Peering Behind the Velvet Curtain: Lessons from a Year Inside the Federal Courts

Article excerpt

As Chief Justice John Roberts convened the September 2006 meeting of the Judicial Conference of the United States, I took a seat against the wall. The Chief Justice began his remarks by welcoming the distinguished body for its day of deliberations and thanking those who had arranged the meeting. But as discussions followed, my mind was suddenly ambushed by the lyrics to the Talking Heads' song, "Once in Lifetime." An apt metaphor for the day, the song intones, "And you may ask yourself, well, how did I get here?"

I got there as a United States Supreme Court Fellow for the 2006-07 term. Established in 1973, the fellows program brings four mid-career professionals to Washington D. C. for a year of service to the federal courts. Fellows are assigned to the U.S. Sentencing Commission, the Administrative Office of the Courts, the Administrative Assistant to the Chief Justice, or, as in my case, the Federal Judicial Center.

It was an amazing year that allowed me to step behind the velvet curtain to meet and observe judges; to talk with U.S. and foreign jurists about the process of judging; to conduct research for and about the federal courts; and to learn firsthand howjudicial policy is made and administered at the federal level. As an academician, the year also allowed me to weigh the theories I had learned about judges and judging against the experience of watching judges "in action" as well as talking to many of them, candidly and informally, about what they do.

Against this backdrop I have returned to academe - or, more accurately, to span the gap between scholarship and evaluative research about the courts - with a better appreciation of where we in academe have "gotten it right" in explaining the courts, as well as where we have more to learn and new fields to plow in describing and predicting judicial decision making. Although I do not claim to have "figured out" the courts or judicial behavior, the year has left me with new understandings of the connection between academic theorizing and the actual practice of judging and court administration. This essay addresses that nexus, offering three observations that may allow academic researchers and jurists to cooperate better to improve our understanding of the courts and advance judging.

I should say at the outset that I do not speak for anyone in the federal judiciary, and, in fact, I am sure there are some within the federal courts who will disagree with me. Unlike certain "tell all" books about the courts,1 I am not violating confidences or divulging sensitive information obtained from my year as a fellow. In a few instances I quote conversations with judges, but the details are sufficiently vague to mask the judges' identities. I did not go into the year with the intention of chronicling my experiences, nor did I keep a journal. Rather, this essay flows from several months of reflection following an extraordinary year of learning.

Lesson one: Although the courts may be reluctant to embrace academic explanations for judicial decision making, their informal behavior confirms at least some of the findings.

It is now established in political science that judicial decision making is motivated by a variety of factors besides precedent. To be sure, few would reasonably claim that the "legal model" of judging is irrelevant - that judges willfully and regularly ignore precedent - but a wide swath of scholarship has shown judges to be motivated by their personal preferences or attributes,2 by desires to influence and get along with their peers,3 and by concerns of public legitimacy,4 among others.

The federal judiciary presumes as well that individual judges may reach different results on similar questions; indeed, this is the very basis of appellate review and circuit splits. But, at the same time, the institution insists upon a public face of neutrality, rejecting the notion that these decisions could be based on anything other than reasonable and serious approaches to precedent. …