Some thoughts on the study of judicial behavior.

• Author: Epstein, Lee
• Position: Abstract through II. Substantive Areas of Interest A. The Judge: Motivations, Careers, and Performance, p. 2017-2050

ABSTRACT

Back in the 1940s the political scientist C. Herman Pritchett began tallying the votes and opinions of Supreme Court Justices. His goal was to use data to test the hypothesis that the Justices were not only following the "law, " but were also motivated by their own ideological preferences.

With the hindsight of nearly eighty years, we know that Pritchett's seemingly small project helped to create a big field: Judicial Behavior, which I take to be the theoretical and empirical study of the choices judges make. Political scientists continue to play a central role, but they are now joined by economists, psychologists, historians, and legal academics. I briefly explore their contributions. I also consider other developments since Pritchett's time, including the analysis of judicial behavior abroad, the massive improvements in our data, and the increasing number of topics under study. I conclude with some directions the field might take in the next few years. All in all, I am quite optimistic that the study of judicial behavior will continue to hold an important place in the social sciences, history, and, increasingly, I hope, law.

TABLE OF CONTENTS INTRODUCTION I. NOTES ON THE EVOLUTION OF THE STUDY OF JUDICIAL BEHAVIOR A. Disciplines B. Worldwide Interest C. Data D. Why All the Attention? II. SUBSTANTIVE AREAS OF INTEREST A. The Judge: Motivations, Careers, and Performance B. Other Topics and Research Questions 1. Judicial Independence and Dependence 2. The Selection and Retention of Judges 3. Access to Judicial Power 4. Opinions and Precedent 5. Collegial Courts 6. The Hierarchy of Justice 7. Executives and Legislatures 8. Litigants, Attorneys, and Interest Groups 9. Public Opinion and Macroevents 10. Implementation and Efficacy of Judicial Decisions CONCLUSION: THE FUTURE INTRODUCTION

The name C. Herman Pritchett is probably unfamiliar to many in the law community, but he was a very famous political scientist; a prolific scholar; (1) a great citizen of the University of Chicago, where he spent much of his career; (2) and a leader in the profession, serving as the president of the American Political Science Association. (3)

But back in the fall of 1940, when Pritchett was just starting his career, he had his "own version of Newton's apple." (4) As he tells it:

I was reading the current issue of the Supreme Court Reporter in my office at the University of Chicago, one floor above and some thirty feet west of the inscription on the Social Science Research Building which quotes Lord Kelvin's statement that "When you cannot measure, your knowledge is meager and unsatisfactory," when I was struck by what seemed a peculiar combination of [J]ustices who had joined in a dissent to one of the Supreme Court's opinions. I began to wonder what it was in that case and in the autobiographies of those [J]ustices that led them to disagree with the majority of the Court on the issue there raised. (5) With this revelation, Pritchett set out to collect data on Supreme Court Justices: the number of dissenting votes, the fraction of agreements with other Justices, their support for the federal government in tax cases, and on and on. (6)

By today's standards, Pritchett's counting project seems small, even quaint. (7) But back in the 1940s, it was unique enough to generate some public interest. Arthur Krock of the New York Times wrote of a young political scientist who was keeping "box scores" of the votes and opinions of Supreme Court Justices. (8) The Washington Post was downright hostile to his methods. After Harvard Law Professor Mark De Wolfe Howe "doubted 'whether the statistical analysis of Supreme Court opinions can, under any circumstances, be fruitful!,]'.... [t]he Washington Post editorialized: "We hope that Mr. Howe's expose of this shallow thinking about the judicial process will hasten the relegation of box scores to the sports pages--where they belong.'" (9) Pritchett took note of this criticism, (10) but, "[a]s an old White Sox fan, he was not offended." (11)

Pritchett also knew he was not tallying votes just to tally votes. His ideas were much deeper: he wanted to use data to test the hypothesis that the Justices were not only following the "law"--text, precedents, and the like--but were also motivated by their own ideological preferences. To that end, he created matrices showing the number of nonunanimous decisions in which pairs of Justices voted together, as well as left-right continua. (12) Operating under the assumption that such comparisons revealed the Justices' "'liberalism' and 'conservatism' as those terms are understood by the man in the street," (13) Pritchett concluded that ideology influenced the Justices' decisions. (14) (Figure 1 provides an example of what Pritchett was up to, only I use today's Justices and not the McReynolds, Blacks, and Frankfurters who populated Pritchett's Court.)

[FIGURE 1 OMITTED]

I emphasize the "data" part of Pritchett's project because it is the crucial part. Without data, Pritchett would have been just another legal realist: a writer making claims, however insightful, with only examples and anecdotes to back them up. (16) Having data to demonstrate that the realists were right is, in part, what made Pritchett's ideas so powerful. (17)

And powerful they were. With the hindsight of nearly eighty years, we know that Pritchett's seemingly small project helped to create a big field (18): Judicial Behavior, which I take to be the theoretical and empirical study (19) of the choices judges make. (20)

Political scientists continue to play a central role, but they are now joined by economists, psychologists, historians, and legal academics. In Part I, I briefly explore their important contributions. I also consider other developments since Pritchett's time, including the study of judicial behavior abroad and the massive improvements in data. These are not the only indicators of the field's evolution. Another is the number of substantive topics that have come under analysis. Pritchett focused on the individual judge, and that remains at the field's core. But many other topics have come under study, ten of which I consider quite briefly in Part II.

I conclude with some directions the field might take in the next few years. (21) All in all, I am quite sanguine that the study of judicial behavior will continue to hold an important place in the social sciences, history, and, increasingly, I hope, law.

1. NOTES ON THE EVOLUTION OF THE STUDY OF JUDICIAL BEHAVIOR

   It would be impossible in this short Article to describe the full evolution of the study of judicial behavior from Pritchett through today. (22) In what follows, I focus on a few key developments: (1) the influx of scholars from other disciplines; (2) the worldwide interest in judging; and (3) improvements in data. I reserve discussion of what may be the biggest change of all--the increase in the number of substantive topics under analysis--for Part II.

   1. Disciplines

      Although I have not conducted a systematic study of the matter, it is probably fair to say that interest in judicial behavior remains highest among political scientists. But that is changing. Political scientists are now joined by other social scientists, especially economists and psychologists, many of whom also have J.D.'s. Legal historians and law professors are important players in the field too. Needless to say, the influx of ideas from these disciplines has improved the field in ways big and small.

      Let me start with economists. Their theoretical and methodological contributions to the study of judicial behavior are many--too many to recount here. If forced to name just one, I would say they have redirected attention from the political scientists' emphasis on ideology as the primary driver of judicial decisions to the many other goals that judges pursue, whether legal, personal, or professional. (23)

      I discuss some of these motivations in Part II, so it will suffice here to provide a flavor of their work by focusing on one goal economists (and others) have highlighted: the judges' desire to retain their jobs. This goal was not on Pritchett's radar screen because he studied life-tenured federal judges. (24) But once scholars turned to state judges, most of whom...