pageok
pageok
pageok
How the Justices Vote:
In Presidential primaries and elections, that is, not in cases.

  I personally find the second Justice Harlan's approach the most commendable. Justice Harlan refused to vote in Presidential elections to make it harder to mentally pick sides as to which Presidents he favored and which he did not. I'm probably in the minority in applauding this, but I think it sends just the right signal about how Supreme Court Justices should approach the other branches.
Chris Smith (mail):
This is an interesting viewpoint.
Does one feel that voting is a civic duty?
Are there exceptions to every rule?
Is a Justice an example of someone who should minimize the effect of day-to-day political concerns on work?
Should the previous idealistic statement be ignored on the grounds that you can't filter out bias, and instead should embrace it?
I voted my conscience this morning, for a candidate no longer officially in the race, so apparently I support the idealistic exception of Judges being truant at election time.
2.12.2008 2:41pm
tvk:
I think Justice Harlan's approach is admirable in a way; but of course we generally want people to discharge their "civic responsibility" to vote (Ilya would probably go further on this). If a seat on the Supreme Court requires you to stop voting (even as a politeness matter), it would be problematic. Doesn't your position suggest that Executive branch officials (at least the civil service ones) should not vote in legislative branch elections to avoid politicizing the exercise of their own powers?
2.12.2008 2:43pm
TerrencePhilip:
Remember the scene in 'The Brethren' when Harlan told his nonvoting status to Scotty Reston who looked puzzled and then said to the effect, "That's funny. All of us at the New York Times vote." Classic.
2.12.2008 2:55pm
KeithK (mail):
I'd prefer a justice who could clearly separate his policy choices, expressed via his votes, from what the law requires.
2.12.2008 2:59pm
ChrisIowa (mail):
It would be better for a justice to vote, acknowledge his political prejudices and tendencies, and attempt to be fair regardless. Not voting doesn't minimize political tendencies it only hides them, from the public if not from the Justice himself.
2.12.2008 3:00pm
Thoughtful (mail):
But ChrisIowa...

We have a secret ballot in the USA. So voting, per se, also hides a justice's "political prejudices and tendencies" from the public.

Are you suggesting that it is not enough for a Justice to vote, but that s/he must also publicly announce how s/he voted???
2.12.2008 3:04pm
Crunchy Frog:
It would behoove Justices to refrain from joining a political party (and therefore not vote in primaries), but voting in the general election should certainly remain secret.
2.12.2008 3:17pm
Charlie (Colorado) (mail):
Once upon a time, it was considered dishonorable for military officers to vote, because they would necessarily find themselves serving under a CinC against whom they'd expressed a vote.
2.12.2008 3:29pm
dll111:
Not only would Harlan not vote because of this, but he wouldn't even clap at the State of the Union.
2.12.2008 3:47pm
Gil Milbauer (mail) (www):
This is silly. It's all symbolic.

The votes of Justices will not change the election outcome, and refraining from voting doesn't keep thinking people from mentally picking sides.

It just doesn't matter.
2.12.2008 4:55pm
Wahoowa:
dll111:

I think the "not clapping" survives to this day with most, if not all, SCt justices. At least from what I remember the past few years.
2.12.2008 5:03pm
dcuser (mail):
I seem to remember Justice O'Connor once saying that she did not vote in presidential elections for reasons similar to Justice Harlan's.
2.12.2008 5:05pm
ChrisIowa (mail):

We have a secret ballot in the USA. So voting, per se, also hides a justice's "political prejudices and tendencies" from the public.


Except for a primary where a party is (usually) declared and the party registration remains a part of the registration. Gives a pretty good clue as to the General Election.

I don't think there's a way for a justice, having voted, to keep his vote secret from himself. One would hope for a better sense of self-awareness from a judge.
2.12.2008 5:11pm
DG:
One of the things that always impresses me is the sight of Supreme Court justices, sitting quietly during state of the union speeches, never clapping or showing any sign of agreement or disagreement, while everyone around them is freaking out. If justices dont want to vote, more power to them.
2.12.2008 5:26pm
OrinKerr:
Gil Milbauer writes:
This is silly. It's all symbolic.

The votes of Justices will not change the election outcome, and refraining from voting doesn't keep thinking people from mentally picking sides.

It just doesn't matter.
Gil, are you sure? Justice Harlan is widely considered the Justice on the Warren Court who was least likely to approach the law through a political lens. Just a coincidence, in your view?
2.12.2008 5:51pm
common sense (www):
There is a school of thought that people in the military should not vote. I personally think its silly for the same reasons. Pretending not to have an opinion is self-delusional. At least if you acknowledge an opinion, you can work to keep it out of places where it doesn't belong.
2.12.2008 6:08pm
A.S.:
I think it sends just the right signal about how Supreme Court Justices should approach the other branches

Hmmmm. The Executive and Legislative branches vote with respect to the Judicial Branch. Why shouldn't the Judicial Branch vote with respect to Executive and Legislative Branch? Seems to me that turnabout is fair play.
2.12.2008 6:32pm
Gil Milbauer (mail) (www):
Orin,

Not a coincidence, but no causal relationship either. Some people are more likely to apply a political lens, and some are less likely to. I highly doubt that voting would make a big difference.

Do you think he wouldn't have been able to judge objectively because he had cast a vote?

I agree that publicly declaring a preference might make it hard to avoid justifying the claim later, but I doubt that a private vote would do much more than a private consideration of one's preference would.
2.12.2008 6:47pm
Mike& (mail):
I wonder how Harlan would have voted in Bush v. Gore? It's interesting that, inn Bush v. Gore, each Justice presumably voted consistent with his or her electoral vote. Coincidence?
2.12.2008 7:08pm
OrinKerr:
Do you think he wouldn't have been able to judge objectively because he had cast a vote?

I doubt that, but that was never Harlan's claim. As I wrote in the post, "Justice Harlan refused to vote in Presidential elections to make it harder to mentally pick sides as to which Presidents he favored and which he did not."

Do I think that declining to vote makes it harder to mentally pick sides? Yes, I do: It sets a tone, an expectation, of neutrality.
2.12.2008 7:09pm
Gil Milbauer (mail) (www):
Well, perhaps some people are of the type that they can be intelligent, informed citizens during a long election cycle and not mentally pick sides, and others (the vast majority) will pick sides.

I don't think deciding not to vote will have much of an effect on whether people will mentally pick sides.

I don't pick sides because I intend to vote. I pick sides because I have opinions and preferences and it's really obvious to me when a candidate supports or opposes what I value.

If this didn't happen to Harlan (I doubt it), I can only guess that he didn't have strong political convictions, or he was ignorant of the candidates' positions. Neither makes me think well of him.

It's admirable to be able to judge on the facts and to exclude personal favoritism from one's consideration. But, I suspect that it's a mistake to think that voting has much to do with it.
2.12.2008 7:41pm
OrinKerr:
Gil,

Justice Harlan was a famous Supreme Court Justice; I don't see the need to "guess" -- incorrectly -- that he was ignorant or had no views of his own. Perhaps the referee metaphor is helpful here. If I know someone is going to be the referee of a sports event, I don't want that referee to take a view on which team he wants to win. The referee presumably will be someone who would have a favorite team if he weren't a referee; he loves sports, and he knows tons about the teams. But I want him to take a different approach when he becomes a ref. I want him to see that he's in a job in which he's supposed to be neutral, not on a side. Justice Harlan took that idea extremely seriously, and I applaud him for it.
2.12.2008 7:55pm
Gil Milbauer (mail) (www):
By the way,

By saying that it's just symbolic, I didn't mean that it has no value. I agree that a tone of neutrality is a good thing. Since a Justice's vote in a presidential election is incredibly unlikely to be decisive, it's probably a reasonable policy for one to take. I suspect that such things have an effect on respect for the Court (and that they have better ways to spend their time).

I just don't believe that this gesture actually does much to cause a judge to be neutral.
2.12.2008 7:56pm
alias:
I just don't believe that this gesture actually does much to cause a judge to be neutral.

Perhaps not, but I'd take Justice Harlan's word over most others about what he thinks helps him to discipline his thinking.
2.12.2008 8:27pm
Dave N (mail):
It's interesting that, in Bush v. Gore, each Justice presumably voted consistent with his or her electoral vote. Coincidence?
But in Bush v. Palm Beach County Canvassing Board the vote was 9-0. And 7 justices found constitutional problems with the recount procedure the Florida Supreme Court ordered in Bush v. Gore though only 5 voted to stop the recount.

Of the two who found a constitutional violation but would not vote to stop the recount, I think I can safely assume that Justice Breyer probably voted for Al Gore over George W. Bush. Justice Souter? I am not so sure either way.
2.12.2008 8:33pm
OrinKerr:
Dave N,

I vaguely recall from the various histories of Bush v. Gore than Breyer and Souter agreed to "find" constitutional problems with the recount procedure only because they were trying to strike a middle ground to get Kennedy's vote. When Kennedy didn't join on, it was too late to rewrite their opinion. I don't know if it's true, obviously, but that's what I've read.

(I should add that I thought the majority was off its rocker in Bush v. Gore. The Court should have denied cert, and left the question of state law for the state courts.)
2.12.2008 8:48pm