Adam B. Cox & Thomas J. Miles (University of Chicago - Law School) have posted Judicial Ideology and the Transformation of Voting Rights Jurisprudence (University of Chicago Law Review, Vol. 75, 2008) on SSRN. Here is the abstract:
For two decades, the doctrinal test laid out in Thornburg v. Gingles has been the centerpiece of vote dilution litigation in the United States. Gingles defined a sequential, two-part framework combining a set of rule-like preconditions to liability with a standard-like inquiry into the totality of the circumstances. Despite this elaborate framework, emerging empirical work shows that political ideology connects closely with how judges have decided vote dilution cases; Democratic appointees have proven much more likely than Republican appointees to favor liability under Section 2 of the Voting Rights Act. This work raises the question of what role the Gingles framework really plays in voting rights litigation. More basically, it raises the fundamental question of whether legal doctrine actually constrains judicial decisionmaking. Using a dataset of every Section 2 decision issued since Gingles, this Article explores these twin puzzles. It finds substantial evidence that legal rules are indeed more ideologically constraining than standards. Ideological divisions are much more pronounced in the standard-like second step of Gingles than under the more rule-like preconditions. Moreover, the Article shows that the doctrinal dynamics of vote dilution litigation have changed dramatically over the past two decades. As the representational and political implications of vote dilution claims have shifted, the Gingles factors that both judges and scholars claim are central to the liability inquiry have become far less important. Courts' sharp movement away from the centrality of the Gingles factors amounts to a largely unrecognized second transformation of voting rights litigation.
And from the paper:
Our findings provide support for two of the central theoretical intuitions about rules and standards. First, they indicate that rules indeed may, to a greater extent than standards, limit discretion and suppress ideological disagreements among judges. Second, they suggest that the flexibility preserved by standards may make it easier for adjudicators to respond to changing circumstances over time.
These findings have important implications for the long‐standing debate about whether (and how) legal rules actually constrain judges. But our results also lead to a number of specific insights about the operation of the Voting Rights Act and the protection of minority voting rights. The doctrinal structure that Justice Brennan created in Gingles may well have been intended to encourage judicial intervention in the wake of Congress’s amendments to Section 2. By establishing a set of relatively objective preconditions to liability, Brennan gave lower courts a steadier foothold for liability findings. Nonetheless, as these preconditions over time became a potential threat to substantive minority representation and the Democratic party, Brennan’s two‐stage analytic framework became more meaningful as a safety valve against liability than a spur to it. This safety valve may have allowed courts to respond more easily to changing social conditions and political consequences. But the cost has been the growing irrelevance of the Gingles preconditions themselves. Today the preconditions are surprisingly disconnected from the liability determination. Liability follows from a finding that the preconditions are satisfied only slightly more often than it would follow from a coin flip.
All this suggests that the Supreme Court’s effort to provide an objective test for identifying minority vote dilution has been largely unsuccessful.115 The lack of success is important for ongoing debates about the structure of the Voting Rights Act. Recently, both Congress and the Supreme Court have confronted legal issues relating to how rule‐like the Act should be. In 2006, Congress amended Section 5 of the Act to make more rigid the test for measuring minority political opportunity. 116 Similar changes may soon follow for Section 2. A case currently pending before the Supreme Court raises the question of whether prong 1 of the Gingles preconditions (which requires minority voters be “sufficiently numerous” in the area where they claim a violation) should be made even more rule‐like—by requiring minority voters to constitute at least 50 percent of the voting age population of the district whose creation they seek under Section 2.117 Our results show that these changes might help suppress ideological disagreements among judges, even if these disagreements continue to beset the public conversation about voting rights. But to the extent changes to Section 2 or Section 5 do cabin ideological disagreements, they may also make it more difficult for lower courts to adjust the Act to changing social conditions.
This paper is important on its narrow topic, but even more significant for its attempt to integrate theoretical constructs derived from general jurisprudence into the judicial behavior literature. Highly recommended! Download it while its hot!
