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 nearly bottomless interest among judicial scholars, and so 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 Adam 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. Professors Picado and Reid use the concept of Gilligan’s different voice (see either Goelzhauser or Kraybill 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 the ecofeminism and different voice literature, and using linguistic 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 from their counterparts. More specifically, are these women of color more likely to display strategic voting in order to retain their seats? 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 Johnson et al. focus on a different type of decision-making altogether—namely, the decision whether to publish an opinion or not. Scholars have already shown clearly that unpublished decisions are important policy-making tools; there has not been a great deal of attention paid to this choice, however. 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.
Rutkowski, Adam G. “Constitutional Interpretation Styles of US Supreme Court Justices.”
Smithey, Shannon. “Strategic Activism.”
Reid, Rebecca. “Human Rights and Court Activism in the Mexican Supreme Court.”
