Judicial Ideology Research Articles

Exploring the influence of wealth on judicial decision making

AbstractObjectiveAttention to levels of socioeconomic inequality has given rise to work investigating its potential to influence political actors and, thus, policy outcomes. These studies have focused on elected actors in legislative contexts. Ours fills this gap by assessing the consequences of a judge's wealth on decision making.MethodsWe obtain data on federal appellate judges’ wealth and explore its influence in cases involving economic issues. We estimate logit models controlling for other factors and include fixed effects for circuit, specific issue area, and year of the decision. The models consider both the main effects of wealth and its potential interaction with judicial ideology to influence decision making.ResultsWe find no direct relationship between a judge's wealth and her decision making in economic cases. However, wealth interacts with ideology to exert a significant influence on decision making; here, greater wealth amplifies the ideological predilections of more conservative judges.ConclusionsThis is the first study to document a link between wealth and the choices judges make on the bench. It adds a new dimension to the ways economic inequality can influence political actors and raises new questions about the mechanisms by which such inequality is consequential for elite political behavior.

The Role of Judge Ideology in Strategic Retirements in U.S. Federal Courts

The widely recognized phenomenon of federal judges retiring strategically has key implications for the composition of the judiciary, particularly given polarization between the two U.S. political parties. Using fine-grained measures of judicial ideology, we examine how ideology shapes such strategic retirements. First, we show that since Reagan’s election, Democratic appointees to lower federal courts have been more likely to retire strategically than Republican ones. Second, we find that more ideologically conservative Republican appointees are more likely to strategically retire than are moderate Republican appointees but only suggestive evidence of a similar pattern among more liberal Democratic appointees. Third, as explanation, we find that moderate Republican appointees appear to “wait out” retiring strategically under more conservative recent presidents, such as Donald Trump, opting instead to retire under Democrats such as Joe Biden. Taken together, our results offer a key insight: ideology, and not just party, can be an important factor in driving strategic retirement.

The Role of Judges in Selecting Efficient Norms in a Common Law System: A Law and Economics Perspective

Abstract This study delves into the common law efficiency theory, proposing that the efficiency of legal norms in common law systems predominantly depends on judges’ biases towards efficiency. By developing an economic model, it is demonstrated that the proportion of efficient norms correlates with the predisposition of judges towards efficiency, influenced by their personal beliefs. Historical analysis of common and civil law systems reveals that neither inherently guarantees efficiency; rather, their efficiency is contingent upon their adaptability to societal needs and prevailing judicial ideologies. The paper concludes that the efficiency of a legal system relies on its congruence with societal values and judicial ideologies, emphasizing that shifts in the judiciary’s ideological makeup have implications on legal system efficiency. This research contributes to a deeper understanding of the multifaceted process shaping legal norms in common law, highlighting the critical role of judges, societal values, and legislative dynamics.

Do Companies Care about Judicial Ideology? Evidence from Air Pollution

Do Companies Care about Judicial Ideology? Evidence from Air Pollution

An Expert-Sourced Measure of Judicial Ideology

An Expert-Sourced Measure of Judicial Ideology

The role of theory in empirical legal studies

The growing field of empirical legal studies is not an alternative to theory: within every empirical inquiry is an implicit formal theoretical model. Further, good empirical tests should be inspired by substantive theories of the phenomena being analysed. This article explains how theory is built into all empirical testing and illustrates why empirical tests are best informed by well-developed theories. It uses examples of empirical studies of both US Supreme Court and Australian High Court oral arguments to illustrate how these issues apply to the central issues at the intersection of empirical legal studies and constitutional law: the role of judicial ideology and strategy, and predicting judicial behaviour. The article explores common errors in both conducting and consuming empirical work, and presents some solutions, including both methodological fixes and how to draw on substantive expertise. It aims to help the non-technical reader understand when counterintuitive results should be queried and when, in contrast, resistance is more reflective of priors of the reader rather than potential weaknesses of the work. And it acts as a reminder to technical readers and empirical practitioners that theory is built into every empirical test, and so must be taken seriously.

Comparative Exceptionalism? Strategy and Ideology in the High Court of Australia

Abstract This Article provides a rare comprehensive empirical assessment of oral argument outside of the United States. Drawing on a novel dataset over twenty-six years (1995–2019), comprising nearly one million speech episodes at oral argument in Australia’s apex court, the High Court of Australia, we are able to compare patterns of judicial behavior found in the U.S. Supreme Court to a comparable Western liberal democracy with a long tradition of judicial independence. There are a number of highly significant institutional differences between the Australian context and the U.S. Supreme Court, including a Chief Justice with additional power at oral argument, unlimited time for the length of argument, and variable panel sizes. Nevertheless, the Article finds evidence of similar patterns between Australian High Court and U.S. Supreme Court Justices. Importantly, this includes engaging in judicial advocacy on behalf of the side of the case that they ultimately support, contradicting the jurisprudential orthodoxy that the Australian judiciary is apolitical. In addition, numerous other factors that have been shown to be highly influential in the American context are also shown to be powerful in the Australian context, most notably judicial ideology, gender, and experience. This suggests that while striking institutional differences can impact oral argument and make arguments look very different, we can nonetheless discern similar underlying patterns of judicial behavior that can be recognized as strategic advocacy. All this suggests that neither system is “exceptional”—judicial advocacy may simply be part and parcel of having a strong independent judiciary.

Race, electoral pressure, expected judicial ideology, and the vote to confirm Justice Clarence Thomas

ABSTRACT The paper “Courting Constituents? An Analysis of the Senate Confirmation Vote on Justice Clarence Thomas” tests the theory that electoral pressure from Black constituents played a role in the confirmation of Justice Clarence Thomas to the United States Supreme Court (Overby, L. Marvin, Beth M. Henschen, Michael H. Walsh, and Julie Strauss. 1992. “Courting Constituents? An Analysis of the Senate Confirmation Vote on Justice Clarence Thomas.” American Political Science Review 86 (4): 997–1003. https://do.org/10.2307/1964351). This paper reveals several methodological errors in the original paper and also provides a friendly critique of several of the underlying assumptions put forth in the 1992 paper. This paper then offers an alternative explanation that the expected judicial ideology of Clarence Thomas nomination was relatively more important than electoral pressure from Black voters.

Consensus and Ideology in Courts: An Application to the Judicial Committee of the Privy Council

Abstract This article supports the view that, while judges suppress dissent when dissenting is too costly, the cost of dissenting depends on the political dimension of the issue broached. It contends that judges who disagree may nevertheless try to safeguard integrity and legitimacy in political disputes by presenting a public impression of unity. We muster evidence from the United Kingdom, specifically, votes from the Judicial Committee of the Privy Council (JCPC) between 1998 and 2011. We demonstrate through statistical analysis that judges are likelier to suppress dissent in devolution cases, which are characterized to be more political in character, than in Commonwealth appeals, which are more mundane in nature. We find that, while consensus on domestic issues reflects the absence of disagreement across judicial ideologies, judges have stronger conflicting positions on issues concerning devolution, but tend to suppress their propensity to dissent. This finding confirms that the JCPC wants to appear cohesive to give an image of greater authority on decisions of predominantly political content.

When Advocates Become Adjudicators: Tracing the Effects of Prosecutorial and Public Defense Experience on Judicial Decision Making

We assess the influence professional background – specifically, having been a prosecutor or a public defender – exerts on decision making by federal district court judges. Focusing on search and seizure cases, we analyze nearly 1500 motions to suppress evidence from 2000 to 2022. In addition to controlling for judicial ideology and a judge’s prior experience as a prosecutor or public defender, we utilize matching to address endogeneity concerns related to one’s ability to self-select into one of these positions—which may itself be influenced by that individual’s ideological predispositions. We find that having been a former prosecutor, as well as the length of time that service spans, makes a judge significantly more likely to rule against a motion to suppress. Former public defenders are significantly more likely to grant that suppression motion, though their propensity to do so is not affected by the length of time served in that capacity.

Chief Justice Selection Rules and Judicial Ideology

AbstractWe examine how institutional selection procedures affect the ideology of state supreme court chief justices. We argue that institutional selection methods empower those charged with choosing chief justices to select court leaders who reflect their own preferences, and we test this theory using data from all 50 American states from 1970 to 2017. Our results show that states that use popular elections to select chief justices tend to produce court leaders whose preferences reflect the electorate, and states that use commission-assisted elite appointment tend to produce chief justices whose preferences mirror those of political elites. While we find that peer election systems produce leaders with preferences similar to median court preferences, court preferences are also associated with other methods of chief justice selection.

Asymmetric review of qualified immunity appeals

AbstractThis article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the US Supreme Court. By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice, this study reveals how the US Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity. The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. They show that qualified immunity, when deployed, often bars relief for plaintiffs. Moreover, they show that courts of appeals reverse decisions to deny qualified immunity far more often than they reverse decisions to grant qualified immunity, and that this asymmetric review is correlated with traditional indicators of judicial ideology, among other variables. Significantly, the data also suggest that the asymmetric review that characterizes appellate decisions is also present in the Supreme Court's certiorari practice.

Unfolding Judicial Ideology: A Data-Generating Priors Approach with an Application to the Brazilian Supreme Court

Abstract Spatial models, in the form of latent response theories (ideal point estimation), have been widely used to study the voting behavior of judges in collegial courts. In some specific institutional contexts, building coherent testable hypotheses with conventional methodology is challenging. We set up a non-parametric method to identify the number and nature of the latent ideological traits allegedly orienting judicial voting behavior in the absence of prior information regarding the nature of their preferences. We draw information from explorative cluster analysis conducted on votes cast by judges in the decisions of the court to construct priors in the context of Item Response Theory. We concentrate on the Brazilian Supreme Court in the period 2009–2018. We primarily find that votes express a split which groups judges into two distinct clusters. On one side, we find judges appointed further back in time and with longer tenure on the bench; on the other side, we observe judges more recently appointed and with shorter experience. Judges are likely to respond to the presidential appointer and to elements related to their origin, university education, and career background (aside from the guidance of their own experience). Our study provides an original empirical approach that is not limited to the Brazilian Supreme Court, but is suitable to investigate judicial voting behavior when the nature of potential ideological drivers is debatable, controversial, or unknown.

A Fiscal Constitutional Crisis: Tax Avoidance and Evasion in Inter-war Britain

Abstract Inter-war Britain witnessed rising tax avoidance and evasion, reflecting a combination of elite opposition to higher tax rates and the almost complete absence of any effective legal or reputational sanctions against tax evaders. Legal tax avoidance carried little social stigma and even illegal evasion rarely led to criminal prosecution or public censure, on account of the confidential, non-judicial procedure by which cases were resolved. This paper explores how a combination of elite opposition to higher tax rates, a growing judicial ideology (especially in the higher courts) based around protecting ‘civil liberties’ (essentially construed in terms of private property rights), and an ambiguous stance on tax avoidance among policy-makers, created the conditions for the rapid growth of tax avoidance. This in turn fostered a booming tax avoidance industry that became a persistent feature of the British tax environment. The paper also explores the wider political economy of tax avoidance and evasion and how a political philosophy shared by leading judges, right-wing ‘anti-waste’ movements, some Conservative politicians, and many wealthy taxpayers, formed a precursor of neo-liberal political philosophy. Finally, it charts the changed tax climate of the late 1930s, when the growing threat of total war aligned the interests of the wealthy with those of the rest of society and allowed policy-makers to present tax payment as a patriotic duty. In this context, collective liberty and an ideology of ‘fair shares’ eclipsed the rhetoric of the rights of the propertied individual, thereby undermining the legitimacy of tax avoidance.

Judicial Ideology in the Absence of Rights

AbstractResearch on judicial behavior has yet to systematically examine the extent to which ideology affects voting behavior outside of rights-based issues. This study explores the predictive effect of judicial ideology on judicial votes in a country without a bill of rights: Australia. We develop an ex ante measure of judicial ideology and use original data on every Australian High Court decision between 1995 and 2019 to test whether, and in which types of cases, votes of Australia’s justices align with their ideology. The results show that ex ante ideology is predictive of voting behavior, regardless of policy area.

The efficacy of measuring judicial ideal points: The mis-analogy of IRTs

IRT models are among the most commonly used latent trait models in all of political science, particularly in the estimation of ideal points of political actors in institutions. While widely used, IRT models are often misapplied, and a key element of their estimation, the item parameters, are almost always ignored and discarded. In this paper, we look into the application of IRT models to the estimation of judicial ideology scores by Martin and Quinn (2002). Building off of a replication and extension of Martin and Quinn (2002), we demonstrate that the often-ignored item parameters are, in fact, inconsistent with the assumptions of IRTs. Then, using a post-estimation fix that is designed to ameliorate the problem, we run the model again, generating new scores. We then compare our new ideal points to the existing ideal points and discuss the implications for both ideal point modeling generally and in judicial politics specifically. We conclude by replicating a prominent study in judicial politics that demonstrates how inconsistencies in the estimation of IRT models can be consequential and bring up concerns with the implications for what this could mean for the usefulness of scores estimated via IRT models.

Ideología y prejuicio en el discurso judicial: estudio de caso desde una crítica lingüística del derecho

Este artículo tiene como objetivo proponer una renovación de la crítica del derecho a partir de los Estudios críticos del discurso del lingüista holandés Teun A. van Dijk. El encuentro de estas dos perspectivas críticas puede permitir la apertura de un nuevo espacio teórico-metodológico, que llamamos “crítica lingüística del derecho”. Para ello, se revisan la crítica del derecho y las relaciones entre derecho y lenguaje, presentando también las características generales de los estudios críticos del discurso. Se parte del siguiente problema general (en este artículo evidenciado en un estudio de caso): ¿cómo evitar la propagación de ideologías judiciales que perpetúan relaciones de dominación social? Se plantea la hipótesis de que los estudios críticos del discurso pueden ayudar a la crítica del derecho contemporánea en el estudio y denuncia de casos en los que prevalece la dimensión ideológica ante la racionalidad judicial. En cuanto a la metodología, se realiza un estudio exploratorio interdisciplinario, combinando aspectos epistemológico-jurídicos, metodológico-lingüísticos y empírico-sociales, a partir de una revisión bibliográfica y un estudio de caso.

“Justice X, dissenting”: A Citation-Network Approach to Mapping Judicial Ideology

Appellate judges prefer some outcomes over others. We can tell because we see them disagree with one another regularly, both within a given a case and across a run of cases. Scholars, both in political science and law, have used various techniques to quantify judges’ policy preferences and chart those preferences, both across judge and through time. The Martin-Quinn score is a prominent example. But appellate judges don’t simply vote. They also write, justifying their judgments. When writing for a majority, the authoring judge must accommodate her partners in the majority, dropping or adding text (including citations) to keep the majority together. When writing a dissent or concurrence, by contrast, the judge can write simply to explain, without accommodation, how she views the issues in the case. Indeed, given that dissenting or concurring triggers varied costs, the chance to justify one’s analysis without compromise is perhaps the main benefit to writing a dissent or concurrence at all. Can we map an appellate judge’s ideological preferences in a way that harnesses the information these separate opinions provide? Citation network analysis is a promising way to do so. In this project, I gather the citation data (to earlier Supreme Court opinions) from all of Justice Scalia’s and Justice Thomas’s dissenting and concurring opinions on the Supreme Court, through the end of the October 2019 Term in July 2020, and then measure and map the resulting citation and co-citation networks, across all opinions and parsing concurrences from dissents. Justices Scalia and Thomas are an especially apt pair of justices to study in this way for three reasons: (a) as of 2020 they served for a similar period of years; (b) they have both dissented and concurred at similarly high rates, generating rich citation networks; and (c) they were each one another’s closest ideological fellow-traveler using scores like M-Q , making any differences between them revealed by citation-network analysis that much more informative. In summary: Justice Scalia sought mainly to reshape judicial power. Justice Thomas, by contrast, has sought mainly to reshape legislative power, including by enhancing state legislative power.

Learning to Speak Up: Acclimation Effects and Supreme Court Oral Argument

A long line of literature examines acclimation effects for newly confirmed U.S. Supreme Court justices. However, most of these analyses focus only on how new justices vote or write opinions. Here, we examine how they act during the one public aspect of the Court’s decision-making process—its oral arguments on the merits. In so doing, we seek to determine whether new justices speak, and interrupt their colleagues, less often than do their more senior colleagues. Using data on justices’ speaking turns and interruptions during all orally argued cases from the 1955 to 2018 terms, we find an acclimation effect exists whereby new justices are significantly less inclined to speak and interrupt their more senior colleagues. Our models also suggest gender and judicial ideology influence the extent to which new justices exhibit such effects during oral argument proceedings.

Estimating Judicial Ideology

We review the substantial literature on estimating judicial ideology, from the US Supreme Court to the lowest state court. As a way to showcase the strengths and drawbacks of various measures, we further analyze trends in judicial polarization within the US federal courts. Our analysis shows substantial gaps in the ideology of judges appointed by Republican Presidents versus those appointed by Democrats. Similar to trends in Congressional polarization, the increasing gap is mostly driven by a rightward movement by judges appointed by Republicans. We conclude by noting important avenues for future research in the study of the ideology of judges.