A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized in both the federal courts of appeals and the Supreme Court. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for “arbitrariness” on questions of policy and fact. The empirical results raise an obvious question: what might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of “debiasing” that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias.
Keywords: ideology; federal courts of appeals; supreme court; administrative agencies; judicial review; deference; interpretations of law; questions of policy and fact; self-correction; debiasing; voting rules; mixed panels
Chapter. 12026 words.
Subjects: Social Psychology
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