Judicial Roles in State High Courts

By Swanson, Rick A. | Judicature, January/February 2011 | Go to article overview

Judicial Roles in State High Courts


Swanson, Rick A., Judicature


establish statewide UNIFOMITY of law

achieve JUSTICE for litigants

achieve good public POLICY

achieve CLARITY of law

One court observer asserted that "the way in which a judge conceives his judicial role is the most significant single factor in the whole decisional process."1 Whether it is the most significant factor or not, one would expect that the roles judges perceive themselves as having would have a substantial impact on their judicial behavior.

To investigate this relationship, 78 state high court judges were asked about their judicial roles. The results indicate that these judges view themselves as having different roles that sometimes harmonize and sometimes conflict. These roles can vary depending on context, and the roles impact both the choice of cases and voting decisions. Moreover, a statistical comparison of the judges' answers across states reveals that state characteristics and institutional features can impact these roles.

Studies of appellate courts andjudges have often looked at judicial objectives related directly to the decision-making process. Specifically, how do judges perceive their role when deciding cases on the merits? This concept has been labeled in the literature as "judicial role." "[J]udicial role theory holds that judges differ in their views as to the proper functions of courts and the norms of judicial decision making."2

A distinction is often made between "judicial activism" and "judicial restraint," two endpoints of a one-dimensional spectrum. "Activists" believe it is the court's role to seek justice and/or good public policy, and thus one's personal views matter to the outcome of cases. "Restraintists," however, believe it is the court's role to defer to the policy decisions of more democratic institutions, regardless of one's personal views.3 The distinction is often characterized as activist "lawmaking" (labeled "judicial legislation" by critics) versus restraintist "interpretation" only.4

Thus, for example, an activist judge might impose his or her personal views of "justice" or "good policy" when interpreting a statute, whereas a restraintist judge would more likely follow the statute even if the judge believed the outcome is substantively unjust. In short, "for the activist, judicial conscience must be superior to legal rules, tradition, or institutional constraints. For the restraintist, adherence to rule, tradition, and precedent is essential to maintain the integrity and legitimacy of the judicial enterprise."5

Judicial philosophy is not equivalent to political ideology. There is no necessary logical connection between judicial roles and political ideology, as one might favor either activism or restraint regardless of one's ideology. "Judicial role theory views judicial role orientations as intervening variables, not as direct determinants of judicial behavior."6 Thus, it is the interaction between role and ideology that influences judicial behavior, with role mediating ideology.

For example, in a study of judges on one state's court of appeals, liberal restraintists were statistically indistinguishable from conservative restraintists in reversing criminal convictions and sentences on appeal, yet liberal activists reversed criminal convictions and sentences at a much higher rate than conservative activists.7 In another study of state high court judges, conservative activists were more likely to vote to uphold criminal convictions and sentences than were conservative restraintists.8 In short, judicial roles concretely impact judicial voting behavior.

Scholars have studied judges' roles on foreign courts,9 state trial courts,10 and federal appellate courts." The few studies of roles on state high courts, however, have looked at only three12 or four13 courts, or merely examined the degree of the judges' activism versus restraint, without letting judges rank roles or explain those rankings.14 Moreover, no study has statistically analyzed how institutional features or state characteristics influence the choice of roles. …

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