Vol. 16 No.8 (August, 2006) pp.603-607
JUDGES AND THEIR AUDIENCES: A PERSPECTIVE ON JUDICIAL BEHAVIOR, by Lawrence Baum. Princeton: Princeton University Press, 2006. 256pp. Cloth. $29.95 / £18.95. ISBN: 0691124930.
THE POLITICS OF PRECEDENT ON THE U.S. SUPREME COURT, by Thomas G. Hansford and James F. Spriggs II. Princeton: Princeton University Press, 2006. 176pp. Cloth. $29.95 / £18.95. ISBN: 0691123543.
Reviewed by Stefanie A. Lindquist, Department of Political Science, Vanderbilt University. Email: stefanie.lindquist [at] Vanderbilt.Edu.
Two new books from Princeton University Press deserve careful attention from scholars of judicial behavior. Although to differing degrees, both direct our attention to influences on judicial behavior that have been largely overlooked by researchers focused on theories of judicial decision making premised on the attitudinal model. In THE POLITICS OF PRECEDENT ON THE U.S. SUPREME COURT, Thomas Hansford and James Spriggs create a nuanced model of the Court’s interpretation of precedent that accounts for the justices’ need to legitimize their policies to the implementing population and to the public. In JUDGES AND THEIR AUDIENCES, Lawrence Baum similarly directs our attention to judges’ need for approval from various actors within and outside the courts on which they serve, including other judges, policy elites, law faculty, the public and the media. Thus both books expand the scope of our gaze beyond the narrow view of judges laboring in relative isolation to promote their personal policy agendas, to one in which judges are embedded in a larger system of law making and interpretation affected by multiple actors inside and outside the judicial hierarchy.
JUDGES AND THEIR AUDIENCES constitutes an impressive scholarly achievement in its expansive analysis of the existing literature and thoughtful presentation of evidence in support of its thesis. Baum argues that judges, like most human beings, are often sensitive to and seek the approbation of others within their social and professional milieu. This impulse to please and impress others has both a personal and instrumental dimension—but it is the personal dimension that interests Baum most. Certainly we would expect that elected judges consider the preferences of their constituencies for instrumental reasons related to reelection (Hall 1992), or that appointed judges on collegial courts might account for the preferences of their colleagues on the bench in order to garner a majority in support of their [*604] opinions (Maltzman, Spriggs and Wahlbeck 2000). These judicial considerations are clearly instrumental, in that they shape judges’ long term and short term strategies in pursuit of legal or policy goals. On the other hand, judges also may be influenced by their audiences on a more personal level and in a non-instrumental fashion. Thus judges on the U.S. Supreme Court may be sensitive to the media’s or the legal community’s evaluation of their opinions, as in the case of Justice Blackmun. Or they may seek to build their reputations by appealing to certain elites or interest groups, as in the cases of Justices Scalia and Thomas. In both these situations, it is hard to identify any strategic dimension to these behaviors even though the effort to satisfy or appeal to certain audiences may influence these justices’ actions on the bench. As Baum points out, Justice O’Connor was keenly aware of the impact of her pronouncements on the public and of public opinion regarding issues before the Court. Her abortion rulings explicitly attest to this sensitivity—perhaps stemming from her experience as a state legislator.
These examples are but a few of the more obvious cases in which judges’ personal, as opposed to instrumental motivations for approval from various audiences may be traced to the content of their judicial decisions. Baum’s book moves far beyond such anecdotes to sift carefully through the existing social scientific evidence on judicial behavior in support of his thesis. As in his previous work, Baum displays a mastery of the literature that is, in short, astounding; the bibliography is encyclopedic. Baum explores research in sociology, psychology, economics, law and political science in his discussion of audience influences on judges’ behavior. Concluding that judges in most circumstances have neither the time nor the inclination to engage in strategic action and that judges’ quest for good policy is probably not as paramount as currently depicted, Baum suggests that the dominant models of judicial behavior do not fully account for the range of observed behaviors on courts. As for policy objectives, Baum suggests that judges may receive more proximate or tangible benefits from audience approval than from policy successes. For example, Baum observes that “judges want colleagues [on the bench] to perceive them as cooperative, as good team players. Because judges gain nothing tangible from the content of their court’s decisions as legal policy, they may find it easy to yield some benefit of getting the decisions they most prefer for enhanced esteem from their colleagues” (p.57). Surely this interest in collegiality accounts, at least in part, for the low dissent rate in federal courts of appeals.
Of course, the rubber meets the road when it comes to testing Baum’s theories systematically. Baum provides ample anecdotal evidence that judges have a personal interest in pleasing some audiences, as well as some interesting systematic evidence that Supreme Court justices who move to Washington, D.C. seem more affected by the liberalizing “Georgetown elite” than do D.C.-based justices such as Warren Burger. Yet clearly the challenge lies in evaluating these theories empirically across multiple judges. Instrumental interests, such as whether judges anticipate and take into account the reaction of legislators, are easier to test. More personalized influences are harder to evaluate simply because they may be more idiosyncratic. As Baum points out, however, that a theory is difficult to test does not render it unworthy of evaluation. It simply requires more creativity. Baum’s book points us in the right direction: now it is up to the [*605] community of scholars to heed the call and attempt to consider these influences in their empirical models.
One more instrumental influence that Baum discusses involves judges’ attention to institutional legitimacy. Very early in the study of judicial behavior, Martin Shapiro (1981) brought this concern to light in his analysis of triadic decision making. Among judges’ tools to enhance institutional legitimacy is their rationalization of decisions using normative justifications. Hansford and Spriggs focus our attention on those normative justifications as a mechanism to promote the legitimacy of the Supreme Court’s policy judgments. In their brilliantly executed study of the treatment of Supreme Court precedent, the authors construct and test an elegant model of subsequent interpretations of those precedents by the Court itself and by lower federal courts. One theme runs throughout the empirical chapters: the vitality of a given precedent has an important effect on the manner in which later courts use that precedent to justify legal outcomes. That is, the justices and lower court judges recognize that vital precedent is a more effective tool for purposes of legitimating policy pronouncements.
The bulk of THE POLITICS OF PRECEDENT focuses on the Court’s own interpretations of existing precedent. Of central importance to the authors’ thesis is the relationship between the current, interpreting Court’s ideological distance from the existing precedent and the precedent’s vitality, operationalized as the difference between previous positive and negative interpretations of the precedent. Where the number is positive and large, the precedent retains greater vitality. That vitality is hypothesized to condition the influence of ideological distance between the precedent and the current Court. For example, even where a substantial difference exists between the ideological predispositions of the interpreting Court and the existing precedent, a vital precedent is still more likely to be cited positively in support of a legal proposition. On the other hand, where a precedent is ideologically proximate to the interpreting court, its citation is more likely to be treated negatively where the precedent is less vital. The story this theory tells is one in which the justices’ attitudinal responses to existing precedent are significantly conditioned by precedent vitality. In short, it is not all about attitudes. It is about attitudes in combination with the justices’ sensitivity to the manner in which they justify their decisions to the implementing audience and to the public.
Using a comprehensive database of all later Court citations to precedent decided between 1946 and 1999, the authors test their hypotheses in several well specified models. The variables of central theoretical importance are (1) precedent vitality, (2) ideological distance between the current Court and the existing precedent, and (3) a multiplicative term of the two. Where this multiplicative term is statistically significant, it reflects the conditional relationship between precedent vitality and ideological distance described above. The models also include more conventional control variables, such as the size of the [*606] coalition that decided a given precedent and the media coverage of that precedent. In most of the models tested, the authors find the conditional relationship originally hypothesized. This relationship holds true in models of positive and negative interpretations of precedent (and especially in the case of positive interpretations), as well as in models evaluating the likelihood that a precedent will be overruled.
The authors also test the impact of precedent vitality on lower court application of Supreme Court precedent. In the model of lower court positive and negative treatments of those precedents, the authors find that appeals court judges are most sensitive to the Supreme Court’s prior positive interpretations of its own precedents. Thus, precedent vitality is of significant import to lower court judges, especially to the extent that those judges positively cite existing precedent. And perhaps most interesting, their models indicate that, once precedent vitality is controlled, the vote margin of a given precedent is not related to lower court judges’ positive or negative interpretation of Supreme Court decisions. This is an important finding that contradicts the existing conventional wisdom that divided decisions reduce lower court compliance.
Hansford and Spriggs conclude that their study supports the notion that precedent operates as both an opportunity and as a constraint. The opportunity lies in the justices’ ability to interpret existing precedent negatively or positively so as to conform that precedent to their own ideological preferences. The constraint lies in their need to use more vital precedents to legitimize and rationalize their decisions as they create new precedent. In reference to the debate between the legal and attitudinal models, the authors argue that “[l]aw and policy are not irreconcilable features of the judicial arena, they are both important considerations that are inextricably linked to one another as the justices interpret and shape the law” (p.130).
Reading these books in tandem produces some useful “lessons” for members of the scholarly community. First, shifting the dependent variable to something other than liberal and conservative voting behavior can yield significant insights into judicial behavior. Baum makes this point explicitly when he encourages “[u]se of dependent variables that are not defined in ideological terms” to test the impact of judges’ audiences on their behavior (p.174). Second, these books both emphasize the notion that judges’ behavior is not purely policy driven, but rather must be evaluated in the light of other institutional and personal factors that may shape behavior beyond attitudes. In the case of THE POLITICS OF PRECEDENT, the influence of institutional factors (in the form of the importance of institutional legitimacy) has an instrumental or even strategic component: the justices recognize that to render their policy pronouncements most effective, they must cite vital precedent. Baum directs out attention beyond such instrumental effects to the more personal nature of judges’ very human desire for respect. In both instances, these are lessons well taken.
Hall, Melinda G. 1992. “Electoral Politics and Strategic Voting in State Supreme Courts.” 54 JOURNAL OF POLITICS 427-46.
Maltzman, Forrest, James F. Spriggs II, and Paul J. Wahlbeck. 2000. CRAFTING LAW ON THE SUPREME COURT: THE COLLEGIAL GAME. New York: Cambridge University Press.
Shapiro, Martin. 1981. COURTS: A COMPARATIVE AND POLITICAL ANALYSIS. Chicago: University of Chicago Press.
© Copyright 2006 by the author, Stefanie A. Lindquist.