The Courts Suffer from the Consequences of Democracy

One of the most debated subjects in regards to the judiciary branch, particularly the Supreme Court, is whether the Court is political. That is to say whether or not political ideology influences judges' legal decisions or if it is other factors. This is especially true following Roe v. Wade and Planned Parenthood v. Casey’s overturning by the court which, surprise surprise, has only now made leftists question the integrity of the Court. We all know this is because of the left’s strategic ability to create outrage at only what their agenda perceives as evil. In the realm of legal analysis, however, we see a very different story of how the left’s outrage is correct for all the wrong reasons. One mainstream viewpoint of legal scholars in the legal model suggests “that legal decision making is nothing more than a sincere belief that their decision represents their best understanding of what the law requires” [1]. This assumes only noble intentions from judges, but as many point out makes “virtually any decision can be consistent with the legal model; and any decision is consistent with it so long as the judge has sincerely convinced herself that the decision is legally appropriate.” [1]. Such a model is unfalsifiable making it an unscientific and ridiculous attempt at describing judicial behavior. Nonetheless, many laypeople do hold this belief, particularly with faith in legal institutions until the Court acts against the current thing of the day.

Literature however suggests two different theories of judicial behavior that have far more backing when considered from a praxeological and empirical angle. One, postulated far more often by Political “Scientists”, is that Political Ideology is the main motivator for judicial decision-making. The second, postulated most commonly by Economists and some legal scholars, is that the main motivation is that justices maximize benefits to themselves, factors such as job satisfaction, external satisfaction, leisure, salary/income, and promotion. Each of these theories has some merits, but the latter is far more convincing and encompasses the reality considering judicial behavior supported by Hans-Hermann Hoppe’s analysis of judiciaries under Democratic systems.

Looking at the former theory of judicial behavior concerning political ideology as the primary motivation for judicial behavior is best explained by Alison Harris and Maya’s paper “Bias and Judging”. The paper establishes that “research within political science has taken the strong influence of ideology on decision making as a given” due to the vast amount of empirical backing and literature on the subject that suggests it is the case [2]. Going by the Attitudinal model research, the paper cites a plethora of literature showing an effective predictive power of ideology on judicial decisions [2]. However, the paper does not stop at ideology as a predictive influence on judicial decisions, as it also addresses identity as a factor. The paper suggests that “characteristics such as race, ethnicity, and gender can sometimes predict judicial decision making in limited kinds of cases”, but also states that “these characteristics are far less important in shaping or predicting outcomes than is ideology” [2]. However, the paper also states that these characteristics are also heavily correlated with political ideology. This point is an important one as it folds into the second theory of judicial behavior and connects the two.

This second theory of “personal motivations for judicial choice” lays out several factors connected to the personal incentives and motivations of judges as a greater predictor and reason for judicial behavior than other explanations [3]. These factors include job satisfaction, external satisfaction, leisure, salary/income, and promotion, all of which are universally accepted motivations for behavior in most other career paths but are often ignored when it comes to the analysis of the courts [3]. This is usually due to this lofty idea held by political scientists and laypeople alike of the “prestige” of the position makes them immune to such, but the literature suggests otherwise. The main criticism of this explanation of judicial behavior is in the idea of promotion as a motivation not being present at the Supreme Court level, as the only potential promotion within the field is to Chief Justice, and seeking the position is rare among justices [3]. However, the evidence is clear it is a very real motivation for justices in the lower courts, even if not applying to all, but that judges who are in a position for upward mobility are more likely to make politically popular decisions [3]. As for the other factors, the evidence is very clear in favor of them having a significant impact on the decisions made by judges, from the fact legislatures will use judicial budgets as a signaling device of satisfaction of performance to judges not dissenting on certain cases if they would incur additional cost to their resources [3].

Now how does this make this theory of behavior superior to that of the latter one that ideology is a primary factor in judicial decision-making? One could compare the numerous empirical studies presented by both papers and argue about which ones have a better methodology or better results for supporting their theories. Doing so would take an immense amount of time to only come to a conclusion that is likely inconclusive and still up for debate. Though if one examines it under a praxeological mindset you will see that these two theories are not contradictory and that the latter encompasses the former. The superiority of the latter theory of personal motivations is not due to the former being wrong, but that the former is correct and is downstream from personal motivations. As Harris and Sen’s paper says that ideology “correlates closely with gender, race, and ethnicity.” and these factors influence personal motivations it would be reasonable to assume that ideology is formed due to these factors [1]. The psychological research on the subject of how ideology forms suggest this very thing, as personal goals are often the reason one adapts ideology [4]. This is also consistent with the incentives that exist under a democratic system, even for those part of it that is not democratically elected. Since under a democratic system the resources that the politicians, including judges, are not their own, but are mere “caretakers” of it and hence have the incentive to expropriate as much of the resources to themselves rather than to cultivate it and this can be seen in judicial decision making as previously established reasoning show through empirical research [5].

Therefore, what is clear is that Judges do make judicial decisions based on their motivations and ideology, as is demonstrated both by empirics and can be reasoned to via praxeology. The key distinction, however, is that personal motivation is a more encompassing and sound explanation of judicial behavior as an ideology is downstream from it, but does not cover all decisions. Ideology does not explain things such as a judge ideologically dissenting from a particular ruling, but choosing not to vote against it for the sake of “saving their time”. The theory of personal motivations as the factors that determine judicial behavior does. This is why that future analysis of such must take this into account as the bulk of the research has not, typically that done by Political Scientists, while Economists and Legal scholars have made these observations and reached better and more conclusive results and have greater predicting power.

Citations:

1. Segal, J. A. (2011). Judicial Behavior. The Oxford Handbook of Political Science. DOI: 10.1093/oxfordhb/9780199604456.013.0014

2. Harris, A. P., & Sen, M. (2019). Bias and Judging. Annual Review of Political Science, 22, 241-259. https://doi.org/10.1146/annurev-polisci-051617- 090650

3. Epstein, L., & Knight, J. (2013). Reconsidering Judicial Preferences. Annual Review of Political Science, 11, 11-31. https://doi.org/10.1146/annurev-polisci-032211-214229

4. Federico, C. (2009, September). How people organize their political attitudes. American Psychological Association. https://www.apa.org/science/about/psa/2009/09/sci-brief

5. Hoppe, H. (2011). Democracy The god that failed: The economics and politics of monarchy, democracy, and natural order. Transaction Publishers