Last time, we began our analysis by addressing the competing theories of judicial behavior.  Formalism, the oldest theory, teaches that judicial decision making can be explained and predicted based upon the facts, the applicable law and precedent and judicial deliberations – and nothing more.  But if formalism explains all of judicial decision making, then many of the factors studied by empirical analysts, such as the judges’ individual ideologies and voting records, the lower courts involved and the nature of the parties to the litigation, should have little ability to forecast voting and outcomes.  But many studies have shown that such factors do have predictive power.

One of the two primary alternative theories was set forth in The Supreme Court and the Attitudinal Model, by Professors Harold J. Spaeth and Jeffrey A. Segal.  Attitudinalism holds that judges vote based upon their individual ideologies set against the facts of a specific case.  For example, a judicial conservative will require substantially more extreme facts before being willing to condemn the conduct of a police investigator than a liberal will.  Conversely, a judicial liberal will approve of government interference in business based upon a lesser showing of need than a conservative will require.

Attitudinalists have proposed two principal methods for proxying the ideologies of judges.  First, a Federal judge is presumed to be of the same party as the President who nominated him or her.  Although simple enough to determine, this model has been criticized as a blunt instrument, not allowing for the possibility that a Democratic president might nominate a judge who is equally if not more conservative than a Republican one.  Professor Segal and Professor Albert D. Cover have proposed “Segal-Cover scores,” which are based upon analysis of newspaper editorials published prior to a Justice’s confirmation.  Segal-Cover scores have proven to be valuable predictors of judicial voting patterns.  Other analysts have attempted to derive ex post ideological measures by tracking judges’ actual votes over a substantial period.

A third theory of judicial behavior is represented most prominently by former Judge Richard Posner of the Seventh Circuit and is known as legal pragmatism or realism.  Legal realism is based upon the idea that the law evolves over time as society moves forward.  Judge Posner has written that the task of the judge “is to decide cases with reasonable dispatch, as best one can, even in what I am calling the interesting cases – the ones in which the conventional materials of judicial decision making just won’t do the trick.”  Legal realism attempts to integrate the other theories into a kind of unified theory.  To a legal realist, a not insubstantial fraction of every appellate court’s caseload can be explained using traditional formalist techniques.  Another portion of the docket can be explained by attitudinalism – more so in appellate courts of last resort than in intermediate appellate courts.  But the rest cannot be entirely explained by either theory, since formalist rules do not dictate a determinate answer to the question, and judicial concerns, such as the limitations on what courts can practically do or the value of stability in the law, constrain judges from following their ideological preferences.

In the decades since C. Herman Pritchett’s work on the Roosevelt Court – and especially in the past thirty years – data analytic researchers have provided considerable evidence to suggest that the attitudinal and realism theories have considerable power to illuminate judicial decision making.

Image courtesy of Flickr by Tom Shockey (no changes).

Our latest repost:

We begin our analysis by addressing the foundation of the entire body of data analytic scholarship on appellate judging: competing theories of judicial decision making.

The oldest theory by far is generally known in the literature as “formalism.”  This is the theory we all learned in law school, according to which every decision turns on four factors, each completely extrinsic to the background and ideology of the individual judge: (1) the case record on appeal; (2) the applicable law; (3) controlling precedent; and (4) judicial deliberations (at least in the appellate world).  As Judge Richard Posner of the Seventh Circuit has pointed out, Blackstone was describing the formalist theory when he described judges as “the depositories of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land.”  In Federalist Paper No. 78, Alexander Hamilton was expounding the same theory when he wrote that judges have “no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.  {The judicial branch] may truly be said to have neither force nor will, but merely judgment.”

Much more recently, Chief Justice Roberts endorsed the formalist theory when at his confirmation hearing he compared a Supreme Court Justice to a baseball umpire – merely calling balls and strikes, never pitching or hitting.  For decades, politicians have promoted the formalist ideal when they insist that judges should merely interpret or discover the law rather than making it (such comments seem to be most often made in the context of complaints that one judge or another has fallen short of that ideal).

The adequacy of formalism as an explanation for how judicial decisions are made has been questioned for generations.  As I noted two posts ago, Charles Grove Haines showed in 1922 that magistrate judges in New York City appeared to be imposing widely varying sentences in factually indistinguishable DUI cases.  Many observers have pointed out that if formalism (which posits that there is one correct answer to every case, entirely extrinsic to the judges) best explains how appellate courts actually operate then dissent should be exceedingly rare, if not unheard of.  In fact, dissent is quite rare at intermediate appellate courts, if you consider both unpublished and published decisions.  But at appellate courts of last resort, and in all appellate courts when you consider the published decisions which shape the law, dissent typically runs anywhere from 20 to 45%.  Other observers have suggested that strict formalism cannot explain the importance of diversity in the judiciary if one assumes that individual judges’ judicial or political ideologies and personal backgrounds are entirely irrelevant.

Still others have pointed out that even the politicians who like to endorse the ideal of formalism have never actually believed that it explains judicial decision making.  As Professors Lee Epstein and Jeffrey A. Segal point out in Advice and Consent, their book on the politics of judicial appointments, 92.5% of the 3,082 appointments to the lower federal courts made between 1869 and 2004 have gone to members of the President’s own party.  Surely that number would be far lower if the philosophy of an individual judge had no impact on judicial decision making.

Most of all, critics of formalism have argued that in fact, it is possible to predict appellate decision making reasonably well over time based upon factors unrelated to the facts of any specific case and legal doctrine.  For example, in a 2004 study performed by Theodore W. Ruger and others, the professors attempted to predict the result in every case at the U.S. Supreme Court during the 2002 term using a six factor model: (1) the circuit of origin; (2) the issue involved; (3) the type of petitioner; (4) the type of respondent; (5) whether the lower court decision was liberal or conservative; and (6) whether the petitioner challenged the constitutionality of a law or practice.  They compared the model’s predictions to the results of independent predictions by legal specialists.  The statistical (and decidedly non-formalist) model predicted 75% of the Court’s results correctly; the legal experts were correct 59.1% of the time.

Image courtesy of Flickr by Ken Lund (no changes).