Lawrence Baum Department of Political Science Ohio State University
Motivation and Judicial Behavior:
Expanding the Scope of Inquiry
Lawrence Baum
Department of Political Science
Ohio State University
Prepared for the Workshop on Exploring the Judicial Mind, University of Virginia,
March 30-31, 2007.
Among political scientists who study the courts, explanation of judicial behavior is the issue that receives the most attention. That issue is also a major concern in legal scholarship. Of course, judicial behavior takes many forms and occurs in many settings.
The aspect of judicial behavior on which scholars typically concentrate is the decisions that appellate courts (and especially the Supreme Court) reach on the merits of the cases they consider. In political science, those decisions are analyzed primarily in terms of the votes on case outcomes that individual judges cast, votes that are generally defined in ideological terms. For the most part, theory and research focus on appellate courts and
Scholars who seek to explain judicial behavior have adopted several models of that behavior. In the Appendix to this paper I present an overview of those models for readers who are unfamiliar with this body of scholarship. The most important characteristic of the leading models is their shared emphasis on judges’ interest in making good legal policy--whether as good law, good policy, or a combination of the two. In the past decade there has been growing interest in strategic action by judges to advance their conceptions of good legal policy. That development has made strategic models the closest thing to a conventional wisdom in political science scholarship on judging.
The study of judicial behavior in political science and legal scholarship has accomplished a great deal, and in some important respects the contributions of that scholarship are accelerating. However, the reach of that scholarship has been limited,
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This is a significant limitation in the scope of judicial behavior research. Arguably, the contexts in which trial and appellate judges make their choices differ so much that the two types of courts should be analyzed separately. Rowland and Carp (1996, chs. 6-7) point out the differences in cognitive terms between the decisional tasks of trial and appellate judges.
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and the dominant theoretical models do not address some fundamental questions about judicial behavior.
Explicitly and implicitly, students of judicial behavior draw primarily from economic perspectives on human behavior. The emphasis on economics is reflected in the current popularity of models in which judges act strategically. Psychological perspectives have played a more limited role in judicial research, and within political
science that role has declined over time.
Further, the field of behavioral economics,
which incorporates psychological perspectives into economic models (Thaler 1991,
2000), has not yet had much impact on the study of courts. Rather, students of judicial behavior draw from orthodox economic theory, in which individuals take the actions that maximize their achievement of conscious goals.
My view is that psychological perspectives can do much to overcome the current limitations to the body of theory on judicial behavior. This paper presents some very tentative thoughts about how those perspectives can strengthen our understanding of the motivational element in judges’ choices as decision makers. Necessarily, the discussion in this paper covers only a small portion of the concepts and approaches in the psychological scholarship that can inform our understanding of judging.
There are some difficulties in adapting the insights of social psychology to the study of judicial behavior. Research is social psychology concentrates on ordinary people who are engaged in ordinary behavior, and the insights of that research do not
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The use of psychological theory in research on judicial behavior is discussed in Baum (1997, 135-141).
In the decade since that time, psychologists, legal scholars, and political scientists have made additional use of theories in psychology to understand judicial behavior (e.g., Gruenfeld and Preston 2000; Guthrie,
Rachlinski, and Wistrich 2001). Wrightsman (2006) has surveyed issues in Supreme Court decision making from a psychological perspective, identifying a variety of ways that psychological theory can inform our understanding of judicial behavior. During the same period, however, economic theory has received considerably greater use within law and political science.
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always apply well to judges and judicial decision making. Research in political psychology gives primary attention to the mass public rather than government decision makers, and the work on government decision makers is primarily concerned with officials in the executive branch and with foreign policy decisions (see Sears, Huddy, and
Jervis 2003). For this reason I think there is a need for some caution in applying existing psychological theory to judicial decision making, and my discussions of various issues in this paper are intended to be cautious.
The Place of Motivation in the Scholarship on Judicial Behavior
Certainly the issue of motivation is central to an understanding of judicial behavior. Indeed, scholars in law and political science have approached judges’ choices primarily in terms of their motivations. As much as scholars have said about judicial motivation, however, their consideration of motivation has been limited in its scope and depth.
Most fundamentally, the focus has been on judges’ proximate goals rather than on basic motives.
That focus sets aside a key question: if judges devote themselves to
making good legal policy, what motives impel them to do so? That question is especially salient because good legal policy has no clear connection with judges’ self-interest, so that it is an unusual focus for economic models of behavior (see Schauer 2000, 620-621).
Some scholars address this question by trying to show that other plausible goals are irrelevant to the work of federal judges, especially Supreme Court justices (Epstein
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This is especially true of political scientists. Some economists and legal scholars with an economic perspective have looked more deeply (and more broadly) at judges’ motivations. Their inventories of judicial motives are generally common-sense rather than drawing from psychological scholarship.
Examples include Anderson, Shughart, and Tollison (1989); Posner (1995, ch. 3); Drahozal (1998);
Georgakopoulos (2000); and Bainbridge and Gulati (2002).
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and Knight 1998, 36-49; Segal and Spaeth 2002, 92-96). That answer has some validity, but it is not entirely satisfying. For one thing, the scholars who offer it consider only a limited range of plausible goals. And there remains a need to show what basic motives of judges are satisfied through efforts to make good policy. As yet, scholars have not given us persuasive reasons to accept the assumption that judges as decision makers care primarily or solely about the content of legal policy.
A second characteristic of the judicial behavior scholarship is that it leaves only limited room for variation in the goal orientations that judges bring to their decisionmaking tasks. Scholars have given some emphasis to variation across courts based on their institutional characteristics. For example, they point out that supreme court justices in most states must concern themselves with maintaining their tenure, while U.S.
Supreme Court justices lack that concern and seldom harbor ambition for other positions.
However, there has been less attention to potential variation in judges’ motives across different types of cases or aspects of their work. Some scholars have posited that cases differ in their salience to judges and have probed the possible effects of these differences on decision making (Epstein and Segal 2000; Langer 2002; Unah and Hancock 2006;
Bartels 2006). But in most research, judges are assumed to bring the same goals to all of their cases and to every part of their work.
More important, judicial scholars largely rule out variation in motivational profiles among judges. Judges are expected to differ in their choices based on their policy preferences and, in some work, their approach to interpretation of the law. But with occasional and partial exceptions (Pritchett 1954, ch. 11; Spaeth and Segal 1999,
290-301), judges on the same court are assumed to be homogeneous in their motivations
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and thus in the bases for their votes and opinions. In models of policy-oriented Supreme
Court justices, all the justices share a devotion to making good policy. The possibility of significant interpersonal variation in judges’ goal orientations is generally set aside.
Finally, judicial behavior research generally ignores the connections between motivation and cognition (Braman 2004, 15-18). This is especially true of research by political scientists. Most notably, models of strategic behavior by judges seldom give attention to the cognitive demands placed on judges who seek to identify optimal strategies; rather, they simply assume that judges will make the optimal choices. A few political scientists have referred to motivated reasoning as a source of preference-based decision making (e.g., Segal and Spaeth 2002, 433). Eileen Braman (2004) has carefully analyzed judicial choice as motivated reasoning, and Rowland and Carp (1996, ch. 7) have laid out an insightful cognitive approach to decision making by federal district judges. Legal scholars and judges themselves have been more attentive to the cognitive issues in judging, and Guthrie, Rachlinski, and Wistrich (2001) examined a set of cognitive issues closely. The scholarship that takes a cognitive perspective underlines the limitations of a body of research that typically leaves cognition aside.
Thus, despite its emphasis on judges’ goals, scholarship on judicial behavior has not been entirely satisfactory in its handling of motivation. In the sections that follow, I will consider ways to address the three limitations discussed here through the perspectives of social psychology.
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Goals and Motives
Students of judicial behavior may be correct in asserting that appellate judges act overwhelmingly or solely to advance their conceptions of good legal policy.
Alternatively, other goals such as limiting workloads (or, as economists like to put it, leisure) may be important to judges’ choices. But whatever may be the case, the goals that judges seek to further must be based on more basic motives or needs. Identification of relevant motives can help both in assessing the prevailing view of judges’ goal orientations and in adjudicating disagreements among adherents to that view.
Scholarship in social psychology has put forward several inventories of basic motives (e.g., Beck 2000, ch. 12; Fiske 2003; Reeve 2005, ch. 5). These inventories are not necessarily well suited to the analysis of choices by government officials, but they provide starting points in thinking about motives in relation to goals.
Of the various inventories, David Winter’s (2002, 2003) typology of motives is especially relevant because it was developed to analyze political leaders.
conception, leaders act on their needs for achievement, power, and affiliation. His empirical research, based on analysis of leaders’ verbal outputs, has found considerable variation within groups such as U.S. presidents in the relative importance of these motives. Winter and others have also found correlations between leaders’ motivational profiles and measures of their behavior and success.
Jilda Aliotta (1988) applied Winter’s scheme to Supreme Court justices. Aliotta scored justices’ motives on the basis of their testimony during Senate confirmation
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Another typology, developed specifically for analysis of politicians, is Payne and Woshinsky’s (1972) categorization of motives for participation in politics. Caldeira (1977) and Sarat (1977) each used this typology in studies of trial judges, identifying their dominant motives and relating those motives to elements of the judges’ behavior.
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hearings. She then demonstrated a relationship between this measure of incentives and two aspects of the justices’ behavior, opinion writing and votes for non-majority opinions. Her findings are striking. Unfortunately, no similar studies of the Supreme
Court or of other courts have been done.
Aliotta’s research suggests the value of taking Winter’s typology as a starting point. I think it makes sense to treat the desire for prestige as a separate category rather than treating it as an element of power motivation. The resulting four categories-achievement, power, prestige, and affiliation--can be applied to issues concerning the proximate goals of appellate judges.
1. . No scholar seriously argues that judges act only on the goal of interpreting the law well. Among those who think that judges are devoted to making good legal policy, the question is whether they define that goal solely in terms of policy or whether good law is also important to judges.
Scholars who support policy-only models treat their position as more realistic than the alternative. The motivational basis for that position merits consideration.
Judges might pursue achievement or prestige by making what they define as good policy, but they might also do so by committing themselves to accurate interpretation of the law.
Trained in a legal tradition and oriented largely to legal audiences, judges would seem to have strong incentives to pursue good legal interpretation. Indeed, carrying out the task of judging effectively in legal terms may provide an intrinsic pleasure that can be gained in no other way (Posner 1995, 129-134).
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The distinction between intrinsic and extrinsic motivation (Kruglanski 1975), which I do not discuss in this paper, may be useful for understanding the motives of appellate judges, especially in the federal courts.
Because those judges are insulated from some extrinsic rewards and punishments that are important in most
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It may be that commitment to good policy is more effective in providing judges with a self-perception of very high achievement or prestige (see Posner 1990), but this is not necessarily the case. Power is a more promising basis for policy-only models, because the judge who actively seeks to make policy is more likely to attain a feeling of power than is the judge who seeks only to get the law right. But this difference does not seem sufficient to give policy considerations something like total dominance over legal considerations in judicial decision making.
These are only first musings on a complicated issue. However, there is reason for skepticism about the assumption that appellate judges seek to advance good policy to the exclusion of good law. Theoretical issues aside, proponents of policy-only models point to empirical evidence that (as they interpret it) establishes that policy considerations are the driving force behind judges’ choices, especially those of Supreme Court justices (e.g.,
Segal and Spaeth 2002). If they are entirely or at least mostly right, the answer is more likely to come from the interplay of motivation and cognition than from motivation alone.
2. . The policy-oriented judges of early political science models simply chose the alternative in each case that best fit their conceptions of good policy. Those judges have largely been supplanted by judges who think strategically about how to achieve good policy. Strategic judges will depart from their most preferred policy position when doing so advances their efforts to secure good policy in their court’s collective decision or in the policy-making system as a whole.
The growing popularity of strategic models reflects a belief that policy-minded justices must be strategic. If a judge has a policy position, why would the judge not do occupations, their sources of intrinsic rewards are quite important to their choices (see Shah and Kruglanski
2000).
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everything to bring public policy closer to that position? But unlike many other contexts, strategic judges gain nothing concrete by moving policy closer to their positions, just the satisfaction of accomplishing that result. Policy-minded judges might get more satisfaction simply by taking positions in cases that fully accord with their conceptions of good policy, regardless of the broader effects of their choices. That path has the additional advantage that it requires considerably less effort to follow. Strategic judges also have the disadvantage that judges typically have only a limited impact on public policy, so they frequently will be disappointed with the results of their efforts.
Almost surely, the relative attractiveness of these two paths will be shaped by a judge’s basic motives. Most important, a judge with a strong need for power has an incentive to act strategically that other judges lack. It is doubtful that any judge is fully strategic, just as it is doubtful that any judge eschews strategy altogether. But judges’ commitments to strategy are likely to differ considerably, and that variation may stem primarily from differences in their motivational profiles.
3. . Howard Gillman (2001a, 7) has distinguished between
“high” and “low” politics in judicial decisions. High politics refers to judges who act on their policy preferences; low politics refers to judges who act on their partisan preferences. Even high politics arouses disapproval from those who think that judges should rule only on the basis of the law, but low politics is more widely considered illegitimate.
There is considerable evidence of low politics in state courts. At least a large share of the motivation for judges to favor their own political party lies outside Winters’s framework, in that it reflects judges’ interest in re-election. More interesting is the
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evidence of partisan behavior among federal judges, manifested most clearly in the decisions of district judges in disputes over legislative districting (Lloyd 1995; McKenzie
2004). Perhaps district judges too are influenced by career considerations, their interest in promotion, but that interest probably cannot account fully for the appearance of “low politics” in federal courts. Supreme Court justices engage in some partisan behavior as well, the most famous example being Bush v. Gore
and they are seldom interested in
other positions.
The affiliation motive may help to explain this behavior. Judges at all levels are likely to have significant ties with formal or informal groups that are partisan in their orientation. Maintenance of these ties is facilitated by decisions that favor the interests of a judge’s party where those interests are implicated in cases. For judges who have strong affiliation needs--presumably, the great majority of judges--this can be an important, if subconscious, consideration (see Baum 2006, 126-128). Thus Gillman’s low politics, while less ubiquitous than high politics, is probably inevitable.
4. . The most fundamental issue raised by the standard models of judicial behavior concerns their shared emphasis on good legal policy as a goal. From one perspective, as suggested earlier, that assumption seems highly questionable. Why would judges devote themselves solely to goals that are disconnected from their self-interest?
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Bush v. Gore involved the same split as a census case that the Court decided in 1999 ( Department of
Commerce v. U.S. House of Representatives ); in both cases, the Court’s five most conservative members opposed the four most liberal members, even though ideological considerations were irrelevant
( Department of Commerce ) or seemed to run counter to the justices’ positions ( Bush ). The 5-4 split was not fully partisan, in that Justice Stevens and Justice Souter were both Republican appointees, but it seemed to reflect the nine justices’ “rooting interests” between the parties.
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From the vantage point of the modified Winter typology of motives, the assumption makes more sense. Judges might pursue what they conceive as good law or good policy in order to foster a self-perception of prestige, achievement, and power. At least for judges whose situations reduce the relevance of more mundane concerns such as continued tenure, those motives could impel them to focus on the content of legal policy.
Mundane concerns are least relevant for members of the Supreme Court.
Yet these motives do not necessarily lead judges to pursue good law or good policy. Their prestige depends on how other people assess their work, and that audience may not share the judge’s conception of good legal policy. Power may be pursued most effectively by departing from one’s own preferences, a reality that is supported by the record of presidential behavior. Of course, judges’ needs for affiliation may also draw them toward the positions held by other people who are important to them. For this reason the motivational basis for the assumption that judges devote themselves to good legal policy remains uncertain.
Variation in Goals and Motives
As I have noted, the scholarship on judicial behavior typically leaves aside the possibility of individual variation in motivational profiles and takes into account only one sources of situational variation in motives, the one that is based on institutional characteristics of courts. Research in social psychology offers some support to the idea that the institutional situations in which policy makers find themselves play a powerful role in structuring their behavior. One likely effect is to reduce interpersonal differences in goal orientations among people in the same situations (Ross and Nisbett 1991). Still,
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there would seem to be considerable room for variation in the motives that drive judges’ choices based on individual attributes and decision-making situations within a court.
Variation Among Individuals
The anecdotal evidence of differences in style among judges on the same court is enormous in volume. Even a moderately attentive observer of the Supreme Court can easily identify variation in the style of the justices’ opinions and of their participation in oral argument. Journalistic and scholarly accounts of the Court point to differences in the ways that the justices approach the tasks of individual and collective decision making.
Because appellate judges work in a collective body, their patterns of behavior may differ less than those of trial judges who work alone, but the differences are still striking.
These differences do not necessarily stem from variation in judges’ motives, but the existence of such variation seems inevitable. In motivational terms, judges could be expected to differ in multiple ways. First, among judges with the same mix of motives those motives can translate into different goals. Prestige is an example. Supreme Court justices could seek prestige by taking policy positions that accord with the values of groups that share those positions. Alternatively, they could demonstrate their skills in the legal craft and thus appeal to people in the legal community who appreciate those skills.
Similarly, even policy-minded judges can differ in how they gain a sense of achievement: by directly supporting what they see as desirable positions or by acting strategically to advance those positions in the long run.
Second, judges’ motivational profiles themselves may vary. The evidence of motivational differences among presidents (Winter 2002), legislators (Barber 1965), and
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trial judges (Caldeira 1977; Sarat 1977) is compelling. If appellate judges are homogeneous in their mixes of motives, they are most unusual. Indeed, a perusal of
Supreme Court biographies makes it difficult to accept the proposition that justices all seek the same ends. William O. Douglas sat on the same court as Lewis Powell, but the two justices appeared to be seeking quite different things from their work (Simon 1980;
Jeffries 1994). Recent biographies of Harry Blackmun and Sandra Day O’Connor point to less dramatic but substantial differences between the two long-term colleagues on the
Court (Greenhouse 2005; Biskupic 2005).
I have already suggested some ways in which differences in motives can affect judicial behavior. The linkage between power and strategy is especially clear. It is true that the structure and norms of appellate decision making encourage every judge to work at winning colleagues over. But those judges for whom power is especially important will devote more effort to that task. Strategy aimed at influencing policy outside a judge’s own court is optional, and judges’ relative interest in power can be expected to produce sharp differences in their commitments to this type of strategy.
One potential benefit of taking interpersonal variation in goals and motives into account is that it provides a useful perspective on the recruitment process for judges. In law and political science, scholars appropriately have emphasized how the recruitment process determines the mix of policy preferences among judges. But recruitment also determines the mix of motives among judges. The perceived benefits and drawbacks of judgeships determine what kinds of people are interested in judicial positions, and the criteria used by the selectors of judges determine the kinds of people who actually attain judgeships. Both the supply and demand sides of the recruitment process will shape the
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motivational profiles of courts. As presidents shifted from choosing a mix of practicing lawyers and public officials as Supreme Court nominees to drawing their nominees from sitting judges, they likely produced at least a marginal change in the collective motivational profile of the Court (see Baum 2006, 67-69).
The third way in which judges could differ is in a different element of motivation, the extent of the effort they devote to their work. Social psychologists treat motivation as two-dimensional: it “energizes behavior and sends the organism in a particular direction...” (Pittman 1998, 549; see Chen and Chaiken 1999, 76). This dimension has not received much attention in the study of judicial behavior. Some legal scholars, including several who take an economic perspective on the courts, posit that judges have a preference for leisure (e.g., Posner 1995, 123-126; Bainbridge and Gulati 2002), thereby raising the possibility of variation in effort. But students of judicial behavior in political science ignore this possibility. Their implicit assumption may be that the incentives of appellate judges are sufficient to produce a universally strong commitment to their work.
On this dimension as well, there is considerable evidence of interpersonal variation within other government institutions such as Congress (Hall 1996) and state legislatures (Barber 1965). Reports of variation in the amount of time that trial judges spend on the job are a staple of local newspapers. And there is a good deal of anecdotal evidence about differences in effort among Supreme Court justices, such as the limited attention that Justice Douglas sometimes devoted to his Court work (Murphy 2003).
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Differences in recruitment patterns across courts can also affect motivational profiles. State appellate courts whose members must face the voters periodically and federal courts whose members enjoy life tenure may well attract people with different orientations. The relative attractiveness of various courts can make a difference for the same reason.
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The scholarship on judicial behavior has given us a clear picture of decision making by judges who are fully devoted to their work. These judges devote the maximum effort to get decisions right, however they may define “right”. They carefully analyze cases to determine their legal merits or to understand the relationship between the facts of a case and their own policy preferences. If identifying the optimal strategy for a decision requires enormous effort, they will take that effort.
The less committed judge presents an intriguing contrast with that picture. Judges who want to minimize their efforts could defer strongly to colleagues and delegate heavily to law clerks. In their own decision making, they could simplify their criteria for choice and rely heavily on heuristics as bases for their positions. For instance, such judges might gravitate toward ideologically consistent voting because the ideological positions of the two sides in a case provide a ready heuristic for decision (see Rowland and Carp 1996, 167-168). Further, they would be inclined to eschew the forms of strategy that require the most time to calculate. In light of the reality that some judges do limit the effort they give to their jobs, these possibilities merit consideration.
Variation Across Situations
Appellate judges face multiple tasks in the decision-making process. Supreme
Court justices, for instance, select cases to hear on the merits, cast votes on the merits of those cases, write opinions, and determine whether to join the opinions written by other justices. It seems certain that different tasks evoke different cognitive processes, even if judges undertake their various tasks with the same goal orientations.
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More intriguing is the impact of case salience. As noted earlier, students of judicial behavior have given some attention to the potential impact of differences between cases that are highly salient to judges and those that are less salient to them. Of this work, the most fully developed is the studies by Brandon Bartels (2005, 2006).
Working from scholarship in social psychology, Bartels posited that the impact of
Supreme Court justices’ policy preferences on their decisional choices varies among cases based on the strength of the justices’ attitudes and the degree of accountability they perceive. His empirical study found considerable evidence for the impact of these factors.
The Supreme Court and most state supreme courts have discretionary jurisdiction.
Their ability to choose cases to hear on the merits certainly does not eliminate variation in case salience, but it reduces that variation: cases that the justices see as very unimportant will not be accepted for full consideration. Intermediate courts of appeals do not have discretionary jurisdiction. As a result, they decide cases that differ far more widely in this respect. Indeed, many intermediate courts explicitly differentiate between two classes of cases, with a central staff of law clerks selecting what appear to be “easy” cases and making tentative decisions in those cases before forwarding them to panels of judges (Chapper and Hanson 1990, 15-22; Symposium 2002).
If the cases that judges decide vary in salience, dual-process theories of judgment may be useful for analysis of decision making (Chaiken and Trope 1999). These theories have been developed and used in contexts that are quite different from the task of decision making in government, and they do not necessarily apply well to judicial behavior. However, it seems reasonable to think that judges differentiate among cases in
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their importance and that this differentiation affects the levels of effort they devote to decision making. Put another way, judges surely make a greater commitment to getting some decisions right than they do to others. It is quite possible, for instance, that they find it worthwhile to make careful strategic calculations in cases whose ultimate outcome is important to them but not in other cases. Almost surely, an analogous difference exists in the attention that judges who lack life terms give to the potential effects of their choices on their job security (see Langer 2002).
The extent to which judges decide different cases in different ways is quite uncertain at this point. And at least in courts with discretionary jurisdiction, the dichotomy that is emphasized in dual-process theories probably oversimplifies what is actually a continuum. But there is good reason to posit that cases differ in the effort that judges devote to deciding them.
More broadly, it seems quite likely that individual and situational differences exist in both dimensions of motivation--how much judges care about the outcome and what they seek to further through their decisions. These possibilities merit empirical study.
Motivation and Cognition
I have already referred to some connections between motivation and cognition.
Social psychologists hardly need to be convinced of the value of analyzing motivation within cognitive frameworks, but it is worth emphasizing that value as it relates to the study of judicial behavior. For one thing, the use of cognitive frameworks provides a counterpoint to approaches that do not take cognition into account. Judging is a cognitive process, and only so much can be learned about judging without considering that process.
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Thus the general absence of concern with cognition in the dominant models of judicial behavior today is a fundamental limitation to those models. This is especially true of strategic models that assume heroic analytic efforts by judges. The most notable examples are models in which Supreme Court justices make intricate calculations to estimate the likely congressional response to prospective Court decisions (see Bergara,
Richman, and Spiller 2003). Scholars have not yet begun to consider how judges might deal with the difficulties involved in identifying optimal strategic choices.
Of the frameworks and theories that psychologists have developed for the study of cognition, the concept of motivated reasoning has the clearest relevance to the interests of political scientists in judicial behavior. The accuracy and directional goals that Kunda
(1990) and others (e.g., Baumeister and Newman 1994; Lodge and Taber 2000) describe map well onto legal and policy goals. Braman (2004) demonstrates the insights that can be gained from this framework while noting some problems in its application to judicial decision making (see also Braman and Nelson forthcoming). The concept of motivated reasoning provides a way to reconcile the evidence that judges’ policy preferences powerfully shape their choices with judges’ own protestations that they simply follow the law. It also highlights variation among cases in the balance between legal and policy considerations: the more that the law supports one side in a case, the more difficult it is for judges to reason their way to decisions that favor the other side.
Use of the concept of motivated reasoning assumes that judges have a real commitment to interpreting the law well. It might be that some judges are so committed to certain policies that accuracy and directional goals effectively merge: achieving good
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policy serves both ends, and law is left aside. But if some judges do think about their choices in that way, they would seem to be exceptional.
Shelly Chaiken and her collaborators have developed what they call the heuristicsystematic model of information processing (Chaiken, Liberman, and Eagly 1989;
Chaiken, Giner-Sorolla, and Chen 1996; Chen and Chaiken 1999). This model is attractive because it shares the insights of the motivated reasoning framework while adding three useful features. First, it points more directly to the motives that may underlie directional goals. Chaiken, Giner-Sorolla, and Chen (1996, 557) treat directional goals as a consequence of “defense motivation,” “the desire to hold attitudes and beliefs that are congruent with existing self-definitional attitudes and beliefs.”
This conception of motives requires some adaptation when the object of inquiry is behavior such as judicial votes and opinions rather than attitudes and beliefs. But in itself, the conception captures what surely is central to the ideologically consistent behavior that students of judicial decision making have identified and emphasized.
Judges gain satisfaction from taking positions that accord with their beliefs about justice and the public good. Put differently, judges act in ways that maintain and strengthen their identities.
The second contribution of the heuristic-systematic model is that it encompasses a third motive, “impression motivation.” “Impression-motivated individuals express judgments that are called for by the social situations in which they find themselves”
(Chaiken, Giner-Sorolla, and Chen 1996, 563). This motivation might be subsumed under the accuracy and directional categories, in that judges and other people may pursue those two goals on the basis of social motives. Efforts to interpret the law accurately, for
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instance, are linked with the desire to be viewed as a good judge within the legal community. But social motives can lead people to make choices that diverge from both their conceptions of accuracy and their own directional preferences,
impression management from the other motives appropriately expands the scope of inquiry.
Judges may engage in impression management for instrumental reasons. The most obvious example is judges’ interest in retaining their positions. That example also illustrates the point that social motives may lead in a different direction from both accuracy and defense motivation. State supreme court justices whose reading of the law and policy preferences both would lead them to overturn a death sentence might uphold the sentence because of electoral considerations.
Students of judicial behavior typically assume that only instrumental (though not conventionally self-interested) considerations motivate impression management. Yet it should be self-evident that judges seek the regard of other people for its own sake, especially where that regard is important to their own identities.
conception of defense motivation in the heuristic-systematic model, this component of the model emphasizes the importance of individual identities to judges’ choices. In turn, it helps to broaden inquiry beyond the exclusive or near-exclusive concern with legal policy that the dominant models of judicial behavior assume.
The final contribution of this model is that, as its label indicates, it is a dualprocess theory. As such, it incorporates the dimension of motivation that concerns the
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Judges’ directional goals in the motivated reasoning framework could result from a variety of considerations. But the ways that Kunda and others describe directional goals relate most clearly to policy
9 preferences as their source.
I have developed this argument in Baum (2006). Concern with reputation as a judicial motive is discussed in Miceli and Cosgel (1994) and Schauer (2000).
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level of effort devoted to decision making. For reasons described earlier, I think that feature is desirable. The cognitive effort devoted to reaching a judgment may differ across both judges and cases, and taking this variation into account will provide a more comprehensive picture of both the decision-making process and the bases for judicial choices.
Because of this set of features, the heuristic-systematic model seems especially well adapted to the analysis of judicial behavior. But any model that puts motivation within a cognitive framework can provide fresh insights to the study of judicial decision making. Having focused so much on goals as inputs and choices as outputs, scholars can learn a great deal by considering the processes that link the two.
Conclusions
Students of judicial behavior have emphasized motivation in their explanations of judges’ choices. They have conceptualized motivation primarily in terms of judges’ goals, goals that are defined in common-sense terms. This approach has yielded considerable insight into judges’ choices, and the study of judicial behavior is thriving.
Even so, much can be gained by looking more deeply at the motives that shape judges’ decisions and at the ways those motives operate to shape decisions. Most important, some long-standing limitations in the breadth and depth of explanations can be transcended.
The importance of that benefit has grown with the ascendancy of economic models in the study of judicial behavior. The insights that those models provide must be balanced against the lack of realism in their assumptions about motives and cognitive
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processes. Just as behavioral economics has illuminated the bases of economic behavior, scholarship that takes the realities of human choices more fully into account can illuminate our understanding of judicial behavior. In this respect, as in others, scholarship in psychology provides a way to expand the breadth and depth of our inquiries into judges as decision makers.
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Appendix: Models of Judicial Behavior
The scholarship on judicial behavior in law and political science is extensive and diverse, so a short summary of that scholarship necessarily oversimplifies this body of work. In this summary I lay out the models of judicial behavior that have dominated the study of judicial behavior, giving primary emphasis to their use in political science. This summary is adapted from a discussion in Baum (2006, 5-9), and additional citations to relevant scholarship can be found there.
Students of judicial behavior in law and political science often are not explicit about their theoretical premises. For this reason, it can be difficult to sort out how particular pieces of empirical scholarship relate to theoretical models. However, taken as a whole, the work that is currently being done in political science is considerably more explicit in this respect than the work of past eras.
Legal and Semi-Legal Models
A good deal of legal scholarship rests on the normative premise that judges ought to devote themselves to interpreting the law correctly. In some legal scholarship of the past, this normative ideal was translated into an explanation: in deciding cases, judges try only to make good law. This explanation was effectively debunked by the legal realism movement of the early twentieth century. Although something like a pure legal model is reflected in some law-school teaching and occasionally appears in legal scholarship, it has essentially been discarded.
For some legal scholars and political scientists, the lesson of legal realism is that legal considerations have no impact on judges’ choices. For others, the lesson is more
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complex: the law does not determine what judges do, but judges’ efforts to interpret the law well affect what they do. Although most legal scholars do not adopt explicit theoretical positions about the bases for judicial behavior, this complex version of legal realism is probably the majority position in legal scholarship. It also has adherents in political science, though the most prominent theoretical conceptions of judicial behavior leave little or no room for legal considerations in judges’ choices. Indeed, Jeffrey Segal and Harold Spaeth (2002), the leading proponents of what is called the attitudinal model of decision making, treat the traditional legal model and what might be called semi-legal models as a foil that they seek to refute.
The view that judges give some weight to legal considerations is incorporated into a theoretical approach to the study of politics that has been labeled historical institutionalism. Adherents to this school, such as Howard Gillman (2001b), Mark
Graber (2006), and Keith Whittington (2000), argue that judges care about making good law as well as good policy. They articulate that position primarily through qualitative analysis of the development of judicial doctrine.
There is also a growing body of quantitative research aimed at determining whether the law in its various forms affects judges’ choices. Spaeth and Segal (1999) wrote a book in which they analyze the impact of precedent on Supreme Court justices; their conclusion is that justices generally adhere to their positions in the face of contrary precedents. Other scholars have found evidence for the impact of legal considerations in their own quantitative analyses. Mark Richards and Herbert Kritzer (2002) have done a series of studies in which they conclude that new Supreme Court doctrines reshape the justices’ approaches to the cases to which those doctrines apply. In a book that combined
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quantitative and qualitative analysis, David Klein (2002) argued that judges on the federal courts of appeals respond to the decisions of other courts largely on the basis of an effort to interpret the law well.
Attitudinal Models
Legal realism was reflected in the quantitative studies of Supreme Court decision making that political scientists began to undertake in the 1940s. The premise of these studies was that the justices acted primarily on the basis of their conceptions of good policy (or, in different terms, their policy preferences). C. Herman Pritchett (1954), the leading early scholar, also incorporated legal considerations into his informal theory of judicial behavior. Like most of his successors, Pritchett chose as his main dependent variable a judge’s vote on the outcome of a case (in other words, which party wins). The choice of this dependent variable rather than the content of the legal doctrine that a judge supported was based primarily on methodological convenience (coding doctrine is far more difficult than coding votes).
Later, Harold Spaeth (1979) and Glendon Schubert (1965) adopted more explicit theories that were based to a degree on attitude theory in psychology. In their theoretical and empirical work, attitudes toward alternative policy positions accounted for all or nearly all of what Supreme Court justices do. This conception is reflected in the label of the attitudinal model. Spaeth and his collaborators (first David Rohde and later Segal) have argued that institutional characteristics of the Supreme Court free the justices to respond to cases on the basis of their attitudes about policy. But other scholars applied the attitudinal model to lower courts, especially the federal courts of appeals and the state
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supreme courts (which, of all lower courts, have received the most attention from political scientists).
From the 1960s to the 1990s, the political science scholarship on judicial behavior typically was not very explicit about its theoretical premises. However, most of this scholarship implicitly followed the attitudinal model. One body of work probed the dimensionality of votes in judicial decisions, a dimensionality that was assumed to reflect the structure of judges’ attitudes toward policy questions. Another body of work analyzed the determinants of judges’ votes in terms that assumed the proximate cause of those votes was the judges’ policy preferences.
In its original form, the attitudinal model was not rooted in judges’ motivations: the linkage between attitudes and votes was more or less reflexive. But by the 1960s, both scholars who embraced the attitudinal model and other students of judicial behavior were doing research that assumed a conscious judicial goal of achieving good policy. In arenas such as assignment of court opinions and selection of cases to hear on the merits, judges were depicted as making calculations based on their desire to advance the policies they favored. In other words, they were behaving strategically. The reflexive and conscious conceptions of the linkage between attitudes and behavior coexisted uneasily until the 1990s, when Segal and Spaeth sketched out a reconciliation of the two. That reconciliation is best understood in the context of strategic models of judicial behavior, which I consider next.
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Strategic Models
Students of judicial behavior use the term “strategic” in multiple ways. The most common usage relates to intention. In this usage, strategic judges seek to achieve a desirable outcome of their actions by taking into account the responses of other people to those actions. In the original form of the attitudinal model, judges are not strategic when they cast votes on case outcomes: they take the position that best reflects their policy preferences regardless of how others might react to what they do. In strategic models, in contrast, judges might deviate from their most preferred positions if doing so would achieve a better result. To take the most prosaic example, an appellate judge might take a less liberal doctrinal position than she would prefer in a case in order to secure a majority for a relatively liberal position. As this description indicates, strategic models shift the focus from votes on dichotomous case outcomes as the dependent variable to doctrinal positions on an ideological spectrum.
In the preceding paragraph I described strategy as a means to advance judges’ policy goals. Judges could act strategically in the service of other goals as well. A legally oriented judge could use strategy to advance the judge’s conception of good law.
Judges also might act strategically to advance multiple goals, sometimes balancing them against each other: good law and good policy, good policy and continued tenure in office.
But by and large, analyses of judicial strategy have focused on policy-oriented strategy.
Interest in judicial strategy goes back a long time, and in 1964 Walter Murphy
(1964) published an influential book in which he explored an array of strategies that policy-oriented Supreme Court justices might employ. But in the 1990s scholars began giving more attention to strategic behavior, primarily because of the influence of rational
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choice models imported from economics, models that gained favor in both law and political science. Pulling together these developments, Lee Epstein and Jack Knight
(1998) wrote a book advocating a strategic model of Supreme Court decision making. In depictions by them and by other scholars, strategic considerations might lead the justices to take into account the prospective reactions of their colleagues as well as a variety of groups outside the Court, including the other branches of government and the general public.
Within political science, strategic models are now quite popular. Scholars routinely take the possibility of strategic behavior into account, and much of the research on judicial behavior assumes that judges are strategic. One example is the book on
Supreme Court decision making by Forrest Maltzman, James Spriggs, and Paul
Wahlbeck (2000), which uses information in the justices’ papers to analyze strategy at several stages of decision making. Like that book, a good deal of empirical analysis by other scholars is aimed at documenting strategic action by judges or at ascertaining the extent to which such action occurs. Just as the attitudinal model represented the standard way of thinking about judicial behavior for a long time, strategic models now occupy that position.
The reconciliation of the attitudinal model with strategic models that I mentioned earlier involves the distinction between intention and result. Segal and Spaeth suggest that Supreme Court justices are strategic, and they argue that strategic considerations affect what the justices do in most stages of decision making. But in the vote on the outcome of cases, they argue, justices have no strategic reasons to depart from their most
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preferred policy positions. In this view, the justices can be said to think strategically and act attitudinally.
The difference between intention and result comes into play in a different way in
Epstein and Knight’s strategic model. The justices in that model care only about making good policy. But because the justices are concerned with acceptance of their decisions as legitimate, they sometimes take legal considerations into account--adhering to precedents that are inconsistent with their policy preferences. In this view, the justices are policyoriented but act to a degree as if they were legally-oriented.
Many scholars who give some weight to legal considerations in judges’ choices also leave room for judges to act strategically. The work of some historical institutionalists treats Supreme Court justices as people who use strategy on behalf of both legal and policy goals. Strategy also plays a role of a sort even in pure legal models.
If judges conceive of good law as including coherent legal rules, then judges on an appellate court may compromise with each other as a means to achieve clear, consensual decisions.
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