THEORIES OF HOW JUDGES DECIDE
Judges may consider very different things in making their decisions, from the relevant statutes to their relationships with other judges. For our purposes, we will focus on four main explanations of how judges decide—the legal model, the attitudinal model, the strategic model, and the labor-market model.
Perhaps the most apparently common sense theory is the legal model. According to this theory, a judge decides cases according to the law. She may locate the correct legal answer by relying on precedents, on statutes, on the Constitution, or on a combination of all these sources. In its narrowest form, the model views the judge’s role as finding the law and applying it to the facts. In cases where the law does not provide a clear answer, the judge is to interpret the case law or statute in the manner most consistent with the aims of the case law or statute as a whole. As we saw in the example in Chapter 1, if the fictitious Parks Act prohibits “vehicles” in parks, the judge decides if a skateboard is a “vehicle” by looking at the purposes of the statute (to promote recreation? To foster quiet reflection?), what other judges have found to be “vehicles,” and the nature of skateboard use. The key for the legal model is that the law decides the case without the judge attending to his or her own view of the best outcome.
The attitudinal model, on the other hand, sees the judge as following her own personal views of the best outcome in each case. If a judge does not like skateboards in parks, he would find them to be “vehicles” under the Parks Act. If a judge has “liberal” policy preferences, he may be more likely to find in favor of an outcome of an appeal that encompasses a more expansive view of equality rights. The judge may consciously vote for the outcome that fits with his or her policy preferences or may unconsciously follow those preferences through unconsidered assumptions.5 Personal preferences may not be the sole determinant of judges’ decisions but they are an important influence. Judges have been found to at least partially follow their personal views on the US Supreme Court, though as we will see the influence is less clear on other high courts.6
How can we identify a judge’s personal policy preferences? There are different indications such as the party of the individual (such as the president or prime minister) who appointed the judge, past decisions of the judge, and newspaper articles at the time of appointment.7 However, none of these are perfect; none
- 5. Eric A. Posner, “Does Political Bias in the Judiciary Matter? Implications of Judicial Bias Studies for Legal and Constitutional Reform” (2008) 75 University of Chicago Law Review 853 (discussing the role of political bias in judicial decision-making as well as explicit and implicit bias).
- 6. The research on the attitudinal model in the United States is too vast to cite. See e.g. Segal & Spaeth, Attitudinal Model, supra note 4; Andrew D. Martin et al., “Competing Approaches to Predicting Supreme Court Decision Making” (2004) 2 Perspectives on Politics 761 [Martin et al, “Competing Approaches”]; Andrew D. Martin & Kevin M. Quinn, “Assessing Preference Change on the US Supreme Court” (2007) 23 Journal of Law, Economics, and Organization 303. In Canada, see e.g. Benjamin Alarie & Andrew Green, “Policy Preference Change and Appointments to the Supreme Court of Canada” (2009) 47 Osgoode Hall LJ 1 at 7-8 [Alarie & Green “Policy Preference”]; C.L. Ostberg & Matthew E. Wetstein, Attitudinal Decision Making in the Supreme Court of Canada (Vancouver: University of British Columbia Press, 2007) at 191- 192 [Ostberg & Wetstein, Attitudinal Decision Making]; and Donald R. Songer et al., Law, Ideology and Collegiality: Judicial Behaviour in the Supreme Court of Canada (Montreal and Kingston: McGill University Press, 2012). In Australia, see Rebecca Wood Gill, Jason L. Pierce & David L. Weiden, “Empirical and Legal Trends at the High Court of Australia” (Paper delivered at Southwest Political Science Association Meetings, 2011), online: http://ssrn.com/ abstract=1985814.
- 7. Party of the appointing president or prime minister has been a long-standing proxy for policy preference. See Nancy C. Staudt, Lee Epstein & Peter Wiedenbeck, “The Ideological Component of Judging in the Taxation Context” (2006) 84 Washington University Law Review 1797 (describing methods that have been used to estimate policy preferences of judges in the United States); Alarie & Green “Policy Preference,” supra note 6. Segal and Cover developed ideology scores in the United States based on newspaper editorials at the time the justice was appointed. See Jeffrey A. Segal & Albert D. Cover, “Ideological Values and Votes of U.S. Supreme Court Justices” (1989) 83 American Political Science Review 557. Ostberg & Wetstein, Attitudinal Decision Making, supra note 6 developed similar scores in Canada. Ideal points were developed and have been applied in the United States by American political scientists Andrew Martin and Martin Quinn (see e.g. Andrew D. Martin & Kevin M. Quinn, “Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999” (2002) 10:2 Political Analysis 134) and have been applied in Canada (see e.g. Alarie & Green “Policy Preference,” supra note 6), although these scores merely situate a justice in a unidimensional policy space relative to other justices.
completely captures the range of sources or types of a judge’s personal views from his political preferences (liberal versus conservative) to a bias in favor of his home state.
A third explanation for how judges decide is the strategic model, which is related to the attitudinal model. In both models, the judge decides an appeal at least in part based on her own personal policy preferences. However, under the strategic model, the judge takes into account not only her preferred outcome in the particular appeal but also the likely reaction of others such as other judges on the panel, lower courts, or the legislature. A judge may, for example, agree with a fellow judge that a skateboard is a vehicle because she wants to maintain her relationship with that judge in future cases. The judge factors in these broader impacts of the decision to ensure that her personal preferences are met not just in the individual appeal but over all the decisions she cares about.
These three models describe opposite ends of the spectrum for judicial decision-making—either law controls the decision (the legal model) or the judge decides according to his or her own policy preferences directly (the atti- tudinal model) or more indirectly (the strategic model). However, as Posner notes, none of these models seem to capture all that influences a judge’s decision. The law cannot completely determine every question that a judge has to decide. There are ambiguities in statutes or precedents that do not permit a clear determination. Moreover, judges have discretion in some cases that potentially provides them with the ability to decide in accordance with other factors than the “law" Even if a judge wants to rely on precedents, she generally has a choice of which precedents to rely on, and in some cases judges appear to choose those cases in accordance with their ideological bent.
On the other hand, judges do not appear to always rely on policy preferences. As we will see, judges in general seem to rely more on policy preferences in some areas such as civil rights and liberties than in others such as tax. In addition, judges tend to vary over time in how they decide cases, rather than being perfectly predictable at the time of appointment. A judge may change, for example, because her own views have changed or because new judges have joined the court with different views. Moreover, judges on some courts such as the uS Supreme Court may be more influenced by their personal views than judges on other courts, pointing to other factors than merely policy preferences playing a role in how judges decide, such as norms on the court.
It may be, moreover, that focusing on whether a judge votes in a liberal or conservative direction blurs or obscures other important aspects of how judges decide. Fischman and Jacobi argue, for example, that there is a second dimension to judicial decision-making. The judges on the uS Supreme Court not only split on a liberal-conservative basis but also on legal methodology such as legalism as opposed to pragmatism. Further, Cameron and Kornhauser point to the attention a judge pays to the factual context of each case that is not accounted for in the current attitudinal approach to judicial decisions.
Thus, it seems clear that judges are not solely driven either by their personal views narrowly conceived as particular policy outcomes or by legal considerations. Recognizing that these factors do not completely explain judges’ decisions, Epstein, Landes, and Posner recently attempted to broaden the understanding of how judges decide through a labor market theory of judicial decision-making that takes account of how judges balance different factors. The core of the theory is that a judge weighs all the costs and benefits of the decision. Judges take into account a wide range of factors including their job satisfaction (including a sense of accomplishment through maximizing policy preferences, and interpersonal relationships fostered by collegiality on the court), external satisfactions (such as reputation and power), leisure, wages and income from both judicial and nonjudicial work, and promotion. There are cases in which ideology or values likely do not play a significant role, but there are others, such as where there is discretion or uncertainty, where they almost certainly do. The labor market theory then views judges as concerned with an additional interesting set of considerations beyond either the law or policy preferences, such as the desire for leisure or collegiality. In fact, following the law on this view may become merely a part of preferences.
Realistically, judges, as with all individuals, decide based on a complex set of factors and preferences. In this book we will in part work from something close to the labor market model of Epstein, Landes, and Posner. We view judges as consciously or unconsciously balancing a range of competing factors. Similarly to the labor market model, we assume judges make decisions just like anyone else; whether it is purchasing a car, deciding whether to exercise, dealing with a co-worker, or deciding whether to write a dissent, people try to make the best decisions possible in light of a broad range of often conflicting considerations.
-  Posner has posited nine “overlapping, incomplete” theories of judicial decision-making: attitudinal, strategic (positive political theory), sociological, economic, psychological, organizational, pragmatic, phenomenological, and legal (Richard A. Posner, How Judges Think(Cambridge, MA: Harvard University Press, 2008), at 19, 57 [Posner, How Judges Think]); Hethen draws these theories together into a “labor-market” theory of judging (Posner, How JudgesThink, supra note 2 at 57).
-  Posner, How Judges Think, supra note 2 at 41; Matthew Stephenson, “Legal Realism forEconomists” (2009) 23 Journal of Economic Perspectives 191 at 194.
-  Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited(Cambridge: Cambridge University Press, 2002) [Segal & Spaeth, Attitudinal Model]. The attitudinal model largely arose from US scholarship and has become a dominant model in empirical analysis. Some important early work on the attitudinal model include C. Herman Pritchett,The Roosevelt Court: A Study in Judicial Politics and Values 1937-1947 (New York: Macmillan,1948); Glendon Schubert, The Judicial Mind: The Attitudes and Ideologies of Supreme CourtJustices, 1946-1963 (New York: Northwestern University Press, 1965); Glendon Schubert, TheJudicial Mind Revisited: A Psychometric Analysis of Supreme Court Ideology (Oxford: OxfordUniversity Press, 1974); David W. Rohde & Harold J. Spaeth, Supreme Court Decision Making(San Francisco: WH. Freeman, 1976).
-  Epstein, Landes & Posner, Behavior, supra note 1 at 89.
-  On the strategic model, see e.g. Lee Epstein & Jack Knight, The Choices Justices Make(Washington, DC: CQ Press, 1998); Segal & Spaeth, Attitudinal Model, supra note 4; Thomas H.Hammond, Chris W. Bonneau & Reginald S. Sheehan, Strategic Behavior and Policy Choice onthe US Supreme Court (Stanford, CA: Stanford University Press, 2005); and Forrest Maltzman,James F. Spriggs II & Paul J. Wahlbeck, Crafting Law on the Supreme Court: The CollegialGame (Cambridge: Cambridge University Press, 2000) [Maltzman, Spriggs & Wahlbeck,Crafting Law].
-  Segal & Spaeth, Attitudinal Model, supra note 4 (“[t]he effort involved in these revisions [ofthe majority opinion to meet the dissent’s points], and resentment at criticism by the dissentingjudge, may impose a collegiality cost on him by making him less well liked by his colleagues,which may make it harder for him to persuade other judges to join his majority opinions infuture cases" at 261); Lee Epstein, William M. Landes and Richard A. Posner, “Why (and When)Judges Dissent: A Theoretical and Empirical Analysis," (2011) 3:1 Journal of Legal Analysis 101.See also Lee Epstein & Tonja Jacobi, “The Strategic Analysis of Judicial Decisions" (2010) 6Annual Review of Law and Social Science 341 at 344 [Epstein & Jacobi].
-  Posner, How Judges Think, supra note 2 at 57.
-  Anthony Niblett & Albert H. Yoon, “Judicial Disharmony: A Study of Dissent” (2015) 42International Review of Law and Economics 60.
-  In the united States, see Segal & Spaeth, Attitudinal Model, supra note 4; Martin et al.,“Competing Approaches,” supra note 6; Cass R. Sunstein et al., Are Judges Political? AnEmpirical Analysis of the Federal Judiciary (Washington, DC: Brookings Institution Press,2006). In Canada, see Ostberg & Wetstein, Attitudinal Decision Making, supra note 6 at 191-99.Alarie & Green “Policy Preference,” supra note 6; Benjamin Alarie & Andrew Green, “CharterDecisions in the McLachlin Era: Consensus and Ideology at the Supreme Court of Canada”(2009) 47 Supreme Court Law Review 475 at 500-501 (finding differences even across types ofCharter cases).
-  See e.g. in the United States Lee Epstein et al., “Ideological Drift among Supreme CourtJustices: Who, When and How Important?” (2007) 101:4 Northwestern University Law Review1483 [Epstein et al., “Ideological Drift”]; in Canada, Alarie & Green “Policy Preference,” supranote 6.
-  Ostberg & Wetstein, Attitudinal Decision Making, supra note 6 (“[a]lthough a substantialamount of attitudinal decision making appears in diverse areas of law in the post-CharterCourt, especially in non-unanimous cases, the impact of ideology is not as crystal-clear or assystematic as that found in the uS context” at 226); Alarie & Green “Policy Preference,” supranote 6.
-  Posner, How Judges Think, supra note 2 at 42-43 notes that proponents of the attitudinalmodel and the strategic model did not claim it was the sole determinant of judicial decisions.
-  Joshua Fischman & Tonja Jacobi, “The Second Dimension of the Supreme Court” (2016) 57Wm. & Mary Law Review 1671.
-  Charles M. Cameron & Lewis A. Kornhauser, “Rational Choice Attitudinalism? A Reviewof Epstein, Landes and Posner’s ‘The Behavior of Federal Judges: A Theoretical and EmpiricalStudy of Rational Choice’” (2015) European Journal of Law & Economics.
-  Epstein, Landes & Posner, Behavior, supra note 1 at 30.
-  See also Lee Epstein & Jack Knight, “Reconsidering Judicial Preferences” (2013) 16 AnnualReview of Political Science 11-31.