JUDICIAL CREDIBILITY.

• Author: Huang, Bert I.

ABSTRACT

Do people believe a federal court when it rules against the government? And does such judicial credibility depend on the perceived political affiliation of the judge? This study presents a survey experiment addressing these questions, based on a set of recent cases in which both a judge appointed by President George W. Bush and a judge appointed by President Bill Clinton declared the same Trump Administration action to be unlawful. The findings offer evidence that, in a politically salient case, the partisan identification of the judge--here, as a "Bush judge" or "Clinton judge"--can influence the credibility of judicial review in the public mind.

TABLE OF CONTENTS INTRODUCTION I. COMPARING JUDICIAL CREDIBILITY A. Survey Design B. Survey Population C. Findings II. BUSH JUDGES, CLINTON JUDGES? A. Whose Credibility? B. Other Contexts? C. Further Limitations CONCLUSION: CREDIBILITY AND LEGITIMACY INTRODUCTION

"We do not have Obama judges or Trump judges, Bush judges or Clinton judges." (1) So says Chief Justice John Roberts. But what do the people think?

This Article uses a survey experiment to see if there may be differences in how much credibility a judicial ruling gets in the public mind, depending on whether the judge is labeled a "Bush judge" or a "Clinton judge." Here is how the experiment works: Among the federal courts recently ruling against the Trump Administration on an issue of national salience, one of the district judges was appointed by President George W. Bush and another was appointed by President Bill Clinton. (2) The issue at hand is the Administration's attempt to cancel the Deferred Action for Childhood Arrivals program, or DACA, which was started by the Obama Administration to provide deportation relief for certain immigrants, often called "Dreamers." (3) This study was conducted before the Supreme Court granted certiorari in these cases.

Each of these two district judges ruled that the Trump Administration's attempted rescission of the DACA program was unlawful. (4) And because they issued opinions that overlap in reasoning and result, it becomes possible to conduct an experiment--accurately informing one group of survey subjects that the judge who ruled this way was appointed by President Bush, while telling another group that the judge was appointed by President Clinton. The outcomes of interest are these: What do survey subjects believe about the lawfulness of the Trump Administration's action, after being told about federal court rulings declaring it unlawful? And do subjects' responses differ based on whether the judge is a Bush or Clinton appointee? (5)

The aim here is to observe "judicial credibility" in a straightforward sense--the degree of influence that a court's ruling has on people's beliefs about the very question ruled upon by the court. (6) More specifically, in this case it can be seen as the credibility of judicial review, given that the rulings concern the legality of a government action. How much credibility does a federal court's decision have in influencing people's beliefs about what the government can or cannot lawfully do? And does that credibility depend on the perceived political affiliation of the judge?

Worries about questions such as these are what motivated Chief Justice Roberts, presumably, to fire off such a public retort to a presidential comment criticizing a ruling against the Administration as coming from an "Obama judge." (7) The prospect of eroding respect for at least one federal judge also seems to be what motivated that comment in the first place, as well as a later tweet replying to the Chief Justice. (8) But it is not only the most partisan voices who are labeling federal judges like this: even major news outlets have now made a habit of saying which president appointed a given federal judge, perhaps seeing it as information a reader might wish to know or ought to know. (9) How much has the public internalized these pervasive signals about the relevance of the appointing president for assessing a judge's rulings? Could such signals be eroding public respect for the federal judiciary? (10) Could the political labeling of judges even affect whether people believe the rulings of our federal courts?

This study takes an empirical step toward answering such questions. To venture some hypotheses, it is easy to imagine various psychological factors that may be at work. (11) First, some people may give more credibility to a judge perceived to share their own political leaning. (12) Second, some may give more credibility to a ruling against the Administration if it comes from a judge perceived to be more sympathetic toward the Administration--as when a child asks her more lenient parent for a chocolate, but is still told "no." (13) These two factors may widen the gap in influence between a Bush-appointed judge and a Clinton-appointed judge. (14) Third, because the DACA rescission issue is a fairly technical legal question, one might expect the general public to find court rulings especially informative. And yet, fourth, given the political salience of the DACA program, some people may want to believe that its rescission is lawful or unlawful, and they may hold on to such a motivated belief despite contrary information. (15) These latter two factors may work against each other in affecting the impact of a court ruling on people's beliefs.

Two notes about the survey subjects are in order before previewing the findings. First, because in these DACA cases the federal courts have ruled against a Republican administration, this study focuses only on the reactions of self-identified Republicans. (16) A similar configuration of cases in a Democratic administration would be needed for a parallel study of how Democrats respond to an unfavorable ruling. Second, these findings are not based on a nationally representative sample; due to the recruitment method, there is an overrepresentation of older subjects. (17)

The findings, in brief: Judicial credibility can vary based on the political labeling of the judge. Telling these survey subjects that a Bush-appointed judge ruled against the Trump Administration exerted more influence on their beliefs than telling them that a Clinton-appointed judge did so. The degree of influence seems limited in either case, however. Many subjects appeared to stick to their prior beliefs about the legality of the Administration's action despite being told about rulings to the contrary by either judge. Moreover, these prior beliefs correlate with subjects' views on DACA as a policy matter. Subjects who said that DACA is generally a bad policy were less likely (than other subjects) to say that the rescission was probably unlawful and much more likely to say that it was probably lawful.

Part I will detail the survey design and present the data, and Part II will discuss what these findings might teach us (or not) about the political labeling of federal judges and about the credibility of judicial review. The Conclusion will relate judicial credibility to concerns of judicial legitimacy, situating these findings in a political moment when numerous government actions are being blocked by the lower federal courts--a time when their credibility is repeatedly put to the test.

1. COMPARING JUDICIAL CREDIBILITY

   The configuration of the DACA-rescission cases created an opportunity to compare the influence of telling people that a ruling against the government had been made by a judge appointed by President George W. Bush, (18) with that of telling people the same ruling had been made by a judge appointed by President Bill Clinton. (19)

   At the time these surveys were conducted (June 2019), four federal district courts had ruled on the lawfulness of how the Trump Administration tried to cancel the DACA program. (20) In essence, three of the district courts had ruled against this Administration, issuing preliminary injunctions or partial relief in a way that put the DACA program in a holding pattern. (21) Among the appeals from these rulings, the U.S. Court of Appeals for the Ninth Circuit had reached a decision largely affirming the court below and upholding its remedy. (22) One other federal district court had ruled in favor of this Administration, (23) but the U.S. Court of Appeals for the Fourth Circuit had reversed. (24) Notably, when this survey was conducted, the Supreme Court had not yet granted certiorari in these cases (much less heard oral arguments or reached a decision). (25)

   1. Survey Design

      The surveys conveyed simplified information about the state of these federal court rulings. (26) One Bush-appointed judge and one Clinton-appointed judge issued district court opinions that overlapped enough to be summarized in an identical way; (27) in either case, the judge could be fairly characterized in the survey text as ruling "that the government had failed to show that the DACA program is unlawful"; that "the government had failed to properly explain its decision, as federal law requires"; and that therefore, "the way the government tried to cancel the program was unlawful." (28) Other aspects of their rulings did not align, but this characterization captures their shared bottom line, for purposes of this study. (29)

      Two experimental conditions could thus be created, with identical information except for which president appointed the judge making the ruling. I will refer to these as the {Bush judge} and {Clinton judge} conditions. For the {No ruling} condition, in which no information is revealed about any courts' rulings, the legal conclusions noted above are instead attributed to the challengers in the lawsuits, as arguments they raised. Each survey subject sees only one of the three conditions in this study's between-subject design.

      Here is what the subjects experience as they take the survey. They first encounter a very brief explanation of the DACA program. The same phrasing is used for all survey subjects:

      In 2012...