Post on 23-Sep-2020
Judicial Decision-making
Legal ModelTraditional model of applying “the law”
to facts of case
Assumes that the law is discoverable
Often sufficient for most trial judges or intermediate appellate judges
Does not work for “hard cases”, esp at appellate level
Legal RealismAttack on legal model beginning in 1880s
with O.W. Holmes, high point in 1930s
Demonstrated that the law did not determine outcomes in interesting cases, but only in routine ones
Unfairly attacked as amoral, rather than attempt at explanation
Legal Model
FactsFind
relevant precedents
Determine relevant
similarities/differences
Apply rule of law from
earlier precedents
DecisionNew Rule
of Law
Political Model
Attitudes
Judicial Vote
Role Orientations
Institutional Context
Attitudinal ModelFocuses on the question of why do
judges vote the way they do
Looks for individual differences in background and ideology
Often classifies judges by membership in blocs that vote alike
Developed to analyze Supreme Court
Attitudinal ModelJustices’ votes are a function of their
policy preferences
This is self-defining, often common sense: Justice Scalia votes conservative over 70% of the time, so he’s a conservative
Justices sometimes cast votes are inconsistent with their ideology
Ideology and Partisan Appointment
Voting Behavior of Justices, by Party
0
10
20
30
40
50
60
70
80
90
Liberal Votes
Brennan
White
Marshall
Blackmun
Rehnquist
Stevens
O'Connor
Scalia
Souter
Thomas
Breyer
Ginsburg
Marshall, Pacelle, Ludowise, Court of Laws or Super Legislature?
Finds that presidential ideology is single largest measureable influence
Also strong support for legal model because of norm of precedent
Also significant finding that group dynamics (strategic model) tempers attitudinal preferences
Role TheoryAssumes that judges consider the
different roles that they may play in position
May act differently in different cases
Values come from nature of job, rather than own political preference
Examples: policy-making, problem-solving, administrator
Small Group TheoryMartinek discusses re: Appeals Court
panels of 3
Group dynamics may influence decision, not just background, but also status relative to other members
Strong group norms around consensus, dissent are also possible
Strategic ModelAppellate panels only
Views judges as policy makers strategizing to achieve preferred outcome
May not vote for 1st position when vote for 2nd or 3rd position leads to better outcome
Intuitive as political model, but adds complexity to explaining judicial behavior
Jurisprudential RegimesCurrent empirical approach to thinking
about use of precedent
Attempts to track degree to which courts (esp. lower courts) change behavior after important decisions
Shows how precedent becomes part of legal language and culture, influencing decisions
Problem of Judicial ActivismIdea that judges move beyond law
and proper role
Assumes that law is a known thing
May be criticism of judge’s movement beyond proper role, but more commonly disagreement with result
What Americans WantJames Gibson, 2009
Major Schools of Constitutional Interpretation
Strict Construction (Meese)
Original Intent/Understanding (Scalia)
Contemporary Ratification (Brennan/Marshall/Souter)
Representation Reinforcement
(John Hart Ely)
Strict Construction Politically appealing/intellectually
appalling
Assumes Constitution has literal meaning/ “Protestant” vision of interpretation
Simplistic vision of language
Great for easy questions, useless for difficult questions
Original Intent/UnderstandingAuthority derives from authorship
Focuses on meaning when written (Intent) and ratified (Understanding)
Assumes ability to determine original meaning
Assumes that original meaning provides answers to current questions
Better at vetoes than positive answers
Contemporary RatificationJudges must read texts to reflect current
problems, understandings
Original Intent is hubris
Judges’ job is to decide, SC & OI don’t answer many questions
Constitution’s meaning reflects history as unfolding of principles, not frozen
Weakness: whose contemporary values?
Activism Ranking (Rehnquist Court)
Decisions overturning Federal or State & Local Laws by Ideology
0
5
10
15
20
25
30
35
Federal
State/Local