Abstract and Keywords
Judicial behavior refers to what courts and judges do. The extent to which judges choose to move beyond their policy preferences divides the field of law and politics. Normatively, influences over what judges ought to do include evaluating legal rules such as precedent or legislative intent in an attempt to find the best answers to cases before them. Thus, in addition to the judges' own preferences, legal influences should be useful in explaining judicial behavior, though the extent to which it does undoubtedly varies throughout the judicial system. Judicial politics can be law or politics, but frequently it is both, with the mixture dependent on the type of court and the context of the case. This article examines judicial behavior, stare decisis, text and intent, judges' attitudes, the behaviour of the U.S. Supreme Court, judicial decisions in the lower courts, and separation of powers.
What do judges do and why do they do it? The answers to these questions fall within the realm of judicial behavior, the study of which consists of systematic, empirical, theoretically based attempts to explain what courts and judges do. It is open to theoretical approach—legal, strategic, institutional, attitudinal, whatever—but excludes descriptive doctrinal approaches (i.e. what the law is), prescriptive normative approaches (what the law should be), and purely deductive formal approaches.1
So what then is it that judges do? Legal realists commonly assert that judges act like “single minded seekers of legal policy” (quoted in George and Epstein 1992, 325). Nevertheless, the extent to which judges choose to act in such a manner and the extent to which they can realize their goals by acting in such a manner is the subject of much debate. Thus, Gibson notes, “judges’ decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do” (1983, 7).
The extent to which judges choose to move beyond their policy preferences divides the field of law and politics. Normatively, influences over what judges ought to do include evaluating legal rules such as precedent or legislative intent, in an attempt to find the best answers to cases before them. Thus, in addition to the judges’ own preferences, legal influences should be useful in explaining judicial behavior, though the extent to which it does undoubtedly varies throughout the judicial system. (p. 276)
Table 14.1. A typology of judicial decision-making models on the merits
Source of influence
Text and Intent
Separation of Powers
Horizontal or Vertical Precedent
Similarly, strategic approaches deal with what is feasible for judges to do. Voting their sincere preferences may not, in many cases, further judges’ policy goals. Because courts do not make policy in isolation from judicial superiors or other branches of government, strategic judges must temper their decisions by what they can do or else risk being overturned.
These models can be usefully depicted according to the schematic in Table 14.1. Sources of influence include legislators and judges. When judges rely on previous judicial decisions, whether vertically from hierarchical superiors, or horizontally, from courts at their own level, they are following legal precedent. But, when judges follow their own (present) preferences, they behave consistently with their political attitudes. When judges rely on the preferences of the lawmakers of the statutes and constitutional provisions under consideration, they follow legal text and intent. But, when they defer strategically to the constraints imposed by current legislative majorities, they behave consistently with the separation-of-powers model.
Judicial politics can be law or politics, but frequently it is both, with the mixture dependent on the type of court and the context of the case.
1 Modeling Law
Modeling law causes practical difficulties: we must be able to measure it. The arguments against empirically modeling law come from two sources: those who lacked the requisite imagination (e.g. Segal and Spaeth 1993, 33), and those philosophically opposed to the idea on the ground that legal decision-making is nothing more than “a sincere belief that their decision represents their best understanding of what the law requires” (Gillman 2001, 486).
Thus, under the latter approach, virtually any decision can be consistent with the legal model; and any decision is consistent with it so long as the judge has sincerely convinced herself that the decision is legally appropriate. The most basic problem with this approach is clear: the model is not falsifiable. Thus, by accepted standards of scientific research, the model cannot provide a valid explanation of what judges actually do.
(p. 277) It is impossible to know whether judges believe they are judging in good faith. The extensive psychological literature on motivated reasoning suggests that plausible arguments are all that decision-makers need to create an overlap between prior views and a subjective belief in correct results (Braman 2006), suggesting that good faith will not be all that difficult to come by.
Thus, those interested in modeling law must hold judges to a higher standard than “a sincere belief” in the appropriateness of their decisions; legal modelers must show that law has an independent and measurable influence. This does not, however, require a deterministic or mechanical approach to judicial decision-making and is not much different than viewing law as a gravitational force on decision-making.
To determine the impact of law is not much different to determining the impact of other social phenomena. Simply put, judges’ decisions should change—not deter-ministically, but at the margins—as law changes, holding alternative phenomena constant.2 This is easiest to see in the case of vertical stare decisis, where the strategic implications can be quite complex, but the essence of testing them requires little more than determining how lower court decisions change as higher court decisions change after controlling for other relevant factors such as case characteristics and the preferences of lower court judges. For example, it would not suffice simply to show that lower courts became more conservative during the Burger and Rehnquist courts, because Republican appointees during this era undoubtedly made both the upper and lower courts more conservative.
1.1 Stare Decisis
Despite early research showing substantial noncompliance with Supreme Court decisions (see Baum 1978), recent evidence indicates that judges on lower courts follow the preferences of judges on higher courts (Benesh and Martinek 2002). Overtly noncompliant decisions by Court of Appeals judges are exceedingly rare.
Why judges so frequently comply is a matter of dispute. According to legalistic accounts, the overwhelming number of lower court decisions that the Supreme Court must oversee, and the very few cases it chooses to hear, means that lower court judges have little fear of reversal. And to the extent that judicial decisions are binary, overturned outcomes are likely to be no worse than if the lower court had done the higher court’s bidding in the first place. Thus judges presumably comply with the Supreme Court out of a belief that such behavior is legally appropriate (Cross 2005; Klein and Hume 2003). Strategic accounts, alternatively, argue that if judicial policy-making actually occurs over a continuous spectrum, the policy costs of reversal are real. Moreover, frequent reversal can limit the prospects for promotion. Since the likelihood of being reversed is a function of the lower court’s level of compliance, fear of getting overturned can lead to a “compliance cascade” (Cross 2005) whereby lower courts compete to avoid being overturned by pushing their decisions closer and closer (p. 278) to the preferences of the higher court (Songer et al. 1994; McNollgast 1995). Certainly, the Supreme Court strategically uses both its certiorari jurisdiction (Cameron et al. 2000) and citations to its own precedents (Hansford and Spriggs 2006) as a means of obtaining compliance from lower courts.
One potential way through these competing explanations is with a thought experiment. What would happen if Congress denied the Supreme Court appellate jurisdiction over an issue? The legal reliance on Supreme Court precedent would arguably be the same, but the fear of override would literally be driven down to zero. If the issue area were abortion, would conservative lower court panels continue to uphold such rights? My hunch is that in salient issues such as this, the answer is no. In less salient areas, my hunch is still no, but with considerably less certainty.
Although tests for vertical stare decisis demonstrate compliance, testing for the horizontal impact of precedent poses substantially more difficulty. Once again, the task is to see how judges’ behavior changes as law changes. Thus, we could try to determine how the behavior of Supreme Court judges changed on abortion rights following the massive change in law created by Roe v. Wade (1973). The problem, of course, is that we would be looking for this impact on the judges who created Roe. One way around this problem is to examine the impact of horizontal stare decisis on judges who dissented from the original ruling (cf. Gillman 2001). As Jerome Frank accurately stated, “Stare decisis has no bite when it means merely that a court adheres to a precedent that it considers correct. It is significant only when a court feels constrained to stick to a former ruling although the court has come to regard it as unwise or unjust” (United States v. Shaughnessy 1955, 719). This view equally applies to those who dissented on the original case but are faced with similar issues in subsequent cases. Thus, when Justice Stewart reversed his view in Griswold v. Connecticut (1965) and accepted the right to privacy in Eisenstadt v. Baird (1972), we have a prima facie case that stare decisis influenced the justice. Tests using this standard find that stare decisis influences the decisions of Supreme Court justices only about 10 percent of the time (Segal and Spaeth 1996; cf. Brenner and Stier 1996; Songer and Lindquist 1996), but it is worth noting that this percentage nearly doubles for the least salient of the Court’s decisions (Spaeth and Segal 1999), suggesting the contingent nature of stare decisis, even within a court.
Alternatively, Richards and Kritzer (2002) proposed a “jurisprudential regime” approach to modeling law. This approach begins with fact-pattern analysis—using case stimuli to predict judicial decisions—to argue that certain cases create jurispru-dential regimes that shift the manner in which the Supreme Court treats those stimuli. They show that the impact of different case stimuli, such as the level of government involved or the identity of the speaker, on the likelihood of a liberal decision vary before and after Grayned v. City of Rockford (1972), the First Amendment decision requiring content neutrality. Although the impact of First Amendment case stimuli vary significantly before and after 1972, the results also show that they vary before and after 1960, 1961, 1962 etc.; and the differences are higher in the years before Grayned than in the year of Grayned. Additionally, the authors do not test alternative functional forms for the change. That a case fact had a greater impact on the Court’s (p. 279) decision after 1972 than before 1972 does not indicate that the change occurred in 1972, and indeed, it does not indicate that there was a discrete change at any time point. The impact of these case stimuli could be changing steadily over time, rather than abruptly, as required by their theory. Nevertheless, with further testing, this original line of research could readily answer questions about horizontal stare decisis that clearly need to be answered.
1.2 Text and Intent
Assessing the impact of text and intent, like the impact of precedent, poses difficulties, but not insurmountable ones. At least for text, we can start with the notion that judicial behavior should change as the text of law changes. This sounds trivial, but judicial behavior does not necessarily conform to obvious expectations.
Testing for the impact of text at the federal level poses certain problems, since many of the laws we are interested in have not changed in over 200 years. This problem makes the states a more natural laboratory to study such influence, and we could examine the impact of text either diachronically or cross-sectionally. Neither approach is without problems. Diachronically, judicial behavior should change over time as statutory or constitutional text changes, and cross-sectionally, judicial behavior should change over space as different jurisdictions have different laws.
Testing the impact of text across jurisdictions, Baldez, Epstein, and Martin (2006) find the presence of a state-level Equal Rights Amendment does not influence the likelihood of ruling in favor of litigants pressing sex-discrimination claims.3 Moreover, there appears to be no impact of educational rights provisions in state constitutions on the decision of state supreme courts to strike down unequal funding provisions for public schools (Lundberg 2000). But constitutional rights to privacy significantly increase the likelihood that state supreme courts will nullify anti-abortion statutes (Brace, Hall, and Langer 1999).
Cross-sectional analyses cannot be conducted at the federal level, and diachronic analyses will not be very helpful for the sort of constitutional provisions that interest public law scholars. How, then, through a priori measures and falsifiable tests can we systematically assess, text and intent as potential explanations for the justices’ behavior? One possibility is to measure legal arguments rather than “law.” If, for example, Justice Scalia is truly a textualist, he should be more willing to support a litigant who makes an textual claim—e.g. an undisputed claim that the plain meaning of the statutory text supports his side—than a litigant who makes no such claim, ceteris paribus.
In fact, while Justices Scalia and Thomas support liberal textual claims in less than half of the cases (45.3 and 47.6 percent respectively), these numbers are higher than (p. 280) their support for liberal parties lacking textual claims (Segal and Howard 2002). Similarly, Scalia and Thomas are more likely to support defendants’ rights in criminal-justice disputes when those rights are supported by originalist arguments (Barkow 2006). For legislative or constitutional intent, though, Segal and Howard (2002) find little evidence that the justices respond to such claims.
Overall, though, these and other approaches have led to some conditional positive findings on the impact of law on judicial behavior, particularly in the lower courts. Yet, even where we would expect the influence of law to be the greatest, in vertical stare decisis, the results are mixed; and elsewhere, the impact has generally been minimal.
The attitudinal model holds that judges decide cases in light of their sincere ideological values juxtaposed against the factual stimuli presented by the case. Consider a search and seizure whose constitutionality the Court must determine. Assume that the police searched a person’s house with a valid warrant supported by probable cause and there were no extenuating circumstances. The search uncovers an incriminating diary. Now imagine a second search, similar to the first in that probable cause existed, but in which the police failed to obtain a warrant.
We can place these searches in ideological space. Since the search with a warrant can be considered less intrusive than the search without the warrant, we place the first search to the left of the second search. This is diagrammed in Figure 14.1, where A represents the first search and B the second. Presumably, any search and seizure can be located on the line; the more invasive the search, the further to the right the search will fall. Points on the line where the searches lie are j-points.
Next, place the judges in ideological space. Consider three judges, 1, 2, and 3, respectively, liberal, moderate, and conservative. Judge 1 is so liberal that he would not even uphold the search in the first case. Thus we could place Judge 1 to the left (p. 281) of Case A. Judge 2 might not be quite so liberal as Judge 1; she would uphold the search of the home with a warrant, but would not uphold the warrantless search. Thus, we could place Judge 2 to the right of Case A but to the left of Case B. Finally, Judge 3 might find the warrant relatively unimportant and would uphold any search he considered reasonable, including Case B. Figure 14.1 places the justices in ideological space, with the markers for the judges representing their indifference points (i-points). Judges uphold all searches to the left of their indifference point, reject all searches to the right of their indifference point, and are indifferent about whether searches at that point are upheld or overturned.
Numerous behavioral implications follow from this model. At the case level, a court’s decisions should depend in part on the factual stimuli in the case. This implication is consistent with, but not unique to, the attitudinal model. At the judge level, differences in judges’ attitudes should influence aggregate and individual levels of ideological voting. Finally, the votes of particular judges in particular cases should depend on the interaction between the case stimuli and the judge’s attitudes.
The likelihood of judges behaving consistently with the attitudinal model will depend on institutional incentives and disincentives for ideological behavior. Atti-tudinal behavior should be at its apogee for a court at the top of the judicial hierarchy and which therefore cannot be overruled by higher courts; where public opinion supports an independent judiciary, limiting legislative attempts to strike at the court; when the court has docket control and thus can weed out frivolous cases that no self-respecting judge could decide only on her ideology; when the judges enjoy life tenure; and when the judges lack ambition for higher office and thus have no incentive to placate others (Sisk, Heise, and Morriss 1998). Although legal realists might argue that discretion inheres in all judging, judges will have less discretion when judges can be overruled by higher courts, political culture disfavors judicial independence, legally determinate cases fill the docket, or when judges seek higher office, can be replaced by the electorate, or even assassinated by political enemies (Helmke 2002). “Your i-point or your life” should be an easy decision to make when threats are real.
2.1 The Supreme Court
The attitudinal model well fits behavior on the U.S. Supreme Court. At the case level, changes in case stimuli have repeatedly been shown to influence Court decisions (see Segal and Spaeth 2002, 312–20 for a review).
At the level of individual judges, the relationship between the justices’ ideology (Segal and Cover 1989) and their behavior on the Court is quite strong. Ideally, the measure of the justices’ behavior would be based on the policies they supported in the Court’s written opinions, but such measures are not yet available (see Conclusion, below). Figure 14.2 thus shows the relationship between ideology and votes for all justices appointed since Earl Warren. The correlation coefficient, 0.78, demonstrates that the justices’ ideology explains exceedingly well their aggregate voting behavior.
(p. 282) As for the juxtaposition between the justices’ ideology and case stimuli, the model well predicts the Court’s search and seizure decisions. A model combining the justices’ attitudes and a series of case stimuli predicts 71 percent of the justices’ votes correctly (Segal and Spaeth 1992, ch. 8).
2.2 Lower Courts
For various reasons, attitudes are unlikely to have the same impact on lower court judges’ decisions that they do on Supreme Court justices’ decisions. Consider, for example, the U.S. Courts of Appeals. First, and foremost, Court of Appeals judges are undoubtedly influenced by the decisions and preferences of the U.S. Supreme Court. When Samuel Alito voted as a Court of Appeals judge to strike New Jersey’s partial birth abortion law, he was undoubtedly expressing the Supreme Court’s preference, not his own. Second, the Courts of Appeals have mandatory jurisdiction and undoubtedly hear many cases where they simply lack decisional discretion. Third, the composition of panels matters, i.e. Court of Appeal judges appear to be substantially influenced by those who sit with them on particular panels. Democrats (Republicans) sitting on a panel with a Republican (Democratic) majority are much more likely to vote conservatively (liberally) than they otherwise would, at least on less salient issues (Revesz 1997; Sunstein, Schkade, and Ellman 2004). Yet, in other situations, the minority on the panel, a “whistleblower,” can (p. 283) influence the majority by threatening to reveal doctrinal deviation to the higher court (Cross and Tiller 1998). And the presence of women and minorities on panels independently influences the decisions of those who sit with them (Farhang and Wawro 2004).
Figure 14.3 examines the relationship between ideology and liberal voting percentages on the U.S. Courts of Appeals. The data come from Songer’s United States Court of Appeals database for all judges who voted in twenty or more civil liberties cases (criminal procedure, First Amendment, civil rights, due process and privacy). The ideology of judges on the Courts of Appeals comes from the well-validated scores created by Giles, Hettinger, and Peppers (2001), rescaled so that liberal scores have higher values and the predicted relationship between attitudes and votes is positive. Although the fit is pretty good—indeed, it would be hard to imagine any other variable that explains so substantial a proportion of the judges’ voting behavior—obviously much more is at work on the Court of Appeals than just ideology.
Reliable measures of judges’ attitudes are much more difficult to create for state courts, so partisanship is frequently used as a proxy for ideology (cf. Brace, Langer, and Hall 2000). Pinello’s (1999) meta-analysis reports substantially lower relationships than reported here for federal courts, and indeed, at the state trial-court level, there appears to be no correlation between the judges’ ideology and behavior (Gibson 1978; Narduli, Fleming, and Eisenstein 1984).
3 Separation of Powers
Separation of powers (SoP) models examine the degree to which courts must defer to legislative majorities in order to prevent overrides that result in a policy worse than what the court might have achieved through sophisticated behavior. Consider the example in Figure 14.4, where the Court must decide a case in two-dimensional policy space. The game is played as follows. First, the Court makes a decision in (x1, x2) policy space. Second, the House and Senate can override the Court’s decision if they agree on an alternative. H, S, and C represent the ideal points of the House, Senate, and Court, respectively. The line segment HS represents the set of irreversible decisions, i.e. no decision on the line can be overturned by Congress because improving the position of one chamber by moving closer to its ideal point necessarily worsens the position of the other. Alternatively, any decision off of HS, call it x, can be overturned, because there will necessarily be at least one point on HS that H and S prefer to x. Imagine, for example, a decision at the Court’s ideal point, C. The arc IS represents those points where the Senate is indifferent to this decision, with the Senate preferring any point inside the arc to any point on or outside the arc. Similarly, IH represents the points where the House is indifferent to the Court’s decision. Thus, both the House and Senate prefer any point between S(C) (the point on the set of (p. 285) irreversible decisions where the Senate is indifferent to the Court’s decision) and H(C) (the point on the set of irreversible decisions where the House is indifferent to the Court’s decision) to a decision at C.
What, then, should a strategic Court do in this situation? If the Court rules at its ideal point or, indeed, any place off the set of irreversible decisions, Congress will overturn the Court’s decision and replace it with something that is worse from the Court’s perspective. For example, if the Court rules at C, then Congress’s response will be someplace between S(C) and H(C). The trick for the Court is to find the point on the set of irreversible decisions closest to its ideal point. By the Pythagorean Theorem, the Court accomplishes this by dropping a perpendicular onto the line. Thus, rather than ruling sincerely at C and ending up with a policy between S(C) and H(C), the Court rules at X*, the point between S(C) and H(C) it most prefers.
Separation-of-powers games vary in a variety of details, such as the number of issue dimensions, number of legislative chambers, influence of committees, existence of a presidential veto, etc. Regardless of the specific assumptions made, these models generally assume that the Court will construe legislation as close to its ideal point as possible without getting overturned by Congress (Ferejohn and Shipan 1990).
Despite its elegance, empirical support for the SoP model is not so clear-cut. Many articles on the SoP model are simply case studies—often selected on the dependent variable—that demonstrate examples of the Supreme Court acting strategically. Systematic analyses, though, report mixed results at best (Eskridge 1991), with the vast majority of studies reporting no impact (see Segal and Spaeth 2002, ch. 8 for a thorough review.)
Perhaps one reason the results typically do not work is that these studies typically examine the SoP model at the court that is perhaps most insulated from external influence: the U.S. Supreme Court. Judges on the Argentinian Supreme Court (Iaryc-zower, Spiller, and Tommasi 2006), Japanese lower court (Ramseyer and Rasmussen 2001), and U.S. state supreme courts (Brace and Hall 1990) appear more responsive to their political environments than justices on the U.S. Supreme Court.
Despite the lack of success in explaining the Supreme Court’s statutory decisions as a function of congressional preferences, scholars have expanded the SoP model to include constitutional cases, at least theoretically (Rosenberg 1992). Empirically, although Whittington (2005) suggests that judicial review can be a tool of the dominant coalition, there is little systematic evidence to support strategic deference by the Court in constitutional cases. Friedman and Harvey (2003) argue that the increase in the number of federal laws declared unconstitutional after 1994 is evidence that a strategic, conservative Court found itself free to overturn legislation following the 1994 Congressional elections. But this increase in activism also came, with a short lag, after the Court gained a fifth vote for conservative activism with the appointment of Clarence Thomas in 1991. Thus, Segal and Westerland (2005) find that the conservatism of the Court, not its ideological distance from the current Congress, best explains the annual number of federal statutes that the Court struck down between 1949 and 2001.
(p. 286) 4 Conclusion
There is of course much more to judicial behavior than covered in this chapter, which has focused on judges’ decisions on the merits, with particular attention on four important models of judicial behavior. My focus has excluded important merits-related topics such as public opinion and the effect of the solicitor general, and broader studies on granting discretionary review (Caldeira, Wright, and Zorn 1999; Brenner 1979) and opinion writing (Epstein and Knight 1998; Hettinger, Linquist, and Martinek 2006; Maltzman, Spriggs, and Wahlbeck 2000).
A persistent complaint about virtually all of the “merits” work cited above is that it measures votes, e.g. a judge’s decision to vote liberally or conservatively in a case or a series of cases, but what we’re really interested in is the policy established by the judge or court (Friedman 2006). Nevertheless, there is a substantial relationship between the votes judges cast and the policies set forth in their opinions (Wenzel 1995). Yet Wenzel’s findings are limited, and thus should not assuage us.
Recent work by McGuire and Vanberg (2005) opens up the possibility of more accurate and reliable recordings of judicial policy-making. Utilizing the computer-based Wordscore program, which has been used to map the ideology of political parties, McGuire and Vanberg have mapped the ideological positioning of Supreme Court opinions. The application of this technology should have a huge impact on our ability to better understand judicial behavior.
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(*) I thank Elyce Winters for research assistance
(1) These approaches may, among other things, provide invaluable hypotheses, but any such work that provides formal proofs without more is not a study of judicial behavior.
(2) Nor should it change as legally irrelevant factors, such as the parties to a suit, change.
(3) It does indirectly influence the probability that a court will use the strict-scrutiny standard by about .12.