We begin our analysis by addressing the foundation of the entire body of data analytic scholarship on appellate judging: competing theories of judicial decision making.
The oldest theory by far is generally known in the literature as “formalism.” This is the theory we all learned in law school, according to which every decision turns on four factors, each completely extrinsic to the background and ideology of the individual judge: (1) the case record on appeal; (2) the applicable law; (3) controlling precedent; and (4) judicial deliberations (at least in the appellate world). As Judge Richard Posner of the Seventh Circuit has pointed out, Blackstone was describing the formalist theory when he described judges as “the depositories of the laws; the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land.”
In Federalist Paper No. 78, Alexander Hamilton was expounding the same theory when he wrote that judges have “no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. {The judicial branch] may truly be said to have neither force nor will, but merely judgment.”
Much more recently, Chief Justice Roberts endorsed the formalist theory when at his confirmation hearing he compared a Supreme Court Justice to a baseball umpire – merely calling balls and strikes, never pitching or hitting. For decades, politicians have promoted the formalist ideal when they insist that judges should merely interpret or discover the law rather than making it (such comments seem to be most often made in the context of complaints that one judge or another has fallen short of that ideal).
The adequacy of formalism as an explanation for how judicial decisions are made has been questioned for generations. As I noted two posts ago, Charles Grove Haines showed in 1922 that magistrate judges in New York City appeared to be imposing widely varying sentences in factually indistinguishable DUI cases. Many observers have pointed out that if formalism (which posits that there is one correct answer to every case, entirely extrinsic to the judges) best explains how appellate courts actually operate, then dissent should be exceedingly rare, if not unheard of. In fact, dissent isquite rare at intermediate appellate courts, if you consider both unpublished and published decisions. But at appellate courts of last resort, and in all appellate courts when you consider the published decisions which actually shape the law, dissent typically runs anywhere from 20 to 45%. Other observers have suggested that strict formalism cannot explain the importance of diversity in the judiciary, if one assumes that individual judges’ judicial or political ideologies and personal backgrounds are entirely irrelevant.
Still others have pointed out that even the politicians who like to endorse the ideal of formalism have never actually believed that it explains judicial decision making. As Professors Lee Epstein and Jeffrey A. Segal point out in Advice and Consent, their book on the politics of judicial appointments, 92.5% of the 3,082 appointments to the lower federal courts made between 1869 and 2004 have gone to members of the President’s own party. Surely that number would be far lower if the philosophy of an individual judge had no impact on judicial decision making.
Most of all, critics of formalism have argued that in fact, it is possible to predict appellate decision making reasonably well over time based upon factors unrelated to the facts of any specific case and legal doctrine. For example, in a 2004 study performed by Theodore W. Ruger and others, the professors attempted to predict the result in every case at the U.S. Supreme Court during the 2002 term using a six factor model: (1) the circuit of origin; (2) the issue involved; (3) the type of petitioner; (4) the type of respondent; (5) whether the lower court decision was liberal or conservative; and (6) whether the petitioner challenged the constitutionality of a law or practice. They compared the model’s predictions to the results of independent predictions by legal specialists. The statistical (and decidedly non-formalist) model predicted 75% of the Court’s results correctly; the legal experts were correct 59.1% of the time.
Join us back here tomorrow as we address two competing theories of judicial decision making.
Going forward, we’ll continue to post at the Illinois Supreme Court Review on Tuesdays and Wednesdays, and we’ll be posting here at the California Supreme Court Review on Thursdays and Fridays.
Image courtesy of Flickr by Tim Green (no changes).
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