Why is it just "lazy and non-falsifiable" thinking to believe judicial review is just politics or values in a different guise?

Question

1. Does non-falsifiable mean this and this?

2. Please see subject.

      Fifth, and finally, always remember that legal reasoning matters. It is true that normative outlooks on a variety of matters shape approaches to judicial review. It is also true that different judges may approach the same ground of review in different ways. There is also no doubt that many decisions will have important political implications. But none of this is to say that judicial review is just politics or values in a different guise—to say that is just to engage in lazy and non-falsifiable thinking. The point of all of the above is that the key in getting to grips with this case law is to get to grips with the legal detail and see how that detail shapes the grounds of review of their application.

Mark Elliott. Public Law (3 ed 2017). p 554.

Answer 1

The author, perhaps unsurprisingly for a law professor, is more or less saying, 'Do your homework'. One might have the opinion that judicial review is just the unelected branch of government overriding decisions of the executive (or their officials). If so, that's rather undemocratic. If you believe that judges are merely applying their preconceived opinions in coming to a ruling, then there is no point studying it in detail (hence lazy).

Falsifiability is a useful property in a theory. If I believe that there is no point studying the rulings because judges are just pulling answers out of the air, then there isn't any evidence you can provide to convince me otherwise. I might be correct in my belief but it isn't one based on evidence.

What the author is arguing is that, if you're a student of the law, you need to study rulings in detail and look at the statutes, authorities and precedents quoted. Only then can you have an informed opinion on whether a more or less conservative (or whatever) judge might have come to a different ruling.

Answer 2

Judicial decision making, for example, in the course of judicial review of statutes, is less partisan than political decisions by a large margin (empirically), even though many cases have a partisan angle, but it is also not free of partisan influence.

Some issues decided by courts are handled in a more partisan fashion than others.

For example (citing statistics I gathered from primary sources in 2006):

[R]oughly 84% of [U.S.] Court of Appeal decisions (a sample year) are unanimous. This is consistent with a finding that 71% of U.S. Supreme Court decisions were unanimous from 1889 to 1959, that in a recent sample year 87% of California intermediate court of appeals decisions were unanimous, and that in the Missouri Supreme Court unanimous decisions are reached 98.5% of the time. Thus, while partisanship matters and influences results even in non-unanimous decisions, there is wide consensus on many legal issues.

About 91% of cases in the Colorado Court of Appeals are resolved with unpublished opinions or dismissals, which are generally unanimous. In addition, a large share of the 9% of Colorado Court of Appeals cases that are decided with published opinions are unanimous. Good statistics on the exact number of non-unanimouos published opinions are unavailable, but it is safe to say that the number probably less than a third of all cases. In other words, less than 3% of cases appealed to the Colorado Court of Appeals are decided on a non-unanimous basis.

Somewhere between 65%-75% of Colorado Supreme Court decisions are unanimous (it is hard to provide an exact percentage with certainty, as the only statistics that are easily available on the total number of dissenting opinions and some cases have more than one dissenting opinion), which is not too surprising because the state supreme court handles only the hardest cases.

It is also important not to exaggerate the role of the U.S. Supreme Court in judicial review which is a power held by a U.S. courts from a lowly limited jurisdiction village court to a state supreme court or U.S. Court of Appeals. Decisions on constitutionality are always made in the first instance in trial courts and the U.S. Supreme Court is only vary rarely the last word in a case and only rarely has any role in a case.

Appealing parties may ask the entire Court of Appeals in a circuit to second guess the decision of an individual panel (or in the 9th Circuit, a much larger panel of the court rather than the entire court). This is called an "en banc" review of a decision. Thus, a case can be appealled from a trial court to a three judge panel of the Court of Appeals, and then receive "en banc" review, and then go to the U.S. Supreme Court. [The en banc review step is optional.] En banc review, like U.S. Supreme Court review of a Court of Appeals decision, is discretionary and rarely granted. . . .

In 2002 in the 9th Circuit, for example, 801 published opinions were issued out of the thousands of cases that came before the court, of which about 40 were considered for en banc review, and 18 received en banc review (which in the 9th Circuit is actually a large panel of the court rather than the entire court). This was just 2% of cases heard on the merits.

En banc review is less frequent in absolute numbers, since the overall caseload is smaller, in other circuits. In 1999, a fairly typical year, only 94 cases in the entire federal system receive en banc review, which makes this level of review similar in frequency to, if not less common than, U.S. Supreme Court review. The vast majority of Court of Appeals cases decided on the merits (probably about 95% nationwide) are never even considered for en banc review.

Less than one case in a thousand filed in a U.S. Court of Appeals is reversed in en banc review or in review by the U.S. Supreme Court.

Colorado Appellate Courts often get the last word, as well. In the most recent fiscal year for which figures are available (2005-2006) there were 2,622 appeals concluded in the Colorado Court of Appeals. In that same year 868 petitions in certioriari (i.e. appeals from Colorado Court of Appeals cases) where made to the Colorado Supreme Court, and 78 cases were decided on the merits with written opinions (a few of which would be in original proceedings direct from trial courts, such as water law cases).

A small number of cases may have been decided on the merits without a written opinion, and in a small number of cases, more than one petition for certiorari was resolved in a single opinion. Of course, some Colorado Supreme court cases affirm Court of Appeals rulings.

Thus, about a third of Colorado Court of Appeals cases are appealed to the Colorado Supreme Court, but the Colorado Supreme Court actually considers on the merits only about 3% of Colorado Court of Appeals cases, and probably reverses no more than 2% of those decisions.

The percentage of Colorado Supreme Court cases considered on the merits by the U.S. Supreme Court is on the order of 1%. Fewer than one in five thousand cases filed in the Colorado Court of Appeals will ultimately be reversed in the U.S. Supreme Court.

Other studies have shown that there are "panel effects" in appellate courts that cause appellate panels with a mix of partisan affiliations or ideologies to make more moderate decisions than appellate panels with all judges on the panel from one faction.

Partisanship is particularly weaker below the U.S. Supreme Court because all other courts are bound to follow the precedents set by higher courts.