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"An original contribution to the study of judicial politics that draws from the field of social psychology to suggest a radically new approach to the study of decisional behavior."—Sheldon Goldman, University of Massachusetts, Amherst
"This book makes a very strong case that we need to begin to look at judicial behavior in a way that is not reflected in any of the most significant recent work. It will change the way many scholars think about the courts."—Donald Songer, University of South Carolina
One of Choice's Outstanding Academic Titles for 2006
"Judges and Their Audiences constitutes an impressive scholarly achievement in its expansive analysis of the existing literature. . . . Lawrence Baum argues that judges, like most human beings, are often sensitive to and seek the approbation of others within their social and professional milieu. . . . 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."—Stefanie A. Lindquist, Law and Politics Book Review
"Lawrence Baum employs a range of empirical evidence on courts, combining the literatures on judicial decision making and social psychology to examine the influence of the legal profession, the media, and close colleagues on the self-presentation of judges."—Law & Social Inquiry
In 1989, Cincinnati Reds manager Pete Rose faced an investigation of his alleged gambling activities by major league baseball. Rose's attorneys filed suit to block the investigation, and they steered the case to a Cincinnati judge who faced re-election in 1990. That judge, Norbert Nadel, allowed his announcement of a decision to be televised. When he "started the hearing with a microphone check," according to one writer, "you knew Pete Rose had the home-court advantage" (Cleveland Plain Dealer 1989). Indeed, the ruling gave Rose what he wanted. (Cincinnati Enquirer 1989)
As George W. Bush ran for president in 2000, commentators speculated about possible candidates for Bush appointments to the Supreme Court.
J. Harvie Wilkinson and J. Michael Luttig, two subjects of the speculation, sat on the federal court of appeals for the Fourth Circuit in Virginia. In two cases decided in June 2000, Luttig wrote opinions attacking relatively liberal positions that Wilkinson was taking. In an environmental case Luttig linked Wilkinson's position with that of two liberal Supreme Court justices. In a freedom of speech case Luttig used Wilkinson's name more than fifty times, with four of thementions coming in a paragraph that described sexually explicit material related to the case. (Urofsky v. Gilmore 2000; Gibbs v. Babbitt 2000)
On the day in 1992 that the Supreme Court announced its decision in Planned Parenthood v. Casey, Justice Anthony Kennedy talked with a legal reporter in his chambers before the announcement. Looking through his window at the crowd of demonstrators on both sides of the abortion issue, Kennedy referred to the impending decision in which he coauthored the decisive opinion. "Sometimes you don't know if you're Caesar about to cross the Rubicon or Captain Queeg cutting your own tow line." Shortly before taking the bench, Kennedy asked to be alone. "I need to brood," he explained. "I generally brood, as all of us do on the bench, just before we go on. It's a moment of quiet around here to search your soul and your conscience." (T. Carter 1992 39-40, 103)
A few weeks earlier, Justice Harry Blackmun spoke for an hour at a luncheon meeting of the Legal Aid Society in San Francisco. During his talk Blackmun read some of the fan mail he received from the public. He also expressed his disappointment about the Supreme Court's growing conservatism on civil liberties issues. "It seems to get a little lonely. If I had more sense, I suppose I would turn in my suit." According to a reporter, this statement elicited "a chorus of 'No!'" Blackmun responded that he would "stay there for the moment." (Holding 1992)
Justice Antonin Scalia frequently speaks in public about his views on legal matters. In these talks he sometimes discusses issues that the Supreme Court addresses, such as capital punishment and the church-state relationship. In a 2003 speech, for example, Scalia criticized a federal court of appeals ruling that inclusion of "under God" in the Pledge of Allegiance violated the First Amendment (Salmon 2003). Nine months later, when the Supreme Court voted to review that ruling in Elk Grove v. Newdow, Scalia acceded to the plaintiff's request that he recuse himself from the case. (Lane 2003)
THE FIVE EPISODES just described are diverse in form, but they also have something in common: all of these judges were communicating with sets of people and trying to influence the perceptions of those audiences. In quite different ways they all sought to present themselves in a favorable light and, in the case of Judge Luttig, to cast an unfavorable light on a colleague (A. Cooper 2000).
The motivations of the judges in the first two episodes are uncertain, but each judge may have perceived a concrete advantage to his actions. Judge Nadel could anticipate that gaining the maximum publicity for his ruling in favor of a popular figure would enhance his prospects for reelection the next year. Judge Luttig could hope that by calling attention to the differences between his legal positions and those of a possible rival for promotion, he was advancing his candidacy.
Indeed, these judges' career goals might have influenced the substance of their decisions. Judge Nadel had good reason to think that his chances for reelection would improve if his ruling was consistent with the strong views of many Cincinnati voters. Judge Luttig probably would have taken the same general positions even if he had no interest in promotion, because those positions were consistent with his well-established conservatism. But the value of distinguishing himself from Judge Wilkinson may have led Luttig to accentuate his conservative stances on free speech and environmental protection in these cases.
Of the scholars who study judicial behavior, most would see these possibilities as credible. These scholars typically give limited attention to judges' career goals, in part because their field focuses on the Supreme Court. Still, few would reject the proposition that judges with insecure tenure or prospects for promotion sometimes act with those considerations in mind (but see Posner 1995, 111).
The motivations of the Supreme Court justices in the other three episodes do not have as straightforward an explanation. What did these justices expect to gain from their public expressions? With life terms on the highest court, they could not be seeking retention in their positions or promotion to another position-except, perhaps, chief justice. Students of the Supreme Court emphasize the justices' interest in the substance of legal policy, in making good law or good policy, more or less to the exclusion of other goals. Perhaps these three justices thought they were advancing their conceptions of good law or good policy in some fashion. It is difficult, however, to see how Kennedy or Blackmun could do much to achieve those goals through the public expressions I described earlier.
In the case of Justice Scalia, this explanation is more plausible. Scalia may seek to shape attitudes about legal issues within the public and the legal community, ultimately helping to win judicial support for the policies he favors. But this is a strategy with a highly uncertain and distant payoff, and that potential payoff would not seem to merit even the limited efforts required to undertake it. Moreover, as Scalia's recusal illustrates, the effects can be negative as well as positive.
Yet the behavior of these justices does not defy explanation. Presented with descriptions of the three episodes, most people outside the academic world would have a ready explanation: judges, like other people, get satisfaction from perceiving that other people view them positively. If Justice Kennedy wanted to be seen as a serious and thoughtful jurist, if Justice Blackmun liked to hear that some fellow lawyers appreciated his presence on the Court, if Justice Scalia enjoyed presenting his positions to groups that agreed with him, those motivations accord with what we know about human nature. Nor, I suspect, would most students of judicial behavior dissent from this interpretation. After all, these scholars seek to explain judges' choices in cases, not the choices they make in other settings.
But what if a desire for approval actually affected the positions these justices took in cases? Perhaps Kennedy's unexpected position in Planned Parenthood v. Casey, upholding the bulk of what the Court had decided in Roe v. Wade, reflected an interest in approval from the lawyers to whom he was talking through a reporter. Perhaps Blackmun was reinforced in his shift toward a more liberal record by the favorable reactions of liberal groups such as the one to which he spoke. Perhaps Scalia takes more extreme positions than he otherwise would in order to win accolades from conservative groups with which he interacts.
Students of judicial behavior might agree that this type of influence exists. But their research hardly ever takes it into account, because it involves a motivation that does not fit in the models that dominate scholarship on judicial behavior in political science. In those models judges are impervious to influence from others, or they are susceptible to this influence only for instrumental reasons-in the case of the Supreme Court, as a means to help them achieve good legal policy.
This book departs from those conceptions of the relationship between judges and their audiences. I argue that judges care about the regard of salient audiences because they like that regard in itself, not just as a means to other ends. Further, I argue, judges' interest in what their audiences think of them has fundamental effects on their behavior as decision makers. Through their choices in cases, judges engage in self-presentation to audiences whose esteem is important to them.
Because this argument does not fit within the dominant models, it offers a different perspective. The central purpose of this book is to show how that perspective can enhance our understanding of judges' choices. This perspective is intended as a means to think in new ways about issues in judicial behavior and, in the process, to strengthen the dominant models.
The book's inquiry is limited to courts in the United States. I give primary attention to higher courts, especially the Supreme Court. That emphasis mirrors the subject matter of scholarship on judicial behavior. Further, it is in higher courts that the perspective of audiences raises the most serious challenges to existing understandings of judicial behavior. However, my interest extends to lower courts. As I discuss in chapter 6, a perspective based on judges' relationships with their audiences is one means to study lower courts in the same terms as higher courts.
The place to begin my inquiry is with the dominant models. The next three sections of the chapter review those models with the aim of identifying their assumptions, examining the implications of those assumptions, and considering their limitations. The final section sketches out an audience-based perspective as a means to expand our understanding of judicial behavior.
At the outset, I should underline a distinction between the views of scholars and the scope of the models they employ. I emphasize the restrictive assumptions of the dominant models concerning judges' motivations. Models are intended to simplify reality for analytic purposes, and many scholars who adopt those models would accept broader conceptions of judicial motives. Some explicitly caution that their models do not fully encompass the forces that shape judicial behavior (e.g., Maltzman, Spriggs, and Wahlbeck 2000, 27-28; see Epstein and Knight 1998, 49). Thus I characterize not the views of scholars in the field but the models that dominate research in the field.
MODELS OF JUDICIAL BEHAVIOR
The scholarship on higher courts has depicted three ideal types of judicial behavior, typically labeled legal, attitudinal, and strategic. In a pure legal model, judges want only to interpret the law as well as possible. For this reason they choose between alternative case outcomes and doctrinal positions on the basis of their legal merits. In a pure attitudinal model judges want only to make good public policy, so they choose between alternatives on the basis of their merits as policy. In most pure strategic models judges seek to make good policy, but they define good policy in terms of outcomes in their court and in government as a whole. Thus they may deviate from their most preferred policy position in a case as a way of helping to secure the best outcome.
In practice, the picture is more complicated. Scholars have developed variants of the three ideal types, and only one of those types-the strategic type-currently has many adherents in its pure form. I begin by considering models based on the strategic type and then turn to the mixed models that developed from the other types.
Like related terms, strategic is used in various ways (see Baum 1997, 90 n. 2; Caminker 1999). My summary of strategic models indicates my own usage of the term. Strategic judges consider the effects of their choices on collective outcomes, both in their own court and in the broader judicial and policy arenas. In other words, they do not simply do the right thing as they see it, such as voting for the most desirable policy on freedom of speech. Rather, they seek to have the right thing triumph in their court's decision and, more important, in public policy as a whole. For this reason, whenever strategic judges choose among alternative courses of action, they think ahead to the prospective consequences and choose the course that does most to advance their goals in the long term.
To achieve this result, judges might vote and write opinions that differ from their own conceptions of the right thing. Thus we cannot assume that a judge's vote in a freedom of speech case fully reflects the judge's conception of good policy. If the goal of an appellate judge is to advance freedom of speech as much as possible, she might take a more moderate position in a particular case in order to win majority support for a pro- free speech ruling by her court. The judge might also try to avoid a decision that provokes Congress to enact legislation limiting free speech.
Judges could act strategically to advance a variety of goals, not just good policy. State judges who lack life terms might balance policy goals against their interest in remaining judges (e.g., M. Hall 1992; Langer 2002). Judges might seek to advance their conceptions of good law (Ferejohn and Weingast 1992) or strive to achieve both good law and good policy (Spiller and Tiller 1996). But in most strategic models that are applied to federal courts, judges act solely on the goal of achieving good policy.
As suggested already, strategic policy-oriented judges direct their efforts at multiple objects. They consider colleagues on their own court (Maltzman, Spriggs, and Wahlbeck 2000; Hammond, Bonneau, and Sheehan 2005) and judges on other courts (Songer, Segal, and Cameron 1994; Cameron, Segal, and Songer 2000). They also concern themselves with the other branches of government (Spiller and Gely 1992; Schwartz, Spiller, and Urbiztondo 1994; Epstein, Knight, and Martin 2001) and the general public (Epstein and Knight 1998, 157-77). As a result, the strategic judge is subject to influence from a variety of sources. One possible result underlines the impact of strategy: judges who do not care about making good law nonetheless might base their decisions on legal considerations, because they think the public expects them to act on a legal basis. They do so in the belief that if they act in accord with public expectations, the public will be more willing to accept and comply with their decisions (Epstein and Knight 1998, 163-77; see Easterbrook 1992, 287).
Models of strategic judges who are devoted to achieving good policy have some very attractive features. They provide a comprehensive and coherent framework for the analysis of judicial behavior. They also promote rigor in the analysis of that behavior. Primarily because of these virtues, strategic models have become highly influential, and a strategic conception of judicial behavior is now the closest thing to a conventional wisdom about judicial behavior (see Epstein and Knight 2000).
Attitudinal and Quasi-Attitudinal Models
In the terms used in rational choice analysis, judges of pure attitudinal models act sincerely (or naively) rather than strategically. Devoted to good policy as a goal, attitudinal judges act directly on their policy preferences without calculating the consequences of their choices. They cast votes and write opinions that perfectly reflect their own views, regardless of what their court colleagues and other policymakers might do in response. In this model a judge's vote on an issue involving freedom of speech reflects solely what the judge thinks is good policy on the issue in question.
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List of Tables ix
Chapter 1: Thinking about Judicial Behavior 1
Models of Judicial Behavior 5
Shared Assumptions: The Judge as Mr. Spock 9
Limitations of the Dominant Models 19
Audience as a Perspective 21
Chapter 2: Judging as Self-Presentation 25
People and Their Audiences 25
Judicial Self-Presentation: A First Look 32
Audiences and Judicial Behavior 43
Chapter 3: Court Colleagues, the Public, and the Other Branches of Government 50
Court Colleagues 50
The General Public 60
The Other Branches 72
Chapter 4: Social and Professional Groups 88
Social Groups 88
Professional Groups: Lawyers and Judges 97
Chapter 5: Policy Groups, the News Media, and the Greenhouse Effect 118
Policy Groups 118
The News Media 135
A Greenhouse Effect? 139
Appendix: Procedures for Analysis of Voting Change by Supreme Court Justices 155
Chapter 6: Implications for the Study of Judicial Behavior 158
Motivational Bases for the Dominant Models 158
Departures from the Dominant Models 162
Probing the Impact of Judicial Audiences 171
Some Final Thoughts 174
Name Index 221
Subject and Case Index 229
Posted December 7, 2009
No text was provided for this review.