The Mystery Behind the Robe

-By Gilien Silsby

From gun control and same-sex marriage to affirmative action and voting rights, federal courts are gearing up this year to hear cases that will have dramatic repercussions for the nation.

U.S. Supreme Court

Yet, as judges step into major policy debates, one question will likely go unanswered - how do judges make decisions in such important cases?

A new book by Lee Epstein, USC Provost Professor of Law and Political Science, attempts to unfurl the mystery behind the often-secretive behavior of judges.

“The Behavior of Federal Judges,” which Epstein co-authored with Judge Richard Posner and William Landes of University of Chicago, dispels the mystery of how judicial decisions are made in district courts, circuit courts and the U.S. Supreme Court.

The authors offer more than theories, providing extensive statistical data from all levels of the federal judiciary to test their hypotheses. The work presents and analyzes reams of data, offering a comprehensive empirical analysis of how decisions from district courts to the Supreme Court are made.

“The courts are enmeshed in major policy debates,” said Epstein, the Rader Family Trustee Chair in Law at USC. “We try to understand what they are doing and what motivates them.”

The authors – a political scientist, an economist and a judge - derive their hypotheses from a labor-market model. They consider judges as they would any other laborer: as self-interested individuals motivated by both the economic and non-economic aspects of their work.

“We try to offer a realistic approach that doesn’t treat judges simply as neutral and legalistic decision-makers but also doesn’t treat them as politicians in robes,” Epstein said. “We are looking at what drives them.”

Although legalistic and ideological factors affect judges’ decisions, other dynamics come into play. Judges are both motivated and hampered by a variety of workplace issues, including the chance of promotion, leisure time, workload and even celebrity.

“Judges are human,” note the authors. “They care about workload and clearing cases. They care about their reputation and how they may be perceived. Like all of us, they are also constrained by professional norms. They participate in the labor market and deal with challenges on a daily basis.”

The authors use a strict positive analysis that doesn’t ask how judges should decide cases, but how they decide them and how they do their judicial work.

“Judges are not automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior,” according to the authors.

The authors focus on the relative weight of ideology and legalistic analysis in decision-making by judges, and measure the more mundane influences on judicial behavior such as “effort aversion” – the reluctance to work too hard and battle with colleagues.

“Both are aspects of the ‘quiet life’ that is especially valued by persons in jobs that offer little upward mobility” and few opportunities for increasing their income other than quitting, according to the authors, adding that judges who wish to earn more income often go into private practice.

Prof. Lee Epstein

At the appellate level, Epstein and her colleagues look at social and collegial phenomena that may influence judicial votes, such as group and political polarization as well as the desire to “go along” with the group.

“District courts hear a large number of cases that can be decided by using legalistic concepts,” the authors write. “They can also dismiss weak cases. So, ideology is used to a lesser extent in district-court decision-making than in higher federal courts. We attribute this to the greater influence of legalistic considerations in lower courts.”

Epstein, Landes and Posner find that justices on the Supreme Court do not conform to majority decisions and are not pressured by the group to cast votes in a certain way. Lifetime appointments, absence of ambition for higher office and lack of group or political polarization may explain why these judges are freer to vote from an ideological standpoint.

 ”We find no conformity effect, common in many workplaces, where a worker who bucks the office consensus may find himself ostracized,” said Epstein.

Conversely, the federal district court judges – who are looking to be promoted to courts of appeals or the Supreme Court - may feel more pressure to cast votes in a certain way in order to achieve an appointment to higher office.

The authors find that court of appeals judges, who are in the promotion pool,   tend to alter their behavior in order to improve their prospects for appointment to the Supreme Court. Analysis of district court judges in line for promotions show similar but weaker results. All in all, auditioning behavior by judges is important evidence of the role of self-interest in judicial decisions.

The authors believe that a realistic understanding of how judges make decisions may improve legal education and lead judicial reform and realistic expectations for judicial education. “The better judges are understood, the more effective lawyers will be in litigating cases… and predicting the outcome of cases, enabling litigation to be avoided or cases settled in the early stages,” they write.