JUDGES, THE LAW, AND INSTITUTIONS
Drawing this discussion together, we can then think of three interrelated categories of influences on how judges decide—whether they decide more or less “ideologically” or “cooperatively”:
- • Who is the judge: The judges that sit on the court or on a panel have certain policy preferences and identities. Even if all the institutional rules on two different courts were the same and they were deciding based on the same facts and rules, if the judges on the courts have different preferences and identities they may decide a case very differently. The identity of the judges on the court may then influence outcomes. This category ties most directly into two key court design choices. The first is the choice of the appointment process. It may be, for example, that some appointment processes lead to more political judges or judges with particular political or personal preferences, resulting in more political voting, all other things being equal. The second choice is whether to hear appeals in panels. If subsets of judges hear particular appeals then the choice of which judges hear those appeals may influence the outcome of the appeal.
- • The law: As we discussed earlier, some laws or contexts may provide greater scope for a judge to apply her policy preferences because, for example, of ambiguity in the law. Differences in how judges decide cases in different contexts or across countries will then in part depend on the nature of the law underlying the appeals the court hears.
A judge who tends to want to favor the accused in criminal cases may have more opportunity to acquit an accused in cases where the offense is framed in a more open-ended manner. This factor may, however, also be influenced by institutional design. For example, judges on courts with more discretion about the cases they hear may hear more cases that provide scope for application of policy preferences—either because such cases are more controversial, or because the judges prefer to hear such cases.
• The institutional incentives or constraints on decisions: Even given a particular set of judges and laws, different choices about the design of the court may increase or decrease the costs to a judge of making certain decisions. Think again of the judge who wants to favor accused individuals. Different institutional rules may make it more or less costly to satisfy that preference. For example, a norm against deciding in accordance with policy preferences may raise the cost of such a choice. We will examine a range of design choices that may raise or lower these costs.
It will of course be difficult to separate the influence of each of these factors in particular cases, and they may interact such as where a norm of political voting leads to a more political appointment process. We can, however, look for some indications in how judges decide that point in one direction or the other. We start with the most basic of the institutional choices—how to choose the judges who sit on the court.