The Behavior of Federal Judges

Lee Epstein, William M. Landes, Richard A. Posner

• Publisher: Harvard University Press
• Year: 2013
• ISBN:
  9780674070684
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Judges play a central role in the American legal system, but their behavior as decision-makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made.The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In the authors' view, this model describes judicial behavior better than either the traditional "legalist" theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes.

CHAPTER 1

A Realistic Theory of Judicial Behavior

Judicial responsibility . . . connotes the recurring choice of one policy over another.

—Roger J. Traynor¹

The courts must address themselves in some instances to issues of social policy, not because this is particularly desirable, but because often there is no feasible alternative.

—Henry J. Friendly²

In a recent book one of us listed and summarized nine theories of judicial behavior,³ but then proceeded to integrate them into a single theory, that of the judge as a participant in a labor market—that is, as a worker.⁴ That is the approach we take in this book to creating a model of judicial behavior that generates hypotheses testable with data.

What kind of worker is a judge? Well, he is not a freelance writer, a proprietor, a composer or other independent artist, or an entrepreneur; he is a government employee. In economic terms he is an agent; the government is the principal. To understand an agent’s behavior requires understanding his incentives and constraints, some personal and others imposed by the principal.

Empirical research cannot be conducted in a vacuum. The researcher has to have an idea of what facts about a matter are interesting, and theory may help him to identify those facts. We think the most fruitful theory to guide empirical study of judicial behavior is one of self-interested behavior, broadly understood, in a labor-market setting. Our premise is that judges, at least in case law systems, which are characteristic of nations that derive their legal system from England, are not calculating machines. Judges in a system that allows them a good deal of discretion, by granting them (in the case of federal judges) secure tenure but not providing rules of decision that make judging the mechanical application of rules to facts in all cases, are best understood as imperfect agents of a diffuse principal.

Three Concepts of Legal Realism

It has long been understood that American judges exercise, at least occasionally (and at the Supreme Court level much more than occasionally), a legislative or policymaking role, as acknowledged by Henry Friendly and Roger Traynor, the authors of the epigraphs that open this chapter. They were two of the most distinguished American judges of the modern era, and the passages we quoted state a position that was orthodox when they wrote them. Similar passages could be quoted from distinguished predecessors of Friendly and Traynor, such as Oliver Wendell Holmes, Louis Brandeis, Benjamin Cardozo, Learned Hand, and Robert Jackson, from leading academics and practitioners, and from presidents such as Franklin Roosevelt and philosophers such as John Dewey. The antecedents go as far back as Plato’s dialogues, before there was a legal profession. In the Apology Socrates notes that each judge (really juror—there were no professional judges) “has sworn that he will judge according to the laws and not according to his own good pleasure”—but in Gorgias Socrates predicted that his trial would be the equivalent of the trial of a doctor prosecuted by a cook before a jury of children, and in the Republic Thrasymachus powerfully argues that justice is simply the will of the stronger. That is a common view of the legislative process (and therefore a view likely to be descriptive of judges when they exercise legislative powers), memorably articulated and embraced by Holmes when he said, “All that can be expected from modern improvements is that legislation should easily and quickly, yet not too quickly, modify itself in accordance with the will of the de facto supreme power in the community. . . . The more powerful interests must be more or less reflected in legislation, which, like every other device of man or beast, must tend in the long run to aid the survival of the fittest.”⁵

The first full articulation of the realist conception of judging can be found in Jeremy Bentham’s Introduction to the Principles of Morals and Legislation (1780). A century later Holmes gave it a slogan on the first page of his book The Common Law (1881): “The life of the law has not been logic; it has been experience.” The same conception was articulated by Cardozo and Roscoe Pound, and by the self-described legal realists of the 1920s and 1930s, such as Jerome Frank and Karl Llewellyn, and it has been refined by political scientists, economists, psychologists, and sociologists, and also by lawyers—increasingly, law professors who have degrees in other fields as well as in law—who adopt a social-scientific approach to law.

Every competent observer knows that American judges at the appellate level create rules of law, both explicitly in common law fields and implicitly by interpretation of constitutional and statutory provisions, and that this is inevitable, given the nature of American government. Not only constitutional law—obviously—but also antitrust law, labor law, securities law, pension law, and so on are largely the result of discretionary judgments made by judges. That is why confirmation hearings for federal judges are often so contentious, why judicial elections (common at the state level) attract large campaign contributions, and why proposals to make state judges appointed rather than elected are strongly opposed. Judges like to refer to Congress and the Presidency as the “political branches” of government, implying self-servingly that the judiciary is apolitical. That is almost true if “politics” is equated with partisan politics, but it should not be. Decisions influenced by a political ideology are political, and many judicial decisions are so influenced.

The term “legal realism” is sometimes used to denote a jurisprudential approach rather than judicial behavior as such—a jurisprudential approach that has regard only for the consequences of a decision for the parties to the case before the court, and thus that ignores systemic consequences, such as the effect on the efficacy of law if precedent, clear statutory text, or other conventional sources of legal meaning are disregarded. Legal realism so regarded is a brand of shortsighted pragmatism that inflects the consequences for the parties with the judge’s political preferences or personal sentiments. Legal realism in this sense has strongly influenced the approach of political scientists to judicial behavior—naturally; political scientists are students of politics and study government agencies and officials as political organs and actors, and judges are government officials.

The defensible realisms—realism about the judge as a human being exercising discretionary authority, and realism as a jurisprudential theory that emphasizes the judge’s legislative or policymaking role (the indefensible concept of judicial realism is the assumption that judicial behavior in the American system is guided entirely by political, religious, sentimental, or other personal, subjective factors)—are linked. If the judge has to exercise discretion, implying that he cannot in all cases just mechanically apply rules to facts to yield a decision (even assuming unrealistically that fact-finding, at least, is mechanical and unproblematic), then to decide a case he is bound sometimes to have to fall back on intuitions of policy; and often they will be intuitions generated by ideology. He cannot just throw up his hands and refuse to decide a case on the ground that the “law” in some narrow sense yields no clue to how to decide.

But it would be more precise to describe judicial decision-making in areas in which mechanical application of rules that have been given to rather than made up by judges is infeasible as subjective rather than as ideological, because nonlegalistic factors other than ideology influence decisions, such as the judge’s mood, his energy,⁶ his idiosyncratic reaction to the parties or their lawyers, or his lack of interest in the case. Ideology (or, more broadly, “values”) may be the subjective influence on judges that is most significant for the society, but other subjective influences should not be ignored and we do not ignore them, but have called in economics to help us understand them.

Economics has already contributed to the development of a realistic theory of judicial behavior by emphasizing the judge as a rational actor—a maker of rational choices—in the standard economic sense.⁷ In this theory the ideological and the legalist approaches to deciding cases are not posited, but instead are derived from a judicial utility function—a model of rational response to preferences and aversions not limited to legalism and ideology. This book refines and extends that approach.

Other social-scientific research on judicial behavior has tended to be empirical to the virtual exclusion of theory—in other words, it has tended to lack “microfoundations.” It has tended to posit, rather than to derive from a utility function, such propositions as that the goal of Supreme Court Justices is to produce outcomes that coincide with the Justices’ ideological preferences, which the Justices can do because they control their docket, have life tenure, are not subject to reversal by a higher court, and are not ambitious for higher office, and so, being minimally constrained, can pursue that goal by voting in cases in accordance with their ideological preferences.⁸ That is too simple an account of the Justices’ behavior, because it neglects factors that deflect Justices from the wholehearted pursuit of their goals.

An empirical literature adds complexity by emphasizing the strategic interactions of judges (including Supreme Court Justices) who are connected either collegially (as members of the same appellate court or panel) or hierarchically (as lower court and higher court judges). We examine those issues in this book but set others aside, such as “strategic retirement”—the idea that Justices accelerate or delay their retirement in order to maximize the probability that their successors will be ideologically akin to them.⁹ We also set aside strategic interaction between the courts (especially the U.S. Supreme Court) and other branches of government. The Constitution creates a system of checks and balances among the branches, and the courts both engage in and are subject to checking and balancing. To keep this book within reasonable bounds we do not discuss that form of judicial strategizing, though in the next chapter we cite some of the pertinent literature.

Political scientists were the first social scientists to study judicial behavior; economists, and academic lawyers influenced by economics, are Johnny-come-latelies. Although some of the political science literature now borrows from economics, we’ll see that economics can further enrich political science by relating political behavior by judges to incentives and constraints, in the spirit of economic analysis of rational behavior, and by doing so can enable, among other things, a more precise understanding of the role and character of ideology in the behavior of American judges.

The Labor-Market Theory of Judicial Behavior

Consider the benefits and costs of work as they appear to a worker. Rarely are they only pecuniary. A worker will care about what he is paid, of course, but a paycheck is not the full measure of a worker’s “income” in a real as distinct from a solely pecuniary sense of that word. Nor are readily monetizable fringe benefits such as health insurance and a pension the only components of real income besides wages. Some benefits of work are difficult to monetize, such as tenure or other forms of job security. Others have no monetary dimension at all, unlike job tenure, which affects expected earnings. Nonmonetizable benefits, which are important in jobs such as a judgeship that attract persons who could generally earn more money in a different branch of the legal profession, include the intrinsic interest of the work and the power or prestige and pride or self-esteem (for example, the sense of satisfaction at being employed in a socially useful job) that the job confers on him. The social dimension of work—interactions with colleagues, staff (for example, law clerks), and customers (lawyers and litigants are rough analogs, in judicial work, of customers—though not of customers who can invoke the slogan “The customer is always right”)—can also be a source of pleasure, though also of pain. Promotion prospects may be important too; the value of a job to a worker includes the prospect of higher pay or more satisfying work as he climbs the promotion ladder. And for judges, as for some other classes of public employee, there is the “revolving door” option to consider.

And the costs of work? One cost—the risk of losing one’s job (and perhaps having great difficulty finding another, comparable one) or of suffering a pay cut—is just the obverse of the benefit of job security, which eliminates or reduces such risks. Other costs of work include the forgone value of leisure, the expenditure of energy in working, and adverse working conditions, such as long commutes or heavy travel (except for court of appeals judges in some of the circuits that embrace a large geographical region), boring or physically strenuous or even dangerous work, and criticism by superiors or members of the public. Leisure preference can make work costly in nonpecuniary terms by increasing the opportunity costs of work (the benefits of leisure that are forgone when one is working). So can effort aversion (the desire for a “quiet life”), which is a broader concept. Effort aversion is affected not only by hours worked but also by the intensity of the work—the effort invested in it—plus anything else that makes it harder or less agreeable, such as physical or emotional strain. Like the nonpecuniary satisfactions of work, effort aversion can be expected to play a particularly large role in the utili...

Table of contents

• Cover
• Title Page
• Copyright
• Contents
• List of Figures
• List of Tables
• Epigraph
• General Introduction
• Technical Introduction
• 1. A Realistic Theory of Judicial Behavior
• 2. The Previous Empirical Literature
• 3. The Supreme Court
• 4. The Courts of Appeals
• 5. The District Courts and the Selection Effect
• 6. Dissents and Dissent Aversion
• 7. The Questioning of Lawyers at Oral Argument
• 8. The Auditioners
• Conclusion: The Way Forward
• Acknowledgments
• Index