Judicial Decision-making

Legal Model Traditional 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 Realism Attack 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 Facts Find relevant precedents Determine relevant similarities/ differences Apply rule of law from earlier precedents Decision New Rule of Law

Political Model Attitudes Judicial Vote Role Orientations Institutional Context

Attitudinal Model Focuses 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 Model Justices’ 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

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 Theory Assumes 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 Theory Martinek 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 Model Appellate panels only Views judges as policy makers strategizing to achieve preferred outcome May not vote for 1 st position when vote for 2 nd or 3rd position leads to better outcome Intuitive as political model, but adds complexity to explaining judicial behavior

Jurisprudential Regimes Current 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 Activism Idea 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

Sunstein, “Judges and Democracy” CJ Marshall in McColloch: “it is a constitution we are expounding” Dred Scott – the decision that broke a nation, Lincoln’s response Pollock and Lochner: judicial ideology overturned by politics Brown and Reynolds: judicial activism that enabled democratic politics

What Americans Want James 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/Understanding Authority 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 Ratification Judges 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