Empirical and Comparative Perspectives on Law and Politics What affects a judge’s decisions? International Max Planck Research Summer School, 2015

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What affects a judge’s decisions? Supreme Court Decision Making in the US, Canada and Israel

Models of Supreme Court Decision-Making New- Institutional Approach Rational Choice Model Attitudinal Model Legal Model Legal SociologyLegal Realism - Law and Economics Legal Realism - CLS Legal Positivism Jurisprudence / Legal Approach New- Institutionalism Rational ChoiceBehavioralismOld- Institutionalism Political science Approach IntegratedEconomic models Quantitative analysis Content analysis Methodology Political actors, influenced by institutional norms Individual Political actors, Playing a collegial game Individual political actors Non Political actors Approach to justices’ Attitudes + strategic considerations + institutional variables such as the Law Attitudes + strategic considerations The judge’s ideology vis-à-vis the facts of the case The law justices considerations are:

Research Question What are Israeli justices’ considerations when deciding on a legal dispute? Research Question  Institutional Background  Hypotheses  Methodology  Attitudinal Analysis  New Institutional Analysis  Conclusion

Institutional Comparison of Supreme Courts Israel Supreme CourtSupreme Court of Canada United States Supreme Court CapacitiesHighest appellate court in criminal and civic cases + Court of first and final instance in administrative petitions Highest appellate court Judicial Review Powers Granted according to ISC interpretation of the two basic law on human right (1992) Granted in the Charter of Rights and Freedoms (1982) Granted according to USSC Marbury v. Madison decision (1803) Number of Justices AppointmentCommitteePrime ministerPresident + Senate confirmation TenureRetirement at age 70Retirement at age75Lifetime Caseload (cases resolving on the merits) About 1500 casesAbout 100 cases Control of DocketIn practice, little controlMainly discretionary jurisdiction PanelsYes No Consensus Norm 90%-95%75%35%-40%

Research Hypotheses Hypothesis 1 - The Attitudinal Hypothesis: The strength and independence of the Israeli courts will cause Israeli justices to take their ideologies into consideration; however, the caseload, type of cases, norm of consensus, and method of judicial appointment serve to moderate the impact of these ideologies. Therefore, I expect that the pure attitudinal model assertion that justices are motivated only by their attitudes (and the facts that stimulate them), will not be applicable in the Israeli Supreme Court. However, I assume that attitudes will show significant effect on the Israeli justices’ decisions. Research Question  Institutional Background  Hypotheses  Methodology  Attitudinal Analysis  New Institutional Analysis  Conclusion

Research Hypotheses Hypothesis 2 - The Neo-Institutional Hypothesis: The caseload, the norm of consensus, the method of professional appointments, and the weaker effect of attitudinal considerations will strengthen the law’s influence in the ISC decision-making process. I assume that justices in Israel will act to a great degree according to “the law”, to the extent that it is a shared mindset among all justices and provides clear- cut, repetitive, and easy tests for application in such a way as to enable two objectives: rapid processing of the heavy caseload, and reaching a consensus among justices regarding results of the legal case. Research Question  Institutional Background  Hypotheses  Methodology  Attitudinal Analysis  New Institutional Analysis  Conclusion

Methodology The Challenge of measuring justices’ attitudes Freedom of Religion as a study case- advantages and disadvantages Data and Coding

Decisions Supporting Freedom of Religion Handed Down by Religious and Secular Justices 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Secular JusticesReligious Justices

Attitudinal Analysis: Logistic Regression Estimates of Freedom of Religion Cases Prob. Impact Odds Ratio Se(B)B ***Justice’s religious attitude **National security *** Religious practice in dispute (Budget allocation as reference category): Kosher food * Prayer Religious sensibilities * Sabbath observance Personal status *Constant N = 260 Model Chi-square: 22.98***; df = 7;Nagelkerke R2 = % correctly predicted: 67.7%; Proportionate reduction in error = 32% Note: Dependent variable coded 1 = Supporting freedom of religion; 0 = not supporting freedom of religion; *p < 0.05; **p< 0.01; ***p< Standard errors are clustered by case.

New Institutional Analysis: The Methodology of the Law Can the law be measured? Measuring “Jurisprudential Regimes” (Kritzer and Richards 2003, 2005, 2006, 2008) Measuring the effect of the “constitutional revolution”

Jurisprudential Regime in Israel: The New Basic Laws on Human Rights Example of Rights that are Not “Constitutional supra-legal” Rights that have a “Constitutional-supra-legal” status Due Process of Law; Right for education; Movement in Israel; Life; Dignity; Property; Privacy; Movement out of Israel and into it; Freedom of occupation;

New Institutional Analysis: Logistic Regression Assessing the Influence of ‘Basic Laws' on Freedom of Religion Cases Post Basic LawsPre Basic Laws Prob. ImpactOdds RatioSeBProb. ImpactOdds RatioSeB *** Justice ’ s religious attitude ** Constitutional right National security * Kosher food # Prayer # Religious sensibilities # Sabbath observance # Personal status # Constant Before / after difference 19259N % correctly predicted 13.7%24.1%PRE Nagelkerke R Model Chi-square 687Df <.01 <.05Significance Note: *p < 0.05; **p< 0.01; ***p< Standard errors are clustered by case. # Budge allocation as reference category.

Conclusion (1) The ISC attitudinal test results, joining various attitudinal tests made in the USSC and SCC, raise the hypothesis that in countries wherein the supreme court has a strong political effect, and the justices enjoy a great deal of political independence, despite other differences in institutional arrangements, the justices’ decisions will be significantly influenced by their ideologies.

Conclusion (2) The results of the neo-institutional test do not contradict the previous hypothesis but rather add a hypothesis, based on my research and several studies of the USSC, according to which, despite the political influences on courts, justices’ decision making is also based on neutral considerations, such as the institution of “the law”.

Comparing Courts United StatesCanadaIsraelIndiaPhilippines CapacitiesHighest appellate court; original jurisdiction Highest appellate court; advisory jurisdiction Highest appellate court in criminal and civil cases + first and final instance in many administrative petitions Highest appellate court; original jurisdiction; advisory jurisdiction Highest appellate court; original jurisdiction Judicial Review Powers ~Full (Marbury v. Madison, 1803) ~Full (Charter of Rights, 1982) ~Full (interpretation of basic law, 1992) ~Full (by constitutional mandate) ~Full (by constitutional mandate) N Justices AppointmentPresident + Senate confirmation Prime ministerIntegrated committeeCollegiums of justices President and integrated committee TenureLifetimeRetirement at 75Retirement at 70Retirement at 65Retirement at 70 Annual Caseload ~100 cases ~1500 cases ending in verdicts ~45,000 admission. 5,000 regular cases ~4000 cases Control of Docket Mainly discretionary jurisdiction In practice, almost no control Almost no control.Almost no control Consensus Norm LowRelatively highHigh PanelsNorarely usedYes