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Do Judges Care About Others?

So far we have largely taken judges as caring about their own policy goals. The appointment process may produce high courts populated with judges with particular policy preferences, influencing outcomes in particular cases. The chief justice or others may have particular policy preferences that influence their choice of the size or composition of panels that hear particular appeals. However, not surprisingly a judge may care about other things than the direct policy effects of his decisions, such as how various groups may view him if he votes in favor of or against abortion rights or enhanced national security measures.1

How much do judges care about or respond to other people when making decisions? For example, do judges think about their interactions with their colleagues on the high court when deciding cases? They appear to in at least some cases. For example, a Democratic appointee on the uS federal courts of appeal who is sitting on a panel with two other Democratic appointees will vote in a liberal direction 64 percent of the time but only 44 percent of the time when sitting with two Republican appointees.2 A judge may for a number of reasons decide differently based on the policy preferences or personal characteristics of the others on the panel or bench. A judge who is in an ideological minority on a panel may, for example, act as a “whistleblower” on extreme ideological voting by the others—holding them to account for voting inappropriately in line with

  • 1. See e.g. Lee Epstein & Jack Knight, The Choices Justices Make (Washington, DC: CQ Press, 1998) at 159 (plurality decision in a Planned Parenthood case apparently strictly following precedent from Roe v. Wade); Lee Epstein & Tonja Jacobi, “The Strategic Analysis of Judicial Decisions” (2010) 6 Annual Review of Law and Social Science 341 at 344 [Epstein & Jacobi]; Lawrence Baum, Judges and Their Audiences (Princeton, NJ: Princeton University Press, 2008).
  • 2. Cass R. Sunstein et al., Are Judges Political? An Empirical Analysis of the Federal Judiciary (Washington, DC: Brookings Institution Press, 2006) [Sunstein et al., Are Judges Political] at 23-24. These differences varied across areas of law.

Commitment and Cooperation on High Courts. Benjamin Alarie and Andrew J. Green.

© Oxford University Press 2017. Published 2017 by Oxford University Press.

their own personal views.[1] Whatever the reason, however, who is on the panel may matter more than simply adding together each judge’s vote according to his direct policy preferences.

Judges may care not only about their colleagues on the bench but also about how other branches of government such as the legislature will react to their decisions.[2] For example, US Supreme Court judges did not simply vote what would appear to be their policy preference in civil rights decisions involving constitutional issues between 1953 and 1992. Instead they adapted their voting based on the political preferences of members of the other branches of government who might react to their decisions.[3]

In addition to the direct effect of her decision on law and policy, a judge may care about her long-t erm reputation with other judges or institutional actors, and how it might be affected by such behavior as frequently dissenting. Moreover, she may take into account the broader reputation of the court as a whole—will the public view the court as less legitimate if the judges blatantly vote based on their preferred policy outcome?

In this chapter, we will look at whether three different types of relationships alter how judges decide cases. First, as we saw, judges may be influenced by the policy preferences or personal characteristics of other judges on the bench, or more narrowly on the panel hearing a particular appeal. Do high court judges vote differently if they are on a panel with judges of similar policy preferences versus judges of opposing preferences? Does diversity in personal characteristics on a panel make a difference to outcomes? Second, a judge’s relative status within the court may matter as to how the judge or the panel votes, such as whether the judge is the chief justice or a new appointee (or freshman) on the bench. Finally, a judge may care about how the legislature or government will react to his decision. To what extent do high court judges appear to be influenced by the political preferences of the current government or legislature? We begin with how a judge is affected by her colleagues.

  • [1] Sunstein et al., Are Judges Political, supra note 2 at 15.
  • [2] Epstein & Jacobi, supra note 1 at 351. We will discuss other actors such as interest groupsfurther in Chapter 7.
  • [3] Lee Epstein, Jack Knight & Andrew Martin, “The Supreme Court as Strategic NationalPolicymaker” (2001) 50:2 Emory Law Journal 583 at 610 [Epstein et al., “National Policymaker”](“[t] ests at both the individual and the aggregate levels support the proposition that the Justices adjusttheir decisions in anticipation of the potential responses of the other branches of the government’).
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