Federal Courts, State Courts and Civil Rights: Judicial Power and Politics (Review Essay of Daniel R. Pinello, Gay Rights and American Law)

Abstract

Daniel Pinello, a lawyer and political scientist, studied every appellate decision in a gay rights case in either federal or state court, approximately 400 in all, between 1981 and 2000. The data he amassed point to rampant anti-gay prejudice among judges. Pinello's first major conclusion is that federal courts not only were less receptive than state courts to gay rights claims, but that they were systemically hostile. This pattern is directly traceable to the political party affiliation of the President who appointed the judges in each given case. This question takes the reader directly into the longstanding debate on institutional parity: whether state court systems are on par with the federal courts in providing the appropriate level of protection for constitutional rights. Pinello's study, together with other scholarship, punctures the longstanding belief that the federal judiciary with its guarantee of lifetime tenure is less susceptible than state courts to ideological manipulation. What in the past has been an accepted starting point for debates over whether parity is a myth, as Burt Neuborne argued, now amounts to a myth of insulation.

Pinello's second institutional claim is that the personal policy preferences of judges control the outcome of cases almost as much as law does. GAY RIGHTS AND AMERICAN LAW seeks to build upon what is now a substantial body of empirical literature on the question of whether judges' personal beliefs have a greater impact on judicial decisions than law does. Pinello's goal is to enrich the political science discussion with consideration of a bigger pool of possible variables that could predict judicial bias. Serious problems, however, stem from the nature of empirical work and from Pinello's approach. Many of the same factors that make gay rights cases so fertile for investigation of the relationship between law and politics also make them exceedingly difficult to fit into an empirical model. The litigation context may involve abstract principles of constitutional law or the particulars of a custody case or the technicalities of immigration law. It is not even always clear which decisions should count as "gay rights" determinations. Nor is it necessarily obvious whether to code certain cases as wins or losses. Pinello did not create these shortcomings in the method, but unfortunately he also did not entirely succeed in surmounting them. Most significantly, such a study cannot measure the structures of consciousness that shape not only what courts decide, but what lawyers argue, which cases they elect to bring, whether they appeal, and the terms upon which cases are litigated and decided.

The third important feature of GAY RIGHTS AND AMERICAN LAW consists of questions left both unasked and unanswered, and these are in many ways the most interesting. Lying just beneath the surface of its text, this book poses questions about the relationship between claims of liberty and equality based on sexual orientation and a series of structural constitutional questions. The recent history of gay rights law provides a context not only for a comparison between federal and state courts, but also for understanding the evolving relationship between judicial and legislative branches in the development of civil rights laws. How judges interact with legislatures and the extent to which statutes, rather than case law, dominate the field are both important. Likewise, the tension between the executive and legislative branches over appointments to the federal bench is beginning to intersect with the politics of gay rights, and is likely to do so increasingly in the future, which will lead to heightened debates over the extent to which views on homosexuality affect a candidate's fitness to serve in the judicial branch. In my view, the most fascinating pieces of the puzzle of how and why the courts have shifted in their treatment of sexual orientation law are the ones missing from this book.

Keywords: discrimination, civil rights, federal courts, gay rights

JEL Classification: K10