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Frank B. Cross is Professor at the University of Texas Law School and Herbert D. Kelleher Centennial Professor of Business Law at the University of Texas McCombs School of Business.

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Decision Making in the U.S. Courts of Appeals

STANFORD UNIVERSITY PRESS

Contents

Prologue..............................................................................11. Political Ideology and Circuit Court Decision Making...............................112. The Law and Circuit Court Decision Making..........................................393. Judicial Background and Circuit Court Decision Making..............................694. Other Institutions and Circuit Court Decision Making...............................945. Litigants and Circuit Court Decision Making........................................1236. Panel Effects and Circuit Court Decision Making....................................1487. Procedural Threshold Effects and Circuit Court Decision Making.....................1788. Circuit Court Decision Making and Precedential Impact..............................201Epilogue..............................................................................228Notes.................................................................................233Index.................................................................................245

Chapter One

This book begins by examining the role of judicial politics in decision making in the circuit courts. Beginning with ideology might seem surprising, because judges are expected to follow the law and eschew politics when making decisions. Philosophers have debated for millennia, however, whether adjudicators such as judges resolve disputes through neutral legal principles or exercise their own political will. A major movement among legal academics, commonly called legal realism, subscribes to the political nature of judicial decision making. Social scientists who have empirically studied judicial decision making have focused on judicial political ideology, which is sometimes called the attitudinal model of judicial decision making. Indeed, in "some corners of the university ... it is widely considered a settled social scientific fact that law has almost no influence on the justices." Political scientists have even ridiculed the conventional theory that judges decide according to law as "meaningless, ... acerebral," irrational, or "no more a science than creative writing, necromancy, or finger painting." Consequently, the analysis of judicial politics provides the starting point for the book's examination of circuit court decisions.

Judges are commissioned to resolve disputes between litigating parties. If there were no law, judicial decisions would presumably be ideological. Without law, the judge would examine the facts of the dispute and reach the result that he or she deemed to be the most equitable. The judge's sense of equity or fairness of outcome would inevitably be contingent on his or her ideological inclinations. Suppose that a case involved a contract between a large corporation and an individual consumer. Judges who ideologically favored a free market and associated bargaining would probably enforce the contract according to its precise terms. Judges who were ideologically inclined to favor the underdog might not enforce terms that seemed terribly unfair. The outcome of a case would depend on which judge heard the dispute. In the contemporary United States, however, judges do not decide in the absence of law. There are statutes, precedents, and other legal materials that apply to such contract disputes. The consideration of ideological judicial decision making therefore must consider the role of these laws.

Judicial politics or ideology is commonly juxtaposed with decision making according to law. As such, it is typically decried. Classic decision making according to law, discussed in detail in the next chapter, presumes that judges will use the recognized appropriate materials of the law to reach a decision. Ideological decision making occurs when judges do not adhere to legal materials but act as if there were no governing law and impose their own ideological preferences in making their decisions. Judges are supposed to adhere to the law and should not simply impose their ideologies on the outcome of cases. One cannot blithely rely on the assumption that people will do what they are supposed to do, however. Personal objectives and incentives should be considered. Judges are free from most of the incentives that may influence other jobs. Federal judges cannot get salary increases by working harder or better. Life tenure and other guarantees of judicial independence mean that judges face little risk of losing their jobs or suffering any other adverse consequences of their decision making. Given these circumstances, one could reasonably expect that such judges might choose to use their positions to do justice as filtered through their ideological beliefs.

This chapter considers the meaning of ideological decision making and the previous research on the issue. I conduct new statistical analyses to determine the significance of ideology for the votes of individual circuit court judges, both overall and in particular case areas. I then consider the role of ideology on overall decisions, rather than individual judge votes, and the relative significance of ideological extremes in judicial decisions.

The Meaning of Ideological Judicial Decision Making

Critics commonly ascribe judicial decisions to judicial ideology, a notion often called lawlessness. Before one can capture the ideological role in judicial decision making, the concept of judicial ideology must be defined. Judicial ideology generally does not mean partisan politics. An ideological judicial activist does not have his political party's interests at heart, according to the attitudinal model. Instead, the judge has a personal ideology, on a two-dimensional liberal to conservative scale, that drives his or her rulings. Such judges are presumed not to be involved in political bargaining or lobbying within the court or with members of the other branches of government, but are sincerely voting their personal preferences, conservative or liberal. Thus, the term ideology is generally preferable to the term political when describing judicial preferences.

Even after ideology is defined, the researcher needs a way to identify and separate ideological decision making from other determinants of judicial outcomes, such as the law itself. The identification of ideologically motivated action is an elusive one, however. Politicians and commentators commonly complain of "activist" or "political" judicial decisions, but these complaints often mean only that the politician or commentator disagrees with the judicial outcome. Such objections may speak only to the ideology of the complainer, not that of the judge. This became quite obvious in the Bush v. Gore litigation, during which conservatives claimed that the Florida Supreme Court was activist and ideological, while liberals claimed that it was the U.S. Supreme Court that was activist and ideological.

It is relatively easy to find particular decisions that can be plausibly ascribed to a judge's ideology. It is also relatively easy, however, to find particular decisions that seem contrary to that judge's ideology. Relying on anecdotal examples is not useful, and the tendency to analyze individual decisions as ideological or not cannot resolve the issue. Indeed, it is virtually impossible to definitively ascribe any particular judicial decision to ideology rather than law. No lawyer appears before a judge and argues: "You're a liberal and I'm on the liberal side in this case, so I should win." Instead, the lawyers for both sides cite legal materials, such as precedents, and claim that those materials call for a decision favoring their respective clients. When a judge makes a decision, he or she justifies it by referring to preexisting legal materials, not to his or her ideology. Although critics frequently claim that a particular decision was political, they cannot prove that fact; they only assert it. The critic claims that the judge engaged in a biased assessment of the law, but this claim depends on the dubious presumption that the critic can better apply the law to the case than did the judge. Moreover, even if the judge did get the law wrong, he or she might have done so out of error rather than ideology.

Those who believe judicial opinions are ideological often invoke the fact that both sides in a dispute can cite supporting legal material. If both sides have legal arguments, perhaps we are restored to a world without any governing law, where judges are free to exercise their political preferences. This criticism is too facile, though, because not all legal arguments are equally valid. Both sides have legal arguments, but one side's arguments may be better, more logical, or more applicable to the facts of the instant case. Whether the judge is deciding according to the better legal arguments or to his or her ideology is the question.

Quantitative empirical research is suited to help answer this question. The evaluation of any individual case is subjective and cannot distinguish ideology from error. A broad examination of many cases can reveal a systematic pattern of decisions, and statistical analyses add rigor to claims of ideological bias. If a given judge consistently reaches liberal outcomes in his or her decisions, that is a sign that the judge's decisions are ideologically influenced. It is possible, of course, that the law dictated liberal decisions in those cases. But if a different judge consistently reaches conservative outcomes in the same or similar cases, that creates a strong inference of ideological influence for one or both judges. The distribution of outcomes might be a matter of random chance; statistical methods are designed to evaluate this possibility. As a matter of logic, the different outcomes can at best show that one of the two sides, conservative or liberal, is deciding ideologically. One side might be following the law. Absent any reason to think that either conservatives or liberals are more honest than the other side, though, the most likely inference is that both are ideologically influenced in their decisions.

Ideological decision making need not mean that judges are consciously privileging their ideology over the governing law, and empirical evidence cannot demonstrate the truth of any such claim. The leading proponents of the attitudinal model are expressly agnostic about whether the ideological bias is a conscious one. Judges may effect their ideological preferences through what psychologists call "motivated reasoning"-a subconscious process by which people attempt to construct a rational justification for a preset desired conclusion. Those engaged in motivated reasoning may use cognitive shortcuts in processing information, an approach that can skew conclusions. Judge Frank Coffin from the first circuit court of appeals referred to this as a "hidden tilt" for one side of the litigation. Although the consciousness of the judicial bias has not been determined, the existence or nonexistence of such consciousness may be important. If we were to try to combat ideological judicial decision making, choosing the best strategy might depend on whether the bias was conscious or subconscious.

Judges on Ideological Judicial Decision Making

Judges generally do not ascribe their decisions to their ideological preferences, either formally or informally, but they do recognize something akin to an ideological role in their decision making. Although judges are loathe to confess to ideological or political decision making, they have often conceded that the content of the law may not determine decisions and that they may be influenced by factors that are something like ideology. Supreme Court justice Stephen Breyer claims that "politics" do not drive judicial decisions but acknowledges that "personal ideology or philosophy is a different matter." In J. Woodford Howard's survey of judges from three circuit courts, a majority of the responding judges reported that their personal views of justice in the case were "very important" to their decisions. Given anonymity and the right questions, judges were ready to admit to extralegal factors in decision making.

Rarely do judges publicly confess to or openly use ideology as a basis for their decisions. Occasionally, a judge will charge other judges with ideological decision making. A recent dissent by Judge Alex Kozinski of the ninth circuit court of appeals more widely conceded that judges "know very well how to read the Constitution broadly when they are sympathetic to the right being asserted," but "when we're none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there." Although such open candor is relatively rare, it still hints at the sub rosa role for ideology. Even Kozinski, however, rejects the extreme realist position that all law is merely political, and has referred to this theory as "horse manure."

In some respects, the debate over ideological decision making is a semantic one. Judges do not like to be called ideological or activist, and they shun those labels. Reflective judges, though, realize that their decisions are influenced by some extralegal factors and that their personal background and sense of justice are among those factors. In this book I refer to such decisions as ideological, as a convenient shorthand, but I could as easily have used a different term, such as just. It seems fair to call the factor ideological, though, because empirical evidence has shown that federal judges' decisions can be correlated with the ideologies of their appointing presidents. Judicial testimony seems to admit to some level of conscious judicial ideological bias, although there may be a subconscious effect as well. Empirical methods can help measure the magnitude of this effect.

Empirical Research on Ideological Judicial Decision Making

An enormous amount of quantitative empirical research has been conducted on the effect of ideology on judicial decision making. Most of this existing empirical research has been conducted by political scientists and involves the Supreme Court. The Supreme Court provides a ready proving ground for assessing judicial ideology because it includes nine different justices with different ideologies deciding exactly the same dispute. The existing research seems conclusive in establishing that the justices of the Supreme Court are ideologically influenced. Professors Jeffrey Segal and Harold Spaeth have conducted extensive research, using a database of all Supreme Court decisions since 1962. They found that certain liberal justices (such as former justice William Brennan) consistently reach liberal decisions, while other justices (such as Justice Antonin Scalia) consistently reach conservative decisions. Numerous other studies have generally confirmed the Segal and Spaeth results. The evidence is sufficiently strong that researchers have sometimes suggested that only ideology influences the votes of Supreme Court justices and that the law plays no role whatsoever. Other research has demonstrated an ideological effect on numerous underlying actions of the Supreme Court, such as the assignment of opinion-writing duties, the formation of coalitions, and decisions on whether to grant certiorari to an appeal.

Some have taken this research and extended it to all judicial decisions, but the research on the Supreme Court cannot necessarily be extrapolated to circuit decision making. The Supreme Court carefully selects the cases it will hear and typically chooses the most controversial and difficult cases. These cases are relatively few (currently fewer than one hundred per year) and not representative of the much larger number of cases heard by other courts. It is plausible to suggest that the Supreme Court chooses to decide those cases, sometimes called "close cases," in which the law is relatively evenly balanced on each side of a dispute. If so, these cases reflect a world without governing law, where some ideological influence is inevitable. The circuit courts, by contrast, hear many more cases and cannot pick and choose the cases they decide. The circuit courts must address every case brought to them by the litigants. This much broader set of cases is unlikely to be so evenly balanced on the law, so circuit court judges may not be forced to consider ideology, as Supreme Court justices are.

There is also a considerable body of empirical research on decision making in circuit courts. A study of environmental law decisions on the D.C. circuit court of appeals found a profound effect of ideology on decision making. A study of circuit court reviews of administrative agency decisions found some significant ideological effect on decisions. Another study of circuit court decisions across the board likewise found a statistically significant association between presumed judicial ideology and decision making. Various other studies have confirmed this association, though the results of the research are not entirely consistent and reveal considerable variation in the power of the judicial ideology effect on decisions.

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Excerpted from Decision Making in the U.S. Courts of Appealsby FRANK B. CROSS Copyright © 2007 by Board of Trustees of the Leland Stanford Junior University. Excerpted by permission.
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