What We Talk about When We Talk about Ideology: Judicial Politics Scholarship and Naive Legal Realism

Article excerpt


A large and growing body of law and psychology scholarship has posed new challenges to traditional assumptions about the behavior of legal actors. While mainstream legal thought has often treated individuals as more or less rational, autonomous actors,1 scholars in a variety of fields are presenting a new, empirically based, and more formal challenge to law's traditional conceptions of human behavior. For example, the behavioral law and economics movement has incorporated empirical findings of systematic deviations from economically rational behavior,2 and has suggested how taking account of these deviations might alter our conceptions of legal actors.3 Situationists have looked to the ways that individuals often fail to appreciate situational influences on their own behavior and have argued for the incorporation of their findings into the law.4 Similarly, behavioral realists have called for legal analysis grounded in the findings of social science5 and have given special attention to the ways in which implicit bias might affect how we approach antidiscrimination policy.6 In these fields and others, law and psychology is challenging the traditional conceptions of human behavior that permeate much of the law and legal scholarship.7

One area with especially great potential is the use of psychology to improve our understanding of one of the more persistent questions of legal theory: How do judges decide cases?8 Since the legal realists posed this question, legal scholars have searched for the determinants of judicial behavior. Only a few scholars have looked to modern psychology to understand judicial behavior better.9 Perhaps most notably, Chris Guthrie, Jeffrey J. Rachlinski, and Andrew J. Wistrich have approached judging from a behavioral law and economics perspective. They have investigated the extent to which judges are subject to cognitive biases10 and have developed their findings into a general psychological theory of judicial decisionmaking.11 In another line of research, Dan Simon has developed his own cognitive theory of judicial decisionmaking.12

Another school of thought on judicial behavior has made recent inroads into legal scholarship. For over fifty years, political scientists studying courts have endeavored to uncover the determinants of judicial decisions empirically. Commonly known as "judicial politics,"13 this body of research has hypothesized that a judge's "ideology" is a significant determinant of that judge's decisions,14 and judicial politics scholarship claims to have found substantial evidence supporting this hypothesis. Judicial politics thus presents another possible explanation for judicial behavior: Judges decide the outcome of a case in a way that accords with their "ideology." In the past decade, judicial politics has gained increasing attention in legal scholarship.15 And while a few legal scholars outside of judicial politics have suggested that it should inform a variety of areas of legal thought,16 judicial politics, as a field of study, has been embraced by a few,17 regarded as unremarkable or obvious by some,18 and rejected by others.

I suspect that this reception is due, at least in part, to the unclear import of judicial politics scholarship. That is, judicial politics scholarship has been woefully inadequate in defining what precisely it means by "ideology." In some senses, then, it is quite difficult to disagree with the conclusions of judicial politics scholarship. Because judicial politics scholarship rarely defines what exactly it means by ideology, its conclusions of ideological decisionmaking can have very little content. Most legal scholars could agree that judging is in some way "ideological," so long as they could provide their own definition for "ideology." And despite judicial politics scholars sometimes claiming otherwise,19 mainstream legal thought has more or less rejected the formalist conception of judging that judicial politics sets out to refute. …