Do Judges Follow the Law When There Is No Fear of Reversal?

By Songer, Donald R.; Ginn, Martha Humphries et al. | Justice System Journal, January 1, 2003 | Go to article overview

Do Judges Follow the Law When There Is No Fear of Reversal?


Songer, Donald R., Ginn, Martha Humphries, Sarver, Tammy A., Justice System Journal


Some political scientists maintain that Supreme Court justices are more likely than other appellate court judges to vote their ideological preferences. It is argued that Supreme Court justices may vote their preferences without constraint from precedent because of a lack of electoral or political accountability, absence of ambition for higher office, and status as a member of a court of last resort that controls its own docket. While this explanation of attitudinal voting is widely accepted, it has never been tested. As a first test of the asserted institutional foundations of attitudinal voting, the voting of United States Courts of Appeals judges in tort diversity cases is examined. In such cases, appeals court judges benefit from all of the institutional features thought to advance attitudinal voting, except complete docket control. Despite these benefits, the votes of the appeals court judges appear to be highly constrained by law and precedent.

From the first day of law school, judges are typically socialized to believe that "law matters" and that the job of a judge is to apply the relevant statutes, precedents, and canons of legal interpretation to achieve legally correct decisions. Both the writing of judges on the bench and interviews with scholars suggest that most judges have strongly internalized this respect for the law. As Judge Newman expressed it, "The ordinary business of judges is to apply the law as they understand it to reach results with which they do not necessarily agree" (1984:204). These views of Judge Newman are seconded by several more formal surveys of appeals court judges. For example, all but two of the thirty-four appeals court judges interviewed by Howard said that when precendent was "clear and relevant" it would be a very important, influential factor in their decision making (1981:164). More recently, fifteen of the twenty-two judges interviewed by David Klein (2002:21) viewed making "legally correct" decisions as very important, and all the rest viewed it as an important goal. In sum, most appeals court judges appear to agree that "while conscientious and competent judges may disagree, the rigors of dealing honestly with facts, of recognizing and respectably treating precedent, and of reasoning logically, reduce the occasions for differences" that may be the result of differences among judges in their political values (Coffin, 1980:57-58).

However, many political scientists think that at least on the Supreme Court, the state of the law has little impact on the way the justices decide their cases. This view of decision making, often labelled the "Attitudinal Model," holds that justices make legal decisions based on their own "ideological attitudes and values" (Segal and Spaeth, 1993:73) without the constraints of law and precedent. Notwithstanding recent controversy, the Attitudinal Model is now the dominant paradigm among scholars who engage in empirical research on the Supreme Court (Baum, 1997:22).

In stark contrast, studies of other American appellate courts suggest that below the Supreme Court, judicial attitudes matter, but the expression of these ideological preferences is constrained by the law, as well as institutional and political contexts. Richardson and Vines (1970) argued that the decisions of federal district and appeals court judges were best conceptualized as the resultant of the conflicting demands placed upon the judges by the legal and the democratic subcultures. Subsequently, a large number of studies, including analyses of cases involving libel (Gruhl, 1980), patents (Baum, 1980), economic policy (Stidham and Carp, 1982), labor and antitrust (Songer, 1987), obscenity cases (Songer and Haire, 1992), search and seizure (Songer, Segal, and Cameron, 1994), job discrimination (Songer, Davis, and Haire, 1994), and review of agency decisions (Humphries and Songer, 1999), reached similar conclusions about the joint influence of law and attitudinal preferences on the decisions of lower federal court judges. …

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