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

BrennanW

hite

Mars

hall

Blackm

un

Rehnquist

Steve

ns

O'ConnorSc

alia

Souter

Thomas

Breyer

Ginsburg

0

10

20

30

40

50

60

70

80

90

Liberal Votes

Liberal Votes

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 casesValues come from nature of job,

rather than own political preferenceExamples: policy-making, problem-

solving, administrator

Small Group TheoryMartinek discusses re: Appeals Court

panels of 3Group 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 roleAssumes that law is a known thingMay 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

appallingAssumes Constitution has literal

meaning/ “Protestant” vision of interpretation

Simplistic vision of languageGreat for easy questions, useless for

difficult questions

Original Intent/UnderstandingAuthority derives from authorshipFocuses on meaning when written (Intent)

and ratified (Understanding)Assumes ability to determine original

meaningAssumes that original meaning provides

answers to current questionsBetter at vetoes than positive answers

Contemporary RatificationJudges must read texts to reflect current

problems, understandingsOriginal Intent is hubrisJudges’ job is to decide, SC & OI don’t

answer many questionsConstitution’s meaning reflects history as

unfolding of principles, not frozenWeakness: whose contemporary values?

Activism Ranking (Rehnquist Court)

Decisions overturning Federal or State & Local Laws by Ideology

ThomasSc

alia

Rehnquist

Kennedy

O'Connor

Souter

Breyer

Ginsberg

Steve

ns0

5

10

15

20

25

30

35

FederalState/Local