Judicial Decision Making Artemus Ward Department of Political Science Northern Illinois University

2 Points of View about Judicial Decision Making n 1. The Legal Perspective - the behavior of judges is explained by law and formal procedure. n 2. The Attitudinal Perspective - sometimes called the political approach - law provides judges with tremendous discretion, leaving plenty of room for personal values and social factors to influence decisions.

The Legal Perspective n Since judges are trained and experienced in law, they will all use similar methods and information to decide cases. n Judges are detached from politics and the everyday world around them. n Judges are expected to discard their own personal opinions and decide cases objectively and on the basis of law.

Stare Decisis n Stare decisis (the rule of precedent) means that judges are expected to rely on similar past court decisions as the basis for deciding new ones. n By applying established principles found in previous cases to current situations, judges promote legal stability and continuity. n Stare decisis helps lawyers and clients know what the law requires. In the landmark abortion decision in Roe v. Wade (1973), which established a woman’s right to abortion, the Supreme Court relied on the precedent established in Griswold v. Connecticut (1965) that the Constitution protects a right to privacy.

Legal Reasoning n Judges select particular precedents through legal reasoning. n When a case comes up for decision, a judge is supposed to search for similar cases decided in the past, note the basis of the past decisions, and convert the decisions into a more general principle of law (often called a rule, standard, or test) that can be applied to the current case. NAACP Attorney Thurgood Marshall (center) was victorious in litigating a number of racial discrimination cases that were then used as precedent for the landmark decision in Brown v. Board of Education (1954), which prohibited racial discrimination in public schools.

Problems with Legal Reasoning and the Rule of Precedent n New Situations - precedent cannot always cover all situations. Sometimes the social distance between a past case and a current problem is so great that a precedent has to be stretched very far to make it fit the current issue. Sometimes there is no precedent. n Judges Disagree - it’s not always clear which past cases should apply. n Vague Criteria - it’s not clear how you go about selecting precedents: do judges look for similar facts, contemporary cases only, similar principles, etc.

The Language of Law: Judicial Decision-Making Tools n Plain Meaning – judges often rely on the common or usual language usage and sometimes rely on dictionary definitions of words to help them decide cases. n Strict Construction – under this theory, judges are supposed to stick very closely to the literal meaning of the words in the Constitution. Conservatives often advocate this approach as they see it as a device to limit the scope of government power.

The Language of Law: Judicial Decision-Making Tools n Intention of the lawmakers or framers – some judges look “behind” statutes or constitutions to try to discover the intent of the authors. n Is this easy to do? What are some of the problems with this approach?

Attitudinal Perspective n Some argue that law is mere window dressing or rationalization for judicial decisions. Since law is too general and imprecise to determine decisions, judges always have to use enormous personal discretion to do their job. Therefore, judicial decisions inevitably reflect judges’ attitudes, policy preferences, or some social factor that influences their thinking.

Attitudinal Perspective n But the public expects judges to act in a legal way, so judges package their decisions in appropriate legal wrappings to make them acceptable or legitimate – they cite precedents, framers’ intent, legislative history, etc. Although the references do not cause a particular decision, they support and justify it.

Social Backgrounds and Environments n Social scientists have studied a number of factors in order to determine if judges behave according to who they are: –political party and local culture influences are strongest on trial judges. –judges of different races and genders are more alike than different in their behavior. Therefore having a diverse group of judges does not necessarily lead to differences in judicial decision making. –Public opinion occasionally has an effect on highly visible decisions.

Judicial Attitudes n Judicial attitudes are the personal orientations, beliefs, or views that judges have toward the issues, litigants, and the facts in court cases. n Social scientists have provided convincing evidence that attitudes influence judicial decision making. n By looking at many cases over time, we can see patterns in the decisions judges make.

Judicial Attitudes n A liberal judge opposes government limitations on private rights and favors extending political freedom and opportunities. However, liberals support government regulation of business and aid to economic underdogs in order to provide economic benefits for the have- nots in society. n Conservatives believe that government should control individual liberty and limit freedom to preserve order but should not regulate business or adopt policies to aid economic underdogs.

Judicial Attitudes n Based on these criteria, political scientists have coded Supreme Court decision to determine how liberal or conservative each member of the Court is. For example, we find that Justice Clarence Thomas votes the conservative position in civil liberties cases 90% of the time, while Justice David Souter votes the liberal position 90% of the time.

Conclusion n There are 2 competing theories of judicial decision making - the legal approach and the attitudinal approach. n Every judge would tell you that the legal model is the correct one, but is it? Social scientists have provided much evidence to suggest that the attitudinal model is at work. n Could the truth be somewhere in between?