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Judges Do Not Clearly Tend to Vote in Line with Like-Minded Litigants

A judge may share a number of characteristics with a party. They may have similar ideological or political views, a common province or state of origin, or even a shared personal trait such as professional background.[1] We may expect, for example, that in general conservative judges are more likely to vote in favor of business or perhaps government. Obviously this influence is related to our earlier discussion of ideological voting by judges but looks to the relationship of the judge and the party as opposed to the issue specifically. It is reasonable to suspect that judges may wish to affiliate themselves with a party who is representative of their own worldview or align with that view. In practice, however, it is not so clear.

In the united States, ideology has been called a strong predictor of party success.[2] Individuals enjoy greater success during liberal periods on the court, whereas state and local governments, typically prioritizing order over individual rights, suffer during those same periods. The federal government wins consistently, with some evidence that the success rate is higher when a conservative court is aligned with a conservative administration.[3] However, judges may be more likely to look to the ideology of the party where the appeal is not as important. Where an issue is very important policy-wise, a judge may be more likely to rely on his own ideology than that of the litigant, and vote for the party that best represents his worldview.[4]

There has been relatively little research conducted on the interaction between judges’ ideology and parties’ success rates outside of the united States. Justices on the Supreme Court of Canada have tended not to favor unions—McCormick notes that North American judges may have a normative and ideological bias against unions.[5] In Israel, the High Court of Justice appears to be a “protector of the little person,” and sides with minority causes in order to increase its legiti- macy.[6] In Australia, on the other hand, the judges’ personal views do not appear to play as significant a role in case outcomes.[7]

If we look at whether a judge votes for the appellant or the respondent (as opposed to whether the appellant or respondent wins as in Figure 7-5), we find little consistent evidence of a connection between the ideology of a judge and broad groupings of parties (government, business, associations, and individu- als).[8] In Canada, conservative judges vote in favor of the government at a much higher rate than liberal judges, whether the government was the appellant or respondent (in each case conservative judges were about 23 percent more likely to find in favor of the government than an individual appellant as opposed to about 10 percent for liberal judges).[9] Interestingly, in Canada, conservative judges also tended to favor business and association respondents over individual respondents to a greater extent than liberal judges.[10] Other than Canada, we found no other pattern of connection. Such connection may be difficult to find with broad proxies of ideology and groupings of parties. More detailed analysis is necessary to tease out any such connection that may exist.

  • [1] For example, Tabarrok and Helland write that “judges have an incentive to service theirconstituency” in states where the judiciary is elected (Alexander Tabarrok & Eric Helland,“Court Politics: The Political Economy of Tort Awards” (1999) 42 Journal of Law and Economics157 at 186). Smyth argues this home bias is not an issue in Australia. Smyth, “The ‘Haves’ andthe ‘Have Nots,’ ” supra note 24 at 271.
  • [2] Sheehan et al., “Ideology”’ supra note 2. Brace and Hall argue that ideology has only “verymodest explanatory power” in state supreme courts when examining the success rates of different parties, although they see ‘haves’ and ‘have nots’ as very crude labels: Brace & Hall,“Versus,” supra note 34 at 410. Studies of Courts of Appeals are similarly inconclusive: Songeret al., “Ahead over Time,” supra note 34 at 828.
  • [3] Sheehan et al., “Ideology”’ supra note 2.
  • [4] Andrea McAtee & Kevin T. McGuire, “Lawyers, Justices, and Issue Salience: When andHow Do Legal Arguments Affect the U.S. Supreme Court?” (2007) 41:2 Law & Society Review259 at 275.
  • [5] McCormick, Canada’s Courts, supra note 1 at 159.
  • [6] Dotan, “Resource Inequalities,” supra note 5 at 1075. Dotan also notes that a small group ofabout 10 lawyers representing the government appears almost daily before the High Court andthat they may have formed a common ideology with the judges, aligning with this ideologyperhaps even more than catering to the government. In South Africa the ideology of the Court is“significantly related to outcomes”: Haynie & Sill, “Experienced Advocates,” supra note 50 at 448(noting “liberal lower court decisions were significantly likely to be reversed, even when controlling for both the status of the litigant and the experience and success of the appellant’s advocate”).
  • [7] Smyth, “The ‘Haves’ and the ‘Have Nots” ” supra note 24 at 268.
  • [8] using data on judge votes, we used logit regressions for each country where the dependentvariable was whether the judge voted for the appellant (defined as a vote in the majority wherethe appellant won or in dissent where the appellant lost) and the independent variables werethe type of litigant (government, business, association, or individual, using individual as thedefault), party appointing the judge, the direction (liberal or conservative) of the lower courtdecision, an interaction term between each type of litigant and the party appointing the judge,area of law, and a time trend. Similar regressions were run for votes for the respondent.
  • [9] These results were significant at the .01 level. In no other country were judge votes statistically significantly different for the government than for individuals, except Australia whereconservative judges were about 6 percent less likely to vote for the government appellants thanindividual appellants.
  • [10] Conservative judges found for business respondents about 6 percent more often thanindividual respondents (significant at the .05 level) whereas there was no difference for liberal judges. They also found in favor of association respondents about 14 percent more oftenwhereas liberal judges found for association respondents about 2 percent more often (significant at the .01 level). There were no statistically significant differences for appellants. The resultsfor the other countries was mixed without a clear ideological story.
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