Duke Law Journal
A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. 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. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative Justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal Justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to "rank" Justices in terms of the extent to which their voting patterns are politicized. 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. Each of these solutions runs into significant problems, though the evidence suggests that mixed panels would greatly reduce politicized voting. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials, including members of regulatory commissions, show some kind of politicized division or bias. In multiple areas, politicized voting might be reduced through disclosure of existing patterns, through doctrinal changes, or through institutional change.
Thomas J. Miles & Cass R. Sunstein, "Depoliticizing Administrative Law," 58 Duke Law Journal 2193 (2009).