Judicial Behavior Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Judicial behavior is a field of inquiry in political science that seeks to understand and explain actions taken by judges and courts. At the foundation of this scholarly endeavor are systematic efforts to build generalizable theories, empirically tested, that illuminate and clarify the primary factors that drive judicial decision making. As political scientist James Gibson declared trenchantly concerning this subject, “judges’ decisions are a function of what they prefer to do, tempered by what they think they ought to do, but constrained by what they perceive is feasible to do” (1983, 9). In this one sentence, Gibson penetratingly distills down the essence of political science insight into the actual world in which judges reside. That is to say, many forces sway, motivate, and direct judges in the fulfillment of their duties that are beyond the narrow confines of the law. This constitutes the central debate among political scientists and legal scholars on judicial behavior: which set of influences—political, legal, personal, or some combination thereof—best explain the actions of judges and why.

Legal Versus Political Science Models

One can fruitfully break this debate down into two major camps or schools of thought. The first camp, composed mostly of lawyers and law professors, espouses the classic and traditional view taught in law schools, focusing on the role of the law and legal principles in determining the choices judges make. The second camp, more recent in its origin compared to the legal approach and populated by political scientists, instead prefers to focus on the role of politics. Scholars commonly refer to the first camp’s orientation as the legal model, and the second camp, with its emphasis on political consideration, is further divided into the attitudinal model and the strategic model.

Legal Model

The legal model contends that judicial decisions result from judges’ attempts to apply legal principles and engage in varying modes of constitutional interpretation and techniques of statutory interpretation. At the heart of the legal model is the concept of stare decisis (Latin for “let the decision stand”), according to which judges draw on the principles and rules laid out in earlier cases and use them to guide their decision in similar cases (a practice drawn from English common law). In addition to precedent, according to the legal model, the other prominent law-based considerations judges entertain consist of the intention of the Framers or legislators and the plain meaning of the words or text in the relevant constitutional provision or statute. Legal model adherents argue that judges are process-oriented as opposed to being result-oriented. That is to say, judges render decisions based on the appropriate legal consideration and wherever the law (precedent, text, intention of the Framers or legislature) takes them, with no palpable effect stemming from the judge’s own political or personal wishes in terms of the final disposition of a case. Thus, the legal model de-emphasizes and discounts the potential impact of a judge’s ideological or policy preferences in a case and instead stresses and focuses on the role of purely jurisprudential factors and law-based considerations.

Attitudinal Model

This orientation of the legal approach in downplaying the political is exactly what political scientists find flawed and lacking, and these concerns led to the respective development of the attitudinal model and the strategic model, which many scholars believe more accurately capture the dynamics underlying judicial behavior. The attitudinal model, as advanced and developed by Jeffrey Segal and Harold Spaeth, contends that judicial decisions are essentially a function of judges’ political ideologies and philosophies. In other words, judges decide cases in terms of their policy wants and preferences. Thus, attitudinal model adherents argue that judges are more result oriented than process-oriented—they decide cases in light of the result they wish, allowing their ideological attitudes to directly affect their resolution of disputes in front of them. As Segal and Spaeth express it, “Simply put, Rehnquist [William Rehnquist, former chief justice of the U.S. Supreme Court] votes the way he does because he is extremely conservative; Marshall [Thurgood Marshall, former associate justice of the U.S. Supreme Court] voted the way he did because he was extremely liberal” (2002, 86). The attitudinal model is essentially the result of a blending and merging of various perspectives and conceptualizations from legal realists, economists, political scientists, and psychologists. This attitudinal orientation has tended to dominate analysis of judicial behavior of the U.S. Supreme Court and other appellate courts, where the justices and judges have higher levels of discretion and leeway in their decisions compared to trial court judges, who are much more necessarily constrained by procedures and precedents.

Strategic Model

The strategic model, also referred to as the rational choice model, takes issue with some of the primary assumptions of the attitudinalists. The debate and dialogue between the strategic and attitudinal models is at the current forefront of judicial politics scholarship in political science (although there is also an increasing call for a greater appreciation of the relevance of the legal model). Proponents of the strategic model accept the attitudinalist proposition that judges are primarily seekers of legal policy, but at the same time point out that judges are not simply ideological automatons who slavishly decide cases liberally or conservatively to advance their political preferences. For strategic model adherents, judges at times will act in a strategic, sophisticated manner (as opposed to sincere behavior) and vote on cases (and take other actions as well on the court) in ways that belie their underlying ideology. In other words, judges will vote divergently from their policy preferences in a case directly in front of them so as to be better able to achieve their policy goals elsewhere or at a later time—judges will sacrifice short-term “loss” for longer-term “gains.”

As Lee Epstein and Jack Knight put it, “justices are strategic actors who realize that their ability to achieve their goals depends on a consideration of the preferences of others, of the choices they expect others to make, and of the institutional context in which they act . . . the choices of justices can best be explained as strategic behavior, not solely as responses to either personal ideology [as the attitudinal model posits] or apolitical jurisprudence [as the legal model contends]” (1998, xiii). Thus, the strategic model incorporates insights from both the attitudinal and legal models, along with its own recognition of the strategic quality behind much of judicial behavior. Prime examples of reasons behind such strategic behavior include: maintenance of good and effective working relations with other justices on the court; not wishing to motivate the Congress to react negatively to a court ruling that may lead subsequently to injury to a justice’s policy preferences; preservation of public opinion/support in favor of the court so as to maintain its institutional legitimacy and influence for future cases; and sensitivity to a period of crisis in the nation and accompanying deference to the elected branches (especially the president acting as commander-in-chief) until a better time develops to act differently.

Bibliography:

Epstein, Lee, and Jack Knight. The Choices Justices Make. Washington D.C.: CQ Press, 1998.
Epstein, Lee, and Thomas G.Walker. Constitutional Law for a Changing America: Rights, Liberties, and Justice. 6th ed.Washington D.C.: CQ Press, 2007.
Hansford,Thomas G., and James F. Spriggs II. The Politics of Precedent on the U.S. Supreme Court. Princeton, N.J.: Princeton University Press, 2006.
Gibson, James L. “From Simplicity to Complexity:The Development of Theory in the Study of Judicial Behavior.” Political Behavior 5 (1983): 7–49.
Maltzmann, Forrest, James F. Spriggs II, and Paul J.Wahlbeck. The Collegial Game. New York: Cambridge University Press, 2000.
Porto, Brian L. May It Please the Court: Judicial Process and Politics in America. New York: CRC Press, 2009.
Segal, Jeffrey A., and Harold J. Spaeth. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press, 2002.

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