How do we explain judges' decisions?
Larry Baum is the anti-Spaeth. While Spaeth's lifetime of bold pronouncements on the nature of Supreme Court decision making might mimic Admiral Farragut's famous command, "Damn the torpedoes. Full speed ahead!," Baum's more deliberate reviews inevitably urge that we slow down, reconsider, and sometimes even reverse course. It is much to our benefit that we have both. Baum's most recent effort, THE PUZZLE OF JUDICIAL BEHAVIOR, comes, by my reckoning, at the golden anniversary of the judicial behavior subfield, as measured from the publication of C. Herman Pritchett's THE ROOSEVELT COURT (1948). That makes this a particularly opportune time for looking backward at what we know, and looking forward at what we don't. Baum's basic premise is that we are far from any sort of explanation of (American) judicial behavior. The fault, surprisingly, is not in ourselves, but in the stars. Our limited progress "results only in small part from weaknesses of research in the field; . . . its primary source is inherent difficulties of explanation" (p. 3). Thus, those looking for a critique of studies that violate statistical assumptions, blindly search for correlations, or measure variables unreliably will have to look elsewhere. Rather, Baum's purpose is to discuss what the existing research in the field does and does not establish. The three substantive chapters begin with an examination of the goal of legal policy versus other goals. Baum reports on the variety of well-established factors that influence trial court judges, including intracourt relations, managing workloads, and career advancement. In contrast, Baum notes that the literature on the Supreme Court is virtually unanimous in its view that the justices are overwhelmingly motivated by concerns over the content of legal policy. Baum contends, however, that it may be unwise to consider justices as solely motivated by such concerns. Baum correctly notes that attitudinal studies, whatever their merit, do not demonstrate by themselves that non-policy goals have no influence the justices. The trouble, though, is demonstrating non-policy goals that do have an influence in a manner that significantly influences the justices' behavior. Baum examines several factors, including pleasing external actors as a source of motivation for the Court, but can only conclude that "the breadth of the justices' operative goals, remains an open question" (p. 55). Chapter 3 deals with the choice judges face between good policy and good law, with particular focus on the Supreme Court. Of course, in many cases these factors are not at variance with one another, and even when they are, Baum notes that motivated reasoning can convince the justices that their preferred policy choice is the correct legal response. Baum also brings to the fore the fact that it is difficult to examine the impact of legal factors on the Court's decisions without controlling for the bias created by the weeding out of legally unambiguous cases at the certiorari stage. Baum argues, perhaps correctly, that if the Supreme Court heard a random sample of lower court cases, the results might include far greater evidence of concern for legal factors. The statistical technology exists to solve this problem, and somewhere out there a graduate student will become rich and famous (OK, neither rich nor famous, but perhaps tenured) by answering the selection bias problem. On lower courts it is clear that legal factors matter substantially, and Baum finds an impressive array of studies to support two such claims: that judges facing different legal rules reach different results; and that role conceptions about precedent influence the degree of influence of precedent. To this I would only add that these arguments could have been strengthened by noting the relatively small and indirect influence that political attitudes have on trial court decisions (e.g., Gibson 1978; Nardulli, Flemming, and Eisenstein 1984). With findings such as these, I am surprised by Baum's conclusion that there is little clear evidence of differential effects of legal goals between the Supreme Court and lower courts. There is in fact abundant evidence of such effects on lower courts; there is virtually no systemic evidence of such effects on the Supreme Court. Moreover, if Supreme Court justices, the only judges in the land not subject to vertical stare decisis, are strongly motivated by their personal policy preferences (p. 42), and lower court judges are not, it is inevitable that other factors must have a relatively greater impact on lower court decisions. Thus, to Baum, while there is good reason to think that legal goals matter less to the Supreme Court, "it is appropriate to remain cautious in assessing the relative importance of legal and policy considerations in lower courts and the Supreme Court" (p. 88). I would be less cautious. The final substantive chapter deals with the debate over strategic choice. Baum examines strategic "voting" within courts, between courts, and between the branches of government. Within courts, Baum reviews the evidence on minimum winning coalitions on the Supreme Court and notes that the hypothesis cannot be supported. But he then argues that strategic justices might not necessarily seek minimum winning coalitions. This, though, points out one potential weakness of strategic studies: without equilibrium-based models to tell us what types of behavior should be expected when, the term "strategic" can explain almost any observed behavior (except perhaps the behavior of certain 9th Circuit judges). In the between-courts literature, Baum focuses on hierarchy and control. Baum finds the picture on compliance with particular decisions to be unclear, while finding stronger evidence of "responsiveness" to broader decisional trends (p. 116). In both circumstances, though, Baum argues that the behavior in question may also be consistent with vertical stare decisis. As for Supreme Court strategy toward Congress, Baum claims it is too early to draw any firm conclusions, but does note that in most cases even strategy-minded justices would be able to vote their sincere preferences. Baum concludes with a chapter directed toward the future of judicial behavior. Baum correctly, to my view, isolates economics and psychology as the fields from which the best decision-making theories will likely devolve. Needless to say, the economic approach to law has taken off in recent years. Alternatively, though Baum can cite a number of recent studies that adopt psychological frameworks, actual testing of psychological models of judicial decision making, e.g., those involving personality, self-esteem, or other concepts that may be crucial to individual-level decision making, have by and large come to a standstill. While the need to interview judges is an impediment to such studies, Jim Gibson has proven that such work can be done, and done well. What we really need is a new generation of scholars willing or able to conduct such studies. Overall, Baum's book displays an extraordinary breadth of knowledge. By my count there are 906 different scholarly references cited! And while the plurality (perhaps even a majority) of the cited works are anchored in political science, the book is exceptionally well informed by related literatures in law, economics, and psychology. Before reading the book I considered myself well-versed in the judicial behavior literature. I wasn't. Indeed, if Baum were to make his 50-page reference section available on the web, that in and of itself would be a tremendous benefit to us all. Graduate students in law-related fields will find the book indispensable, as will legal researchers who are interested in, but not fluent in, the judicial decision making literature. Even those faculty whose work covers the primary focus of the book (judicial decision making with an emphasis on the U.S. Supreme Court) will find much that they didn't know. But these groups of scholars may simultaneously be left wanting more. Three controversies in judicial decision making exemplify what Baum does and does not do: Thirty years ago, scholars hotly debated the interpretation of dimensional analyses. While Schubert, Spaeth and others used scaling techniques to identify the attitudes that influence the justices' decisions, Tanenhaus's famous HARVARD LAW REVIEW article offered a scathing critique. Baum goes no further than noting that "there certainly is some validity to this challenge, but there can be no definitive judgment on this matter" (p. 39). More recently, scholars have debated the impact of public opinion on judicial decisions. Baum declares that judicial decisions covary with public opinion, a point upon which virtually every scholar in the discipline readily agrees. But on the more divisive question of causality, "it remains uncertain whether opinion has a substantial effect" (p. 50). Finally, recent works have attempted to determine the impact of precedent on Supreme Court decision making. Using variations of the same methodology, different scholars reported impact in 11%, 31%, and 47% of the cases. Obviously, our understanding of the Court would differ tremendously dependent on which of these views is correct, but Baum draws no conclusion as to which variations are most appropriate. Thus, some who read this book will want stronger, perhaps even Spaeth-like conclusions. In a different context, Holmes once referred to "that longing for certainty and repose which is in every human mind " (1897, p. 465). Indeed, most types of scientific progress require firm beliefs (Kuhn 1970, pp. 18-25; Hull 1988). Yet the more traditional role of skepticism has its place too. To finish Holmes's quote: " But certainty is illusion and repose is not the destiny of man" (1897, p. 465). Princeton University philosopher Alexander Nehamas argues that uncertainty, "the sense that not only you don't know the truth but that many complex issues are irresolvably ambiguous," is humankind's most underrated idea. "It produces a tentativeness that permits you to see many things from many points of view. Which is, I believe, the best definition of objectivity" (Scott 1998, p. B9). No doubt it will be difficult to find a more thorough, broad-based, and objective book on judicial decision making than THE PUZZLE OF JUDICIAL BEHAVIOR. REFERENCES Gibson, James L. 1978. Judges' Role Orientations, Attitudes, and Decisions: An Interactive Model. American Political Science Review, 72:911-924. Holmes, Oliver W. 1897. The Path of the Law. Harvard Law Review, 10: 457-478. Hull, David L. 1988. Science as a Process. Chicago: University of Chicago Press. Tanenhaus, Joseph. 1966. The Cumulative Scaling of Judicial Decisions. Harvard Law Review, 79:1583-94. Kuhn, Thomas S. 1970. The Structure of Scientific Revolutions, 2nd edition. Chicago: University of Chicago Press. Nardulli, Peter F., Roy B. Flemming, and James Eisenstein. 1984. Unraveling the Complexities of Decision Making in Face-to-Face Groups: A Contextual Analysis of Plea Bargained Sentences. American Political Science Review, 78:912-928. Pritchett, C. Herman. 1948. The Roosevelt Court. New York: Macmillan. Scott, Janny. 1998. In Praise of Uncertainty and Other Underappreciated Concepts. THE NEW YORK TIMES. January 10, 1998, p. B9.