how judges think

8/14/2019 HOW JUDGES THINK

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How Judges Think

Richard A. Posner

HARVARD UNIVERSITY PRESS

Cambridge, Massachusetts

London, England

2008


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Copyright 2008 by the President and Fellows of Harvard College

All rights reserved

Printed in the United States of America

A Caravan book. For more information, visit www.caravanbooks.org

Library of Congress Cataloging-in-Publication Data

Posner, Richard A.

How judges think / Richard A. Posner.

p. cm.

Includes index.

ISBN-13: 978-0-674-02820-3 (alk. paper)1. Judicial process. 2. Judicial processUnited States. I. Title.

K2300.P67 2008

347.012dc22 2007037826


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Contents

Introduction 1

PART ONE THE BASIC MODEL

1 Nine Theories of Judicial Behavior 192 The Judge as Labor-Market Participant 57

3 The Judge as Occasional Legislator 78

4 The Mind of the Legislating Judge 93

PART TWO THE MODEL ELABORATED

5 The Judicial Environment:

External Constraints on Judging 125

6 Altering the Environment: Tenure and Salary Issues 158

7 Judicial Method: Internal Constraints on Judging 174

8 Judges Are Not Law Professors 2049 Is Pragmatic Adjudication Inescapable? 230

PART THREE JUSTICES

10 The Supreme Court Is a Political Court 269

11 Comprehensive Constitutional Theories 324

12 Judicial Cosmopolitanism 347

Conclusion 369

Acknowledgments 379

Index 381
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Introduction

In my youthful, scornful way, I recognized four kinds of judgments;first the cogitative, of and by reflection and logomancy; second,aleatory, of and by the dice; third, intuitive, of and by feeling orhunching; and fourth, asinine, of and by an ass; and in that sameyouthful, scornful way I regarded the last three as only variants of each

other, the results of processes all alien to good judges. 1

Ivan Karamazov said that if God does not exist everything is permitted,

and traditional legal thinkers are likely to say that if legalism (legal for-

malism, orthodox legal reasoning, a government of laws not men, the

rule of law as celebrated in the loftiest Law Day rhetoric, and so forth)

does not exist everything is permitted to judgesso watch out! Legal-

ism does exist, and so noteverythingis permitted. But its kingdom has

shrunk and grayed to the point where today it is largely limited to rou-

tine cases, and so a great dealis permitted to judges. Just how much is

permitted and how they use their freedom are the principal concerns of

this book. These concerns have been made especially timely by the star-

tling (to the nave) right turn by the Supreme Court in its latest term

(ending in June 2007).2 The turn resulted from the replacement of a

moderately conservative Justice (OConnor) by an extremely conserva-

tive one (Alito), and so underscores the question of the personal and po-

litical elements in judging and thus of the sense in which the nation is

ruled by judges rather than by law. If changing judges changes law, it is

not even clear what law is.

1

1. Joseph C. Hutcheson, Jr., The Judgment Intuitive: The Function of the Hunch in Judi-

cial Decision, 14Cornell Law Quarterly274, 275276 (1929).2. Linda Greenhouse, In Steps Big and Small, Supreme Court Moved Right: A 54 Dy-

namic, with Kennedy as Linchpin, New York Times,July 1, 2007, 1, p. 1.


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I feel a certain awkwardness in talking about judges, especially appel-late judges (my main concern), because I am one. Biographies are more

reliable than autobiographies, and cats are not consulted on the princi-

ples of feline psychology. At the same time, I am struck by how unreal-

istic are the conceptions of the judge held by most people, including

practicing lawyers and eminent law professors, who have never been

judges3and even by some judges. This unrealism is due to a variety of

things, including the different perspectives of the different branches of

the legal professionincluding also a certain want of imagination. It is

also due to the fact that most judges are cagey, even coy, in discussing

what they do. They tend to parrot an official line about the judicial pro-

cess (how rule-bound it is), and often to believe it, though it does not

describe their actual practices.4

There is also the sense that judging re-ally is a different profession from practicing or teaching law, and if youre

not in it you cant understand it. I remember when I was appointed re-

ceiving a note from a court of appeals judge in another circuit with

whom I was acquainted, welcoming me to the club. This book parts

the curtains a bit.

The difficulty outsiders have in understanding judicial behavior is

due partly to the fact that judges deliberate in secret, though it would be

more accurate to say that the fact that they do not deliberate (by which I

mean deliberatecollectively) very much is the real secret.5Judicial delib-

eration is overrated. English judges traditionally did not deliberate at

all, as that would have violated the ruling principle of orality, whereby

everything that judges did had to be done in public so that their behav-

2 Introduction

3. A notable example is Harvard law professor Henry Harts time-and-motion study of Su-

preme Court Justices: Henry M. Hart, Jr., The Supreme Court, 1958 Term: Foreword: The

Time Chart of the Justices, 73 Harvard Law Review84 (1959), which I discuss in chapter 10.

4. Robert Keeton, a federal district judge and before that a Harvard Law School professor,

acknowledged in his treatise on judging that judges make value-laden rulings. Robert E.

Keeton, Keeton on Judging in the American Legal System 15 (1999). But he did not explore the

sources of those values. His treatise has no index entry for either politics or ideology.

5. Though a pretty open one. When I first came on the court [the U.S. Court of Appeals for

the District of Columbia Circuit], I imagined that conferences [on cases] would be reflective,

refining, analytical, dynamic. Ordinarily they are none of these. We go around the table and

each judge, from junior to senior, states his or her bottom line and maybe a brief explanation.

Even if the panel is divided, the discussion is exceedingly crisp. The conference changes few

minds. Assignments are made, life goes on. Patricia M. Wald, Some Real-Life Observationsabout Judging, 26Indiana Law Review173, 177 (1992). Chief Justice Rehnquist described Su-

preme Court conferences similarly. See chapter 10.


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ior could be monitored;6

hence those seriatim opinions that baffle theAmerican law student and perhaps the English one as well. In almost all

cases a brief discussion among the judges before deciding enables con-

vergence on a single majority opinion in lieu of a separate opinion by

each judge.

The confidentiality of the judicial process would not matter greatly to

an understanding and evaluation of the legal system if the consequences

of judicial behavior could be readily determined. If you can determine

the ripeness of a cantaloupe by squeezing or smelling it, you dont have

to worry about the produce clerks mental processes. But the conse-

quences of judicial behavior are often more difficult to determine and

evaluate than the consequences even of other professional services, such

as medicine. Many of the decisions that constitute the output of a courtsystem cannot be shown to be either good or bad, whether in terms

of consequences or of other criteria, so it is natural to ask whether there

are grounds for confidence in the design of the institution and in the

competence and integrity of the judges who operate it.

The secrecy of judicial deliberations is an example of professional

mystification. Professions such as law and medicine provide essential

services that are difficult for outsiders to understand and evaluate. Pro-

fessionals like it that way because it helps them maintain a privileged

status. But they know they have to overcome the laitys mistrust, and

they do this in part by developing a mystique that exaggerates not only

the professionals skills but also his disinterest.7 Judges have been doing

this for thousands of years and have become quite good at itso good asto have achieved a certain opacity even to their fellow legal profession-

als, including law professors as well as practicing lawyers. Judges have

convinced many peopleincluding themselvesthat they use esoteric

materials and techniques to build selflessly an edifice of doctrines un-

marred by willfulness, politics, or ignorance.

There is nevertheless considerable dissatisfaction with our legal sys-

tem,8 as there is with our system of health care. Like health care, law is

Introduction 3

6. Robert J. Martineau, Appellate Justice in England and the United States: A Comparative

Analysis101103 (1990).

7. Richard A. Posner,The Problematics of Moral and Legal Theory,ch. 3 (1999).

8. See, for example, Philip K. Howard,The Collapse of the Common Good: How AmericasLawsuit Culture Undermines Our Freedom (2001); Walter K. Olson, The Litigation Explosion:

What Happened When America Unleashed the Lawsuit(1991).


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said to be too expensive (it certainly costs more per capita than the le-gal systems of the nations with which we tend to compare the United

States), too intrusive into private and commercial life, too prone to error,

too uncertain, and simply too large (the nation has a million lawyers).

For these reasons it is contended to be a source of immense indirect

costs on top of the expenses to the litigants. The accusations may be

true, though assessing their truth is not the project of this book and is

especially daunting because it is even harder to estimate the benefits of

our legal system than its costs. Legal rights are options that may have

value even if never exercised, but how to value such options? And legal

duties deter harmful conductbut how effectively is extremely difficult

to determine too.

Supposing the criticisms have merit, the question is whom to blame.If all that judges do is apply rules made by legislatures or the framers

of the Constitution (or follow precedents, made by current or former

judges, that are promptly changed if they prove maladapted to current

conditions), then the responsibility for the mess (if it is a mess) must lie

with the legislators or the Constitutions framers, or with the political

process more generally. But suppose that most rules laid down by legis-

lative bodies are all right and the problem is willful judgesjudges who

make up their own rules, or perhaps ignore rules altogether, instead dis-

pensing shortsighted justice on the basis of the equities of each case,

and as a result create enormous legal uncertainty. The policy implica-

tions and hence the path of reform would depend on which explanation

was correct (both might be). And what if the basic problem is that thestructure of American government, and the American political culture

more broadly,compeljudges to make rather than just apply rules of law?

What looks to the critics of the judiciary like willfulness might actually

be the good-faith performance of a vital judicial role, and if judges re-

fused to play it, insisting instead, as some legal thinkers urge (the le-

galists, of whom more shortly), on limiting themselves to passively ap-

plying rules made elsewhere, the legal system might be worse than it is.

The answers are bound up with issues of judicial behavior. To il-

lustrate, everyone will agree that contracts are vital to the operation of

markets, and almost everyone will agree that the legal enforcement of

contracts is important to the efficacy of contracts. Contract law is ad-

ministered by judges. (Sometimes they are private judgesarbitrators

4 Introduction


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but the effectiveness of arbitration depends on the enforceability of arbi-trators awards.) Being a part of the common law, it is also created by

them. The law they create and the way in which they enforce it are delib-

erate acts, just as business decisions and decisions by legislatures are de-

liberate acts. Whether judicially made doctrines and decisions are good

or bad may depend therefore on the judges incentives, which may in

turn depend on the judges cognition and psychology, on how persons

are selected (including self-selected) to be judges, and on the terms and

conditions of judicial employment. Similarly, American antitrust law is

far more the creation of judicial decisions than of antitrust legislation:

the most important antitrust laws are as skimpy and vague as most pro-

visions of the Bill of Rights. We ought therefore to be interested in how

antitrust law has been shaped by the motivations, constraints, and otherinfluences that play on judges. The Supreme Court has actually called

the Sherman Act a common-law statute,9 and common law is of course

made by judges, not legislators.

The judicial mentality would be of little interest if judges did noth-

ing more than apply clear rules of law created by legislators, adminis-

trative agencies, the framers of constitutions, and other extrajudicial

sources (including commercial custom) to facts that judges and juries

determined without bias or preconceptions. Then judges would be well

on the road to being superseded by digitized artificial intelligence pro-

grams.10 But even legal thinkers who believe passionately that judges

should be rule appliers and unbiased fact finders and nothing more do

not believe that thats how all or even most American judges behave allthe time. Our judges have and exercise discretion. Especially if they are

appellate judges, even intermediate ones, they are occasional legisla-

tors. To understand their legislative activity, one must understand their

motivations, capacities, mode of selection, professional norms, and psy-

chology.

Achieving a sound understanding of judicial behavior is thus of more

than merely academic interest; it is a key to legal reform. Yet its academic

interest is also considerable because of the unusual incentives and con-

straints, so unlike those in most jobs, that shape judicial behavior, espe-

Introduction 5

9. Leegin Creative Leather Products, Inc. v. PSKS, Inc., 127 S. Ct. 2705, 2720 (2007).

10. I do not know why originalists and other legalists are not AI enthusiasts.


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cially in the U.S. federal system, and because the analysis of that behav-ior may offer insights into the general subject of managing uncertainty.11

Uncertainty is as salient a feature of our legal system as expense is of our

medical system, and decision making under uncertainty is a deservedly

important topic in economics, organization theory, and other fields.

Like other writing by judges about judging, this book is heavily influ-

enced by my own judicial experience, consisting of more than a quarter

century as a federal court of appeals judge (seven years as chief judge of

my court), with occasional forays into the district court to preside at tri-

als, mainly civil jury trials. But the mode of the book is scholarly rather

than confessional. In this respect it resembles my book on the regulation

of sexuality, a subject otherwise remote from the study of judicial behav-

ior. That book was motivated by my belated discovery that judgesknow next to nothing about sex beyond their own personal experience,

which is limited, and one of my aims was to bring to the attention of

the legal profession the rich multidisciplinary literature on the sub-

ject.12 Judges, like other refined people in our society, are reticent

about talking about sex, but judges are also reticent about talking about

judging, especially talking frankly about it, whether to their colleagues

or to a larger professional audience. This reticence makes the scholarly

study of judicial behavior at once challenging and indispensable.

The book emphasizes positive rather than normative analysiswhat

judges do, not what they should dobut I do discuss normative issues

and propose a few modest reforms, as well as making occasional sugges-

tions for further research. Positive and normative analysis cannot easilybe separated when one is dealing with peoples deliberate actions, for

unless they are evil or cynical people, the best explanation for their ac-

tions is unlikely to be that they are deliberately flouting the norms of

their society. If it is deeply wrong for a judge to base a decision on the

flip of a coin, an aleatory theory of judicial behavior is unlikely to be

sound. The grounds of a judges decisions may be wrong, but they are

6 Introduction

11. About which I have written at length in relation to catastrophic risk and also to the re-

form of the U.S. intelligence system. See my books Catastrophe: Risk and Response(2004);Pre-

venting Surprise Attacks: Intelligence Reform in the Wake of 9/11 (2005); Uncertain Shield: The

U.S. Intelligence System in the Throes of Reform (2006); Countering Terrorism: Blurred Focus,

Halting Steps(2007).

12. Richard A. Posner,Sex and Reason1, 4 (1992).


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unlikely to be outside the ballpark of norms and values prevailing in thesociety.

The books primary focus is on federal appellate judges, including Su-

preme Court Justices (the subject of Part Three, though discussed in the

other parts as well). But there is some discussion of trial judges, state

court judges, judges in foreign nations similar to the United States,13 and

arbitrators (private judges).

I begin with a discussion of the existing theories (attitudinal, strate-

gic, organizational, economic, psychological, sociological, pragmatic, phe-

nomenological, and legalist) of judicial behavior and of the evidence for

and against each. These theories are expounded in a rich literature ig-

nored by most academic lawyers (though this is changing14) and by vir-

tually all judges.15

The theories provide background and support to myown analysis, which draws heavily on labor economics and on the psy-

chology of cognition and emotion. It is the stress I lay on psychology

that has led me to entitle the bookHow Judges Thinkrather thanJudicial

Behavior.

My analysis and the studies on which it builds find that judges are not

moral or intellectual giants (alas), prophets, oracles, mouthpieces, or

calculating machines. They are all-too-human workers, responding as

other workers do to the conditions of the labor market in which they

work. American judges, at least, are not formalists, or (the term I prefer,

as it carries less baggage) legalists. Legalists decide cases by applying

preexisting rules or, in some versions of legalism, by employing alleg-

edly distinctive modes of legal reasoning, such as legal reasoning byanalogy. They do not legislate, do not exercise discretion other than in

ministerial matters (such as scheduling), have no truck with policy, and

Introduction 7

13. That is, nations that have an independent judiciary, as many do not. See, for exam-

ple, Gretchen Helmke, Courts under Constraints: Judges, Generals, and Presidents in Argentina

(2005);Law and Economic Development(Hans-Bernd Schfer and Angara V. Raja eds. 2006).

14. See, for example, Gregory C. Sisk and Michael Heise, Judges and Ideology: Public and

Academic Debates about Statistical Measures, 99 Northwestern University Law Review 743

(2005).

15. The richness is well illustrated by James L. Gibson, From Simplicity to Complexity:

The Development of Theory in the Study of Judicial Behavior, 5Political Behavior7 (1983). As

the date of his article shows, the literature has been around for many years. That it has not

caught on with the legal professoriat may be in part because of its death of implications for the

understanding or reform of legal doctrine and in part because it challenges the mystique of an

apolitical judiciary, in which lawyers and law professors are heavily invested.


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do not look outside conventional legal textsmainly statutes, constitu-tional provisions, and precedents (authoritative judicial decisions)for

guidance in deciding new cases. For legalists, the law is an autonomous

domain of knowledge and technique.16 Some legalists are even suspi-

cious of precedent as a source of law, because it is infected by judicial

creativity.

But if judges are not legalists, what are they? Might they simply be

politicians in robes? Empirical scholars have found that many judicial

decisions, by no means limited to the Supreme Court, are strongly influ-

enced by a judges political preferences or by other extralegal factors,

such as the judges personal characteristics and personal and profes-

sional experiences, which may shape his political preferences or operate

directly on his response to a case. No responsible student of the judicialsystem supposes that politics (in a sense to be explained) or personal

idiosyncrasy drivesmostdecisions, except in the Supreme Court, which

indeed is largely a political court when it is deciding constitutional

cases. Legalism drives most judicial decisions, though generally they are

the less important ones for the development of legal doctrine or the im-

pact on society.

But one must be careful about dividing judicial decisions (or judges)

into legalist and political, or, what is closely related, asserting a Mani-

chaean dualism between law and politics. The dualism works only when

law is equated to legalism, and that is too narrow. Justice Scalia was

not stepping out of his proper role as a judge when he said inRichardson

v. Marshthat the rule that juries are presumed to follow their instruc-tions is a pragmatic one, rooted less in the absolute certitude that the

presumption is true than in the belief that it represents a reasonable

practical accommodation of the interests of the state and the defendant

in the criminal justice process.17 This is just as proper a judicial state-

8 Introduction

16. Legal formalists emphasize the specifically legal virtues of the clarity, determinacy, and

coherence of law, and try to sharpen the distinction between legislation and adjudication.

Roughly, they can be divided into rule-formalists and concept-formalists. The former place

more value on determinacy, emphasizing the importance of clear rules and strict interpretation,

while the latter emphasize the importance of system and principled coherence throughout the

law. Thomas C. Grey, Judicial Review and Legal Pragmatism, 38 Wake Forest Law Review

473, 478 (2003). Modern American formalistscomprising what one might call the School of

Scaliaare mainly rule-formalists. Id. at 479. The most important thing [for Scalia] is that lawshould be put in the form of rules wherever possible. Id. at 499.

17. 481 U.S. 200, 211 (1987).


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ment as the legalist assertions for which Scalia (he of such pronounce-ments as that the rule of law is the law of rules18) is more famous.

This is so even though the statement has political implications. Criminal

defendants are at a disadvantage if a judges or prosecutors missteps can

be forgiven by the judges telling the jury to disregard them, for the bell

cannot be unrung; the jurors cannot exclude what they should not have

heard from their consideration of the defendants guilt.

Law in a judicial setting is simply the material, in the broadest

sense, out of which judges fashion their decisions. Because the materials

of legalist decision making fail to generate acceptable answers to all

the legal questions that American judges are required to decide, judges

perforce have occasionalindeed rather frequentrecourse to other

sources of judgment, including their own political opinions or policyjudgments, even their idiosyncrasies. As a result, law is shot through

with politics and with much else besides that does not fit a legalist

model of decision making.

The decision-making freedom that judges have is aninvoluntaryfree-

dom. It is the consequence of legalisms inability in many cases to decide

the outcome (or decide it tolerably, a distinction I shall elaborate), and

the related difficulty, often impossibility, of verifying the correctness of

the outcome, whether by its consequences or its logic. That inability,

and that difficulty or impossibility, create an open area in which judges

have decisional discretiona blank slate on which to inscribe their de-

cisionsrather than being compelled to a particular decision by the

law. How they fill in the open area is the fundamental question that thisbook addresses, though lurking in the background and occasionally

coming to the fore is the question how theyshouldfill it in.

Although judges often exercise a political judgment in the open area,

political is an equivocal term that must be carefully parsed before it

can be usefully applied to judicial behavior. It could refer to a judge

whose decisions reflect his loyalty to a political party. It could refer to a

judge whose decisions faithfully mirror the platform of a political party,

though as a matter of conviction rather than of party loyalty. It could re-

fer to a judge whose decisions reflect a consistent political ideology,

which might be liberal or conservative and thus correlated (though

Introduction 9

18. Antonin Scalia, The Rule of Law as a Law of Rules, 56 University of Chicago Law Re-

view1175 (1989).


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imperfectly) with the Democratic or Republican Party platform, butwhich might instead be an ideology embraced by neither major party,

such as libertarianism or socialism. The empirical literature that refutes

legalism as a complete or even approximate description of actual judicial

behavior does not distinguish among these different gradations of po-

litical. Political could even describe decisions based on purely techni-

cal policy judgments, judgments that involve finding the best means to

agreed-upon ends; any issue of governmental policy is in that sense po-

litical. At the opposite extreme, a judge might be political in a sense

divorced from policy: he might, like a legislator, use charm, guile, vote

trading, and flattery to induce other judges to go along with him, though

his aim might be to produce legalistic decisions. (He might thus be what

is called in a variety of nonpolitical settings a good politician.) Thestrategic theory of judicial behavior, discussed in chapter 1, emphasizes

political judging in this means rather than ends sense. Many legisla-

tors have no policy preferences of their own, but are merely political

brokers for their constituents. Judges, however, unless elected, do not

have constituents.

Ringing changes on the political might seem to exhaust the possible

nonlegalist factors in adjudication. It does not begin to. The possible

other factors (call them personal) include personality traits, or tem-

perament (and thus emotionality at one end of the temperament spec-

trum and emotional detachment at the other end), which are more or

less innate personal characteristics. They include personal background

characteristics, such as race and sex, and also personal and professionalexperience. The political or ideological factors that influence adjudi-

cation may themselves be by-products of personal factors rather than

products of an informed, disinterested, and coolly analytical study of

public issues. Also figuring in judicial decisions arestrategic consider-

ations, already alluded to, which need not be related to either the politi-

cal views or the personal characteristics of a judge. A judge might join

the majority opinion in a case not because he agreed with it but because

he thought that dissenting publicly would magnify the effect of the ma-

jority opinion by drawing attention to it. (Dissent aversion helps to

explain, as we shall see in chapter 1, the puzzling effect of panel compo-

sition on appellate decisions.)Institutionalfactorssuch as how clear or

unclear the law is, salary and workload, and the structure of judicial pro-

motionalso influence judicial behavior.

10 Introduction


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1

Nine Theories of Judicial Behavior

There are many positive (that is, descriptive as distinct from normative)

theories of judicial behavior.1 Their primary focus is, as one would ex-

pect, on explaining judges decisions. The theories are the attitudinal,

the strategic, the sociological, the psychological, the economic, the orga-

nizational, the pragmatic, the phenomenological, and, of course, what I

am calling the legalist theory. All the theories have merit and feed into

the theory of decision making that I develop in this book. But all are

overstated or incomplete. And missing from the welter of theoriesthe

gap this book endeavors to fill, though in part simply by restating and

refining the existing theoriesis a cogent, unified, realistic, and appro-

priately eclectic account of how judges actually arrive at their decisions

in nonroutine cases: in short, a positive decision theory of judging.I begin with the attitudinal theory,2 which claims that judges deci-

19

1. For reviews of the literature, see Lawrence Baum,Judges and Their Audiences: A Perspec-

tive on Judicial Behavior, ch. 1 (2006); Barry Friedman, The Politics of Judicial Review, 84

Texas Law Review 257 (2005). For an anthology suggestive of the diversity of the literature,

see Supreme Court Decision-Making: New Institutionalist Approaches (Cornell W. Clayton and

Howard Gillman eds. 1999).

2. See, for example, Jeffrey A. Segal and Harold J. Spaeth,The Supreme Court and the Attitu-

dinal Model Revisited(2002); Robert A. Carp and Ronald Stidham, Judicial Process in America

294 (2001) (tab. 101); William N. Eskridge, Jr., and Lauren E. Baer, The Supreme Courts

Deference Continuum: An Empirical Analysis (from Chevronto Hamdan) (Yale Law School,

May 11, 2007); Andrew D. Martin, Kevin M. Quinn, and Lee Epstein, The Median Justice on

the United States Supreme Court, 83 North Carolina Law Review 1275 (2005); Micheal W.

Giles, Virginia A. Hettinger, and Todd Peppers, Picking Federal Judges: A Note on Policy andPartisan Selection Agendas, 54Political Research Quarterly623 (2001); Tracey E. George, De-

veloping a Positive Theory of Decision Making on U.S. Courts of Appeals, 58Ohio State Law


16/24

sions are best explained by the political preferences that they bring totheir cases. Most of the studies that try to test the theory infer judges

political preferences from the political party of the President who ap-

pointed them, while recognizing that it is a crude proxy. The emphasis

is on federal judges, in particular Supreme Court Justices. State judges

are of course not appointed by the President, and sometimes the method

of their appointmentfor example, by nonpartisan electionmakes it

difficult to classify them politically.3

Justices and judges appointed by Democratic Presidents are predicted

to vote disproportionately for liberal outcomes, such as outcomes fa-

voring employees, consumers, small businessmen, criminal defendants

(other than white-collar defendants), labor unions, and environmental,

tort, civil rights, and civil liberties plaintiffs. Judges and Justices ap-pointed by Republican Presidents are predicted to vote disproportion-

ately for the opposite outcomes.

Other evidence of a judges political leanings is sometimes used in lieu

of the party of the appointing President, such as preconfirmation editori-

als discussing the politics or ideology of a judicial nominee.4 A neglected

possibility is a fourfold classification in which the intermediate cate-

gories would consist of judges appointed when the President and the

Senate majority were of different parties (divided government). How-

ever, Nancy Scherer finds no difference in the decisions of federal dis-

trict judges appointed by divided versus united government,5 and I

find only a small difference (as shown in Table 1 6) in the case of federal

court of appeals judges appointed by Republican Presidents. But when

20 The Basic Model

Journal 1635, 1678 (1998). For criticism, see Frank B. Cross, Political Science and the New

Legal Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92Northwestern Law Re-

view251 (1997); Barry Friedman, Taking Law Seriously, 4Perspectives on Politics261 (2006).

3. Paul Brace, Laura Langer, and Melinda Gann Hall, Measuring the Preferences of State

Supreme Court Judges, 62Journal of Politics 387 (2000); Carp and Stidham, note 2 above, at

296297.

4. Jeffrey A. Segal and Albert D. Cover, Ideological Values and the Votes of U.S. Supreme

Court Justices, 83 American Political Science Review 557 (1989); Segal et al., Ideological

Values and the Votes of U.S. Supreme Court Justices Revisited, 57 Journal of Politics 812

(1995). See also Martin, Quinn, and Epstein, note 2 above, at 12851300.

5. Nancy Scherer,Who Drives the Ideological Makeup of the Lower Federal Courts in a

Divided Government? 35Law and Society Review191 (2001).

6. Some of the classifications used in the data set from which the statistics in Tables 1 and 2

are drawn are erroneous, such as classifying all votes for plaintiffs in intellectual property casesas liberal. I have corrected such errors; for the details of the corrections and a fuller analysis

of the data, see William M. Landes and Richard A. Posner, Judicial Behavior: A Statistical Anal-

ysis (University of Chicago Law School, Oct. 2007).


17/24

the President is a Democrat, it makes a significant difference whether the

Senate is Democratic or Republican, probably because the Republican

Party is more disciplined than the Democratic Party and therefore better

able to organize opposition to a nominee.

Table 2 is similar to Table 1 except limited to currently serving judges.

Notice that the effects of divided government on judicial voting are more

pronounced than in Table 1, consistent with the strong Republican push

beginning with Reagan to tilt the ideological balance of the courts right-

ward. Notice also that federal judicial decisions as a whole tilt toward

Nine Theories of Judicial Behavior 21

Table 1 Judicial Votes in Courts of Appeals as Function of United versus DividedPresidency and Senate, 19252002 (in percent)

Republican President Democratic President

VoteRepublican

SenateDemocratic

SenateDemocratic

SenateRepublican

Senate

Conservative 55.8 55.9 49.6 55.3Liberal 37.1 35.9 43.5 37.9Mixed 7.1 8.2 6.8 6.8

Sources: Appeals Court Attribute Data, www.as.uky.edu/polisci/ulmerproject/auburndata.htm

(visited July 17, 2007);U.S. Court of Appeals Database,www.as.uky.edu/polisci/ulmerproject/

appctdata.htm, www.wmich.edu/nsf-coa/ (visited July 17, 2007). Votes were weighted to

reflect the different caseloads in the different circuits. Mixed refers to multi-issue cases in

which the judge voted the liberal side of one or more issues and the conservative side of theother issue or issues.

Table 2 Judicial Votes in Courts of Appeals as Function of United versus DividedPresidency and Senate, Judges Serving Currently (in percent)


VoteRepublican

SenateDemocratic

SenateDemocratic

SenateRepublican

Senate

Conservative 66.9 63.2 49.7 57.0Liberal 25.6 27.0 39.5 35.6Mixed 7.5 9.8 10.9 7.5

Sources: Appeals Court Attribute Data, www.as.uky.edu/polisci/ulmerproject/auburndata.htm(visited July 17, 2007);U.S. Court of Appeals Database,www.as.uky.edu/polisci/ulmerproject/



which the judge voted the liberal side of one or more issues and the conservative side of the

other issue or issues.


18/24

the conservative end of the spectrum and that the tilt is more pro-

nounced among currently serving judges.

Presidents differ in their ideological intensity, and taking account of

that difference can improve the accuracy of the attitudinal model. Seven

of the nine current Supreme Court Justices were appointed by Republi-

can Presidents, but it is more illuminating to note that four conservativeJustices were appointed by conservative Republicans (Scalia and Ken-

nedy by Reagan, and Roberts and Alito by the second Bush), two liberal

Justices by a Democratic President (Ginsburg and Breyer, appointed by

Clinton), and one liberal and two conservative Justices appointed by

moderate Republicans (Stevens by Ford, Souter and Thomas by the first

Bush). See Table 3.

There is also a divided-government effect in Supreme Court appoint-

ments, as shown in Table 4.

Whatever the method of determining a judges political inclinations,

and whatever the level of the judiciary (Supreme Court, federal courts of

appealson which there is now an extensive literature7or federal dis-

22 The Basic Model

Table 3 Ideology of Currently Serving Justices and the Appointing President

Presidents Ideology

Justices IdeologyConservativeRepublican

ModerateRepublican Democratic

Conservative 4 1 0Liberal 0 2 2

Table 4 Conservative and Liberal Supreme Court Justices as Function of Unitedversus Divided Presidency and Senate, Justices Serving Currently


JusticeRepublican

SenateDemocratic

SenateDemocratic

SenateRepublican

Senate

Conservative 3 2 0 0Liberal 0 2 2 0

7. Christina L. Boyd, Lee Epstein, and Andrew D. Martin, Untangling the Causal Effects of

Sex on Judging (Northwestern University School of Law and Washington University School of

Law and Department of Political Science, July 28, 2007); Cass R. Sunstein et al., Are Judges Po-


19/24

trict courts8

), the assumed inclinations are invariably found to explainmuch of the variance in judges votes on politically charged issues. The

hotter the issue (such as abortion, which nowadays is much hotter than,

say, criminal sentencing), the greater the explanatory power of the polit-

ical variable. The attitudinal theory is further supported by the unques-

tionable importance of politics in the appointment and confirmation of

federal judges;9 by the intensity of congressional battles, almost always

politically polarized, over the confirmation of federal judges and partic-

ularly Supreme Court Justices; and by the experiences of lawyers and

judges. Every lawyer knows that the accident of which judges of a court

of appeals are randomly drawn to constitute the panel that will hear his

case may determine the outcome if the case is controversial. Every judge

is aware of having liberal and conservative colleagues whose reactions topolitically charged cases can be predicted with a fair degree of accuracy

even if the judge who affixes these labels to his colleagues would not like

to be labeled politically himself.

Further evidence is the tendency of both Supreme Court Justices and

court of appeals judges to time their retirement in such a way as to maxi-

mize the likelihood that a successor will be appointed by a President of


litical? An Empirical Analysis of the Federal Judiciary (2006); Thomas J. Miles and Cass R.

Sunstein, Do Judges Make Regulatory Policy? An Empirical Investigation ofChevron, 73Uni-

versity of Chicago Law Review823 (2006); Ward Farnsworth, The Role of Law in Close Cases:

Some Evidence from the Federal Courts of Appeals, 86 Boston University Law Review 1083

(2006); Jeffrey A. Segal, Harold J. Spaeth, and Sara C. Benesh, The Supreme Court in the Ameri-

can Legal System 236242 (2005); Daniel R. Pinello, Gay Rights and American Law (2003);

Frank B. Cross, Decision Making in the U.S. Circuit Courts of Appeals, 91 California Law Re-

view1457, 15041509 (2003); David E. Klein,Making Law in the United States Court of Appeals

(2002); Emerson H. Tiller and Frank B. Cross, A Modest Proposal for Improving American

Justice, 99 Columbia Law Review 215, 218226 (1999); George, note 2 above; Richard L.

Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Virginia Law Review

1717 (1997); Sheldon Goldman, Voting Behavior on the United States Courts of Appeals Re-

visited, 69American Political Science Review491 (1975). For an interesting case study of how

the political preferences of court of appeals judges affect decisions, see Paul J. Wahlbeck, The

Development of a Legal Rule: The Federal Common Law of Public Nuisance, 32Law and Soci-

ety Review613 (1998).

8. C. K. Rowland and Robert A. Carp, Politics and Judgment in Federal District Courts

(1996); Gregory C. Sisk, Michael Heise, and Andrew P. Morriss, Charting the Influences on

the Judicial Mind: An Empirical Study of Judicial Reasoning, 73New York University Law Re-

view1377 (1998); Ahmed E. Taha, Judges Political Orientations and the Selection of Disputes

for Litigation (Wake Forest University School of Law, Jan. 2007), http://ssrn.com/abstract=

963468 (visited Sept. 2, 2007).9. On which see, for example, Lee Epstein and Jeffrey A. Segal,Advice and Consent: The Poli-

tics of Judicial Appointments(2005); John R. Lott, Jr., The Judicial Confirmation Process: The

Difficulty with Being Smart, 2Journal of Empirical Legal Studies407 (2005).


20/24

the same party as the one who appointed the retiring Justice.10

Still an-other bit of evidence is what might be called ideology driftthe ten-

dency of judges to depart from the political stance (liberal or conserva-

tive) of the party of the President who appointed them the longer they

serve.11 A judge closely aligned with the ideology of the party of the

President who appointed him may fall out of that alignment as new, un-

foreseen issues arise. A judge who was conservative when the burning

issues of the day were economic may turn out to be liberal when the

burning issues become ones of national security or social policy such as

abortion or homosexual rights.

There is more: the outcome of Supreme Court cases can be predicted

more accurately by means of a handful of variables, none of which in-

volves legal doctrine, than by a team of constitutional law experts.12

While there is a high correlation between how a given federal appellate

judge (court of appeals judge as well as Supreme Court Justice) votes for

the government in nonunanimous (hence close) constitutional crimi-

nal cases and in nonunanimous statutory criminal cases, there is a low

correlation between the votes of different judges for and against the gov-

ernment in criminal cases.13 Some judges have a progovernment lean-

24 The Basic Model

10. Ross M. Stolzenberg and James Lindgren, Politicized Departure from the United States

Supreme Court (University of Chicago and Northwestern University, Mar. 18, 2007); James F.

Spriggs and Paul J. Wahlbeck, Calling It Quits: Strategic Retirement on the Federal Courts of

Appeals, 18931991, 48Political Research Quarterly573 (1995); Deborah J. Barrow and Gary

Zuk, An Institutional Analysis of Turnover in the Lower Federal Courts, 19001987, 52 Jour-

nal of Politics 457, 467468 (1990). Another straw in the wind is the surprising finding in a

recent study that Supreme Court law clerks self-described political identity (Democratic or Re-

publican) influences the political valence of their Justices votes. Todd C. Peppers and Christo-

pher Zorn, Law Clerk Influence on Supreme Court Decision Making (Roanoke College, De-

partment of Public Affairs, and University of South Carolina, Department of Political Science,

June 14, 2007).

11. See Andrew D. Martin and Kevin M. Quinn, Assessing Preference Change on the US

Supreme Court, 23Journal of Law, Economics and Organization 365 (2007); Susan Haire, Be-

yond the Gold Watch: Evaluating the Decision Making of Senior Judges on the U.S. Courts of

Appeals (University of Georgia, Department of Political Science, 2006).

12. Andrew D. Martin et al., Competing Approaches to Predicting Supreme Court Deci-

sion Making, 2 Perspectives on Politics 761 (2004); Theodore W. Ruger et al., The Supreme

Court Forecasting Project: Legal and Political Science Approaches to Predicting Supreme Court

Decisionmaking, 104Columbia Law Review1150 (2004). The variables are (1) circuit of ori-

gin; (2) issue area of the case; (3) type of petitioner (e.g., the United States, an employer, etc.);

(4) type of respondent; (5) ideological direction (liberal or conservative) of the lower court rul-

ing; and (6) whether the petitioner argued that a law or practice is unconstitutional. Id. at1163.

13. Ward Farnsworth, Signatures of Ideology: The Case of the Supreme Courts Criminal

Docket, 104Michigan Law Review67 (2005); Farnsworth, note 7 above.


21/24

ing, others a prodefendant leaning, and these leanings appear to be whatdrives their votes in close cases whether the case arises under the Con-

stitution or under a statutethough from a legalist standpoint the text

of the enactment being applied ought to drive the outcome, and there

are huge textual differences between the Constitution and statutes. Apo-

litical judges would not be expected to vote the same way in both types

of case.

All this is not to say thatalljudicial votes are best explained as politi-

cally motivated,14 let alone that people become judges in order to nudge

policy closer to their political goals. We shall see in subsequent chapters

that to explain the political cast of judicial decisions does not require as-

suming that judges have conscious political goals. No attitudinal study

so finds, and data limitations cannot explain the shortfalls. Even at thelevel of the U.S. Supreme Court many cases do not involve significant

political stakes, but that cannot be the entire explanation either. Think

of Oliver Wendell Holmes. The publication of his correspondence after

his death revealed that he was a rock-ribbed Republican, yet he voted re-

peatedly to uphold liberal social legislation (such as the maximum-

hours law at issue in theLochnercase, in which he famously dissented)

that he considered socialist nonsense. He may of course have been an

exception among Supreme Court Justices in this as in so many other re-

spects. He may have few successors in point of political detachment in

todays more politicized legal culture.

We get a sense of the attitudinal models predictive limitations in Ta-

bles 5 and 6, in which judicial votes that lack any political valence arecoded as other, and the liberal, conservative, mixed, and other votes

are correlated with the party of the President who appointed the judge

who cast the vote. Notice that apart from the substantial percentage of

votes that were either mixed or other, a large percentage of conservative

votes were cast by putatively liberal judges (judges appointed by Demo-

cratic Presidents) and a large percentage of liberal votes were cast by pu-

tatively conservative judges. Notice, as in the earlier tables, the apparent

trend toward the increased politicization of court of appeals voting re-


14. See, for example, Cross, note 7 above; Cross, note 2 above, at 285311; Sunstein et al.,

note 7 above; Daniel R. Pinello, Linking Party to Judicial Ideology in American Courts: A

Meta-Analysis, 20Justice System Journal219 (1999); C. Neal Tate and Roger Handberg, Time

Binding and Theory Building in Personal Attribute Models of Supreme Court Voting Behavior,191688, 35American Journal of Political Science460 (1991); Sheldon Goldman, Voting Be-

havior on the United States Courts of Appeals Revisited, 69 American Political Science Review

491 (1975).


22/24

sulting from judicial appointments by Republican Presidents. But no-

tice, too, that the differences between the two types of judge, exhibited

in the first two rows of the tables, though significant, are only partial.

And a comparison just of means obscures the fact that the distributions

overlap; some judges appointed by Republican Presidents are less con-

servative than some appointed by Democratic Presidents. This does not

refute the attitudinal model, but it does highlight the fact that the party

of the appointing President is an imperfect proxy for a judges judicial

ideology. One reason is that ideological issues important to judges need

26 The Basic Model

Table 5 Judicial Votes in Courts of Appeals as Function of Party of AppointingPresident, 19252002 (in percent)

VoteRepublican

PresidentDemocratic

President

Conservative 42.2 37.6Liberal 28.1 33.3Mixed 5.9 5.1Other 23.9 23.9


(visited July 17, 2007);U.S. Court of Appeals Database,www.as.uky.edu/polisci/ulmerproject/





Table 6 Judicial Votes in Courts of Appeals as Function of Party of AppointingPresident, Judges Serving Currently (in percent)

VoteRepublican

PresidentDemocratic

President

Conservative 51.2 42.5Liberal 22.9 33.1Mixed 7.3 7.6Other 18.7 16.9


(visited July 17, 2007);U.S. Court of Appeals Database,www.as.uky.edu/polisci/ulmerproject/appctdata.htm, www.wmich.edu/nsf-coa/ (visited July 17, 2007). Votes were weighted to





23/24

not have salience in political campaigns; capital punishment is a currentexample. Another reason is that judges pride themselves on being politi-

cally independent rather than party animals.

An explanation for the attitudinal models predictive limitations that

would hold even if all decisions involved significant political stakes is

that a case may pose a conflict between two political values, both of

which are important to a judge, as when, for example, a civil rights suit

(liberal) is brought challenging affirmative action (a conservative bte

noire). One might think that in such a case the political considerations

would cancel and the decision could be attributed to conventional legal

reasoning. But no; the political considerations are unlikely to weigh

equally in the judges mind, and if they do not, the heavier may deter-

mine his decision. A notable example isBuchanan v. Warley.15

Decided ata time when the Supreme Court was strongly disinclined to invalidate

racially discriminatory laws, it nevertheless invalidated a southern ordi-

nance that forbade blacks to live on any block in which whites were in

the majority, and vice versa. The ordinance had blocked the plaintiff, a

white, from selling property to a black. The Court distinguished mere

social rightsthe right of blacks to associate with whites (and like-

wise of whitesnotto associate with blacks, a right that the whites who

remained in the neighborhood were denied), which the Court had re-

fused to recognize inPlessy v. Fergusonfrom those fundamental rights

in property that the Fourteenth Amendment was intended to secure to

blacks on equal terms with whites.16 The distinction is not found in the

equal protection clause. Michael Klarman argues persuasively that theCourt simply thought government interference with property rights a

worse affront to personal liberty than segregation of schools and other

public facilities, especially since the person complaining that his prop-

erty rights were being infringed was the white seller.17 The upshot was

that the Court issued a liberal decision, rejecting racial segregation in

private housing.

The attitudinalists traditional preoccupation with politically charged

cases decided by the Supreme Court creates an exaggerated impression

of the permeation of American judging by politics.18 Most cases decided


15. 245 U.S. 60 (1917).

16. Id. at 79.17. Michael J. Klarman,Unfinished Business: Racial Equality in American Law 8384 (2007).

18. Brian Leiter,Naturalizing Jurisprudence: Essays on American Legal Realism and Natural-

ism in Legal Philosophy187, 188 n. 22, 192 (2007).


24/24

by American courts are neither politically charged nor decided in theSupreme Court. And to use the political party of the appointing Presi-

dent as a proxy for a Justices political inclinations misleadingly implies

thatpartisanpolitics pervades Supreme Court decision making. A Presi-

dent invariably appoints most judges (usually more than 90 percent)

from among members of his own political party, but once appointed they

are more likely to want to be good judges than to want to toe anyones

political line. You do not find judges saying, even to themselves, How

would Bill Clinton [or George Bush, etc.], who appointed me, decide

this case? Nevertheless, in the frequent cases in which a political judg-

ment is required to close the deal because legalist analysis of the case

leads nowhere, the judge is likely to lean toward the position that the

political party to which he belongs (or belonged) would support, for it isusually not an accident that he belongs to that party rather than another.

But lean toward is different from identify with. Supreme Court Jus-

tices are political, but politically independent. Most of them, indeed, are

outside (either more liberal or more conservative) the range bounded by

the political preferences of the President and the Senate that confirmed

them.19

Anyamount of political judging challenges orthodox conceptions of

the judicial process, however, and the attitudinalists have shown that

there is plenty at all levels of the American judiciary (though more, the

higher the level). Yet their findings, while heresy to the legal establish-

ment, have the paradoxical effect of blunting criticisms of the courts as

acting undemocratically when they invalidate legislative and executiveacts. As explained by Mark Graber,

Judicial review is established and maintained by elected officials. Adju-dication is one of many means politicians and political movements em-ploy when seeking to make their constitutional visions the law ofthe land. Elected officials provide vital political foundations for judi-cial power by creating constitutional courts, vesting those courts withjurisdiction over constitutional questions, staffing those courts withjudges prone to exercising judicial power, assisting or initiating litiga-tion aimed at having those courts declare laws unconstitutional, andpassing legislation that encourages justices to make public policy inthe guise of statutory or constitutional interpretation. Judicial review

28 The Basic Model

19. Michael Bailey and Kelly H. Chang, Comparing Presidents, Senators, and Justices:

Interinstitutional Preference Estimation, 17Journal of Law, Economics and Organization 477,

508 (2001).

how judges think

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