8 - The Tug of War, Polarization, and Judicial Conflict

Summary

In Chapter 8, we turn to a slightly different question, but one that has occupied much public interest – the topic of judicial polarization. Looking at the federal courts, we document how our framework of the judicial tug of war can explain ideological polarization in the courts as politicians attempt to replace judges with ones who are more ideologically compatible. In addition, we show that greater polarization leads to greater judicial conflict, including more dissenting opinions and increased intra-court uncertainty. To this extent, the American judiciary has followed the general trend in American politics toward increased partisan conflict and polarization, facilitated by the tension between political and legal elites.