Decision Making

That forces other than “the law” or the facts of the case affect judges’ decisions is axiomatic. After all, not every decision is unanimous despite the fact that a set of highly trained, experienced, and attentive individuals read and hear the same arguments based on the same set of laws and legal doctrines. Understanding how and why judges decide the way they do is a topic of near bottomless interest among judicial scholars, and likewise, this section contains the largest number of contributions. Most often, political scientists focus this interest on the US Supreme Court and the internal machinations of the justices. Adding to this literature, we offer two studies that attack this question in less conventional ways. The other seven contributions break from this mold, examining state courts, district courts, and international courts. In terms of US Supreme Court decision making, each of these pieces uses textual analysis to answer a narrow question regarding the behavior of the justices. Professor Rutkowski derives a measure of interpretation style for all the justices from 1946 through 2010. Making a distinction between such interpretation styles as textualism, originalism, and progressivism, Rutkowski finds that, even while holding ideology constant, the systematic and predictable effect of style on individual decisions in search and seizure cases remains significant. Professor Bowie and her undergraduate student, Nicolas Ellis, provide us with a case study of the Notorious RBG and investigate whether that moniker and the popularity or notoriety that accompanied it changed Justice Ginsburg’s writing. There were claims that her status as a cultural icon was accompanied by more emotional and pointed dissents. Bowie and Ellis do find that some factors elicit greater emotion in the justice’s writing, but that effect is not conditioned by her national prominence or cult status. Continuing with the theme of writing style, Professors Hitt and Lempert examine whether the quality of the opinion affects the likelihood of a grant of cert. After going through a great deal of trouble to identify and measure the quality of judicial opinions and providing us all with a primer on the challenges of operationalization, the scholars find that the justices do not wish to play the role of professor of legal writing. In other words, the Court’s low-quality opinions are not more likely to be reviewed than its high-quality opinions. Next, Professors Picado and Reid use the concept of Gilligan’s different voice (see either Goelzhauser’s “Intersectional Representation on State Supreme Courts” or Kraybill’s “In a Different Voice” in the actors/judges chapter for more on this theory) to determine if gender differences between Supreme Court justices appear in their decision making. More specifically, they broaden this discussion beyond the typical “gender issues” to determine if women justices use a different voice when deciding environmental issues. Marrying ecofeminism and different voice literature and using linguistical analysis, these scholars find a distinct difference in the framing and tone of these opinions.

Again, the other offerings here examine decision making by judges from a variety of courts. One subset looks outside the United States. First, Professor Shannon Smithey examines how some high courts built their institutional power through strategic judicial action. Professor Rebecca Reid also investigates judicial choices and how those choices can yield policy protections. Studying the Mexican Supreme Court, Reid finds that the justices there are voluntarily increasing the space on their agenda for human rights cases and providing an alternative venue for individuals to achieve protections for their rights. Finally, in a more traditional study of decision making, Professors Henrik Litleré Bentsen, Mark McKenzie, and Jon Kåre Skiple examine why Danish Supreme Court justices choose to dissent in a system known for its high level of consensus. While the scholars investigate individual factors, case characteristics, and institutional attributes, they find that the institutional norms are the strongest predictors of dissent. The other subset looks at US courts other than the Supreme Court. Professors Gonzalez, Fairbanks, and Gleason continue a theme already strongly present in this volume—diversity and inclusion—by investigating whether intersectional judges behave differently than their counterparts. More specifically, are these women of color more likely to display strategic voting in order to retain their seat? Analyzing the decisional behavior of state supreme court justices, they find that intersectional judges are more likely to reflect public opinion in their voting when reelection or retention looms. Finally, Professors Black, Johnson, Owens, and Wedeking focus on a different type of decision making altogether—namely, whether to publish an opinion or not. Scholars have already shown clearly that unpublished decisions are important policy-making tools; however, there has not been a great deal of attention paid to this choice. Johnson and her colleagues show that the decision is affected by individual attributes and strategic behaviors rather than ideology, which is so often the sole touchstone of judicial decision-making studies.

“Constitutional Interpretation Styles of U.S. Supreme Court Justices” by Adam G. Rutkowski

“In Her Words” by Nicolas Ellis and Jennifer Bowie

“Lower Court Opinion Writing Style and Certiorari at the U.S. Supreme Court” by Matthew P. Hitt and Daniel Lempert

“Mother Nature, Lady Justice” by Jonathan A. Picado and Rebecca A. Reid

“Strategic Activism” by Shannon Ishiyama Smithey

“Human Rights and Court Activism in the Mexican Supreme Court” by Rebecca A. Reid

“Explaining Dissent Rates on a Consensual Danish Supreme Court” by Henrik Litleré Bentsen; Mark Jonathan McKenzie; and Jon Kåre Skiple

“At the Intersection of Law and Identity” by Aidan González; Bailey R. Fairbanks; and Shane A. Gleason

“To Publish or Not Publish” by Susan W. Johnson; Ronald Stidham; Kenneth L. Manning; and Robert A. Carp