Distinguishing Law From Ideology in Judicial Decisions

In response to my recent post warning against Judge Posner’s pragmatic adjudication, a number of readers defended Posner as merely being honest about the reality that judging is substantially political. This assertion is supported by personal testimony and reference to various studies of judicial decision-making. Given this reality, Posner’s urging that judges should strive to achieve the most reasonable result (all things considered) merely brings into the open what judges are already doing.

The previous discussion focused on appellate judging below the Supreme Court (a special case). Once one accepts that politics has some play in these decisions, as few people would deny, the crucial question is how much play. Posner emphasizes the political factors in judges’ decisions, whereas I emphasize the overarching influence of legal rules and judges’ commitment to decide cases in a rule bound fashion.

Wherever one stands on these issues, there is no question that it is devilishly difficult to pin down. The evidence can be read both ways. Consider an often cited study of federal appellate judging by Sunstein, Schkade, and Ellman (recently published as a book). The authors declare that “No reasonable person seriously doubts that ideology, understood as normative commitments of various sorts, helps to explain judicial votes.” Their study found statistically significant differences in the votes of Republican and Democratic judges (though not in all categories of cases), and they found panel effects from mixed panels. Politics clearly matters, but, again, how much? The fact remains that the overwhelming proportion of appellate decisions are unanimous (usually around 90%). Accordingly, while the thrust of their article emphasizes political factors, the authors acknowledge that “It would be possible to see our data as suggesting that most of the time, the law is what matters, not ideology.” A “statistically significant” finding means that the differences and correlations found are not due to random variations; nonetheless, in proportion to the total the differences that show up can still be marginal.

To shed some light on this puzzle, try the following simple thought experiment.

Imagine two judges, both with politically conservative personal views: One decides cases with a conscious orientation that strives to abide by the binding dictates of applicable legal rules to come up with the most correct legal interpretation in each case (the Consciously Bound judge, CB); a second judge decides cases with a conscious orientation that strives to achieve ideologically preferred ends in each case, and interprets and manipulates the legal rules to the extent necessary to achieve the ends desired (the Consciously End-Oriented judge, CEO).

Add four realistic conditions to this scenario. First, notwithstanding having a legally bound conscious orientation, CB is subconsciously influenced by and sees the law through background personal views; the legal interpretations of CB are thus not completely free of political influences in this subconscious sense. Second, CEO is not able to achieve ends with total disregard for conventional legal understandings because the decisions must be legally plausible and have the external appearance of being rule bound. Third, in a large (but not total) subset of cases the law does not clearly point to a single outcome, though usually one outcome can be ranked as more legally compelling or defensible than others. Finally, in a subset of cases, the legal rules are open (no particular outcome can be ranked above any other) or they invite the judge to render a judgment based upon non-legal factors.

Now, imagine that, in a given case, both judges arrive at precisely the same (politically conservative) outcome, supported by identical written decisions; they would have joined opinions had they served on the same panel. They are led to the same result and use the same reasoning because they adopt the same theory of constitutional interpretation. The difference is that CB settles upon the theory as the correct way to interpret the Constitution following a sincere and exhaustive study of constitutional law, whereas CEO settles upon the theory because it tends to support the outcomes the judge personally prefers, and CEO is willing to depart from or “adjust” the theory when necessary to achieve a desired end in particular cases.

Interestingly, a behaviorist study would code these two cases in exactly the same way: as a legal decision that aligns with (and hence can be explained by) their conservative political ideologies. Indeed, by all external appearances the decisions are exactly the same. Yet this misses fundamental differences in their reasoning processes and in the contrasting way they would be normatively judged by others. CB is acting in a rule bound fashion, consistent with the duty of judges within our system, while CEO is abusing his power as a judge by engaging in a manipulative (insincere) interpretation of the law to advance a desired political end.

When we move away from this single case to examine the run of cases, and other judges, the significant differences between these judges and their respective orientations will be evident. While both judges are politically conservative, their decisions will not completely overlap. The conservative CEO will have a higher proportion of decisions that achieve politically conservative ends, because that is his overarching orientation, whereas the conservative CB will rule for the strongest legal answer even when that does not comport with her conservative political views.

The largest disparity will show up when comparing the decisions of conservative CEOs and liberal CEOs, because both are consistently reasoning toward opposite outcomes. Nonetheless, there will be some overlap in their decisions, in those cases when the applicable legal rules cannot plausibly be interpreted to achieve contrary politically desired outcomes—the politically oriented judge of one persuasion is happy to rule this way, while the judge with the opposing persuasion cannot avoid it (for the sake of simplicity, I am ignoring potential panel effects).

Note also that a conservative CB judge and a liberal CB judge will show a substantial agreement in their decisions—all those cases in which conventional legal understandings point to a strongest or most correct or most defensible legal answer.

Critically, the level of agreement in decisions that conservative and liberal CEOs share will be lower than the level of agreement in decisions that conservative and liberal CBs share. This is because, owing to the indeterminacy of law, the frequency of situations in which the conventions of the legal tradition prohibit a particular outcome will be lower that then frequency of situations in which one legal outcome can be ranked as stronger than any other—the former is a more stringent requirement that is harder to meet when indeterminacy exists.

With this scenario in mind—which is admittedly grossly oversimplified and filled with speculative assertions—we can perhaps interpret the findings of social scientific studies of judicial decision-making in a more refined manner. The high degree of unanimity of appellate decisions suggests that most judges, whether liberal or conservative, are CBs consciously striving to find the strongest legal answer (if they were CEOs, agreement would be lower). Nevertheless, their agreement is not total, in part because even when conscientiously engaging in this task they will subconsciously interpret the law through the lens of their background views (leading to some divergence in interpretations), and furthermore because sometimes the law runs out or calls for a political decision to be made. The correlations that show up between legal decisions and background attitudinal profiles can be attributed to these factors (in addition to the fact that the law itself is sometimes substantively conservative in thrust or liberal in thrust).

The significant point is that CB judges are rule bound in the only way humanly possible—that is, by consciously striving to decide according to the strongest legal answer. Even though politics still has some play (subconsciously at least), to condemn this as inappropriately “political” is to demand the impossible. Little can be done about subconscious influences on thought (although we can arguably be on guard and strive to be aware of them, there are limits to this).

Equally important, by contrast, CEO judges can be condemned as being inappropriately political, because they are not committed to and are not in fact striving to decide according to the strongest legal answer. Realism notwithstanding, every judge takes an oath to faithfully apply the law, which is the role they play in the overall legal system. Thus it is proper to condemn them for failing to consciously strive to live up to the duty they have undertaken (just as social scientist who look only for confirming evidence for their pet theory and ignore or conceal disconfirming evidence can be condemned for failing to live up to the ideals of science).

Now imagine a legal system with a judiciary filled with CEO’s. Although it might look the same from the outside (the decisions in both would be supported by legal reasoning), it would be a very different legal system from one filled with CBs, exhibiting a lower level of agreement and greater variation. Judge Posner’s pragmatic adjudicators, to return to the previous post, reason more like CEOs (though with greater candor) than like CBs.

For some time now there has been a back and forth debate over the extent to which politics matters in judicial decision-making. Most law professors and political scientists think it matters a great deal; many judges say it matters less than is widely assumed by skeptics; but no one denies that it comes into play.

This thought experiment suggests that the issue can be framed in a more refined way that distinguishes those judges who strive to come to the strongest legal answer from those judges who are more result oriented. Although politics will have an effect on both groups of judges, it will be limited in the former to the level of politics that is unavoidable. They are doing the best they can, which cannot be said about the judges who are consciously striving to achieve particular ends. In reality, judges likely fall on a spectrum, and individual judges may well shift from one orientation to another depending upon the subject matter or situation.

Again, this is a realistic view of judging, but one that appreciates the fundamental importance of the fact that judges must decide cases with a conscious commitment to follow the law. The design and operation of our system depends upon this commitment.