes Coded for Polarization Analysis