Tag Archives: judicial decision making

How judges judge, part IV

Law professors Erwin Chemerinsky and James J. Sample write in an opinion piece in today’s New York Times,

In 39 states, at least some judges are elected. Voters rarely know much, if anything, about the candidates, making illusory the democratic benefits of such elections. Ideally, judges should decide cases based on the law, not to please the voters. But, as Justice Otto Kaus of the California Supreme Court once remarked about the effect of politics on judges’ decisions: “You cannot forget the fact that you have a crocodile in your bathtub. You keep wondering whether you’re letting yourself be influenced, and you do not know.”

First of all, is it right that judges should ideally decide cases based on the law? One of the points Segal and Spaeth make is that, were the law sufficiently clear, there would be no need for judges to weigh in. Thus, it doesn’t make sense to expect judges to make decisions based purely on the merits. And yet, for some reason we do do. I think Robert Dahl also made this point in his classic 1957 article.

The authors then proceed to their main point, which is that political donations to judges and judicial candidates have an undue influence on their decisions. Their evidence? Exhibit A is public opinion.

More than 7 in 10 Americans believe campaign cash influences judicial decisions. Nearly half of state court judges agree. Never before has there been so much cash in the courts. Measured only by direct contributions to candidates for state high courts, campaign fund-raising more than doubled in a decade.

Are there any instances of actual court-buying that these scholars can cite? Just one, involving Massey Coal Company.

So to summarize the case: court-buying is bad. Most Americans think donations buy court decisions. There is lots of money being given to judicial candidates. And the Supreme Court ruled that in one instance, it looks like there was a conflict of interest involving contributions and judicial decision making. Therefore, we should impose further restrictions on giving to judicial candidates.

Right? But to summarize the actual evidence, we have a single instance of what could be construed as court-buying. Is that sufficient to make a change in policy? Unfortunately, once you sprinkle in some selective statistics and public opinion polling (even after, nonetheless, they deride the public’s ability to make decisions in judicial elections earlier in the piece), it just might be.

How judges judge, part three

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A new paper finds that experienced parole judges in Israel granted freedom about 65 percent of the time to the first prisoner who appeared before them on a given day. By the end of a morning session, the chance of release had dropped almost to zero.

After the same judge returned from a lunch break, the first prisoner once again had about a 65 percent chance at freedom. And once again the odds declined steadily.

From a post on the Times’ Economix blog. Like this commenter, the first thing I worry about is how selection into the docket is determined. If lawyers know that judges are more favorable at certain hours of the day, maybe the better lawyers sort into different time slots. Of course, this doesn’t come into play as much in the potential extrapolations of this research to things like admissions committees.

Does politics taint justice?

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I was intrigued by the opening lines of today’s stern lecture from the anonymous NY Times editorial board:

The furiously contested election of a Wisconsin Supreme Court justice shows, once again, how politics and money can debase the law.

Intrigued because the Times is conflating politics with money in terms of how it can debase the law. The implication is that they think “politics” is just as bad as corruption, at least when it comes to judicial decision making. The remainder of the editorial is a discussion of the Wisconsin election, but the twin ‘problems’ of money and political influence are interspersed. Mostly money, but in the context of “special interest” contributions from politically-minded groups; but then at the end of the editorial, this:

The heavy spending predates this year’s heated battle, and the once collegial court has become increasingly fractured along political lines…

Upholding the Impartial Justice Act, a federal trial judge quoted Alexander Hamilton as saying that “the complete independence of the courts of justice is peculiarly essential” to democracy, as a check on the political branches. A merit panel should pick the state’s justices.

I don’t know if that claim–that it’s fundamentally wrong and unconstitutional for justices to have political motives–is right. It seems to contradict the empirical research on the federal Supreme Court, which I mentioned in an earlier post. Normatively, however, it might also just be a confusing position. On one hand, the Times is saying it’s wrong for the justices to have political motives. But on the other hand, they are saying that it’s wrong for them to accept contributions from other parties with political motives. Now, if both events are occurring–justices have political motives, and donors give with political motives–then my guess is that the justices would just take the money and act in the interest of their own underlying political motives anyway.

In a different world, where justices have no “ideological” motives, but donors do, that could be a problem. Or vice versa: if donors just wanted to “extract rents”, as the economists say, but politicians had political motives, then that could lead to problems. But if everyone is motivated by politics, it seems to lessen these concerns. As does having judges be directly elected. Since I believe Segal and Spaeth (see the previous post linked to above) when they say judges (like everyone else) are motivated by politics, it might not be so bad if they take into account what voters want. But that’s an empirical question, one that the Times’ failure to distinguish economic and political influence prevents us from answering.

So what are the causal questions here? My title suggests that it’s the effect of “politics” on “justice.” Political science research says, justice is politics, at least when it comes to how judges make decisions. A better question is how to get “good” policy outcomes when it comes to the judiciary. The editorial is nice in that it sort of asks this question, but I don’t see it as really helping to answer it.

What explains Supreme Court decision making?

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Not all causal questions are of the form, “What is the effect of X on Y?” Sometimes, the question is more broad, and of the form, “What causes Y?”

Recently, the Washington Post’s editorial board weighed in–for who knows what reason–on the question of what motivates Supreme Court justices when they make their decision. Apparently, the Post thinks that most of its naive readers think the Court’s justices make decisions based on their political ideology. Luckily for readers, the Post is quick to correct this view: according to an analysis of Court decisions on a Supreme Court blog, this isn’t the case.

An analysis by Supreme Court advocate Thomas Goldstein on SCOTUSblog also chips away at the notion that justices rule in lockstep with their political preferences and are constantly at each other’s throats. In the 2010 essay “Everything you read about the Supreme Court is wrong,” Mr. Goldstein notes that 5-to-4 splits were rendered in less than 20 percent of the cases during the court’s 2009 term — the most recent term for which full statistics are available. During the ’09 term, “roughly half the decisions were nine to zero.”

The Post also contributes to the body of evidence: by pointing out some decisions that have been made “in recent weeks”, decisions the Post thinks support their view.

My first reaction to this piece is, who thinks the Justices are motivated by politics? It sounds like something of a straw man. My second reaction is, of course they are!

Both of my reactions are informed by political science research on this topic. In their book The Supreme Court and the Attitudinal Model Revisited, Segal and Spaeth begin by suggesting that most people–i.e., legal scholars and the public–think the Court is motivated by legal ideals, like precedent. Segal and Spaeth then proceed–by looking at Supreme Court systematically across time–to show that this is not the case, and that judges–like all other human beings–make decisions based on their personal preferences.