Chapter 3. Decision Making
That forces other than “the law” or the facts of the case affect judicial outputs is axiomatic. After all, 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 law and legal doctrines. Understanding how and why judges decide the way they do is a topic of near bottomless interest among judicial scholars. Most often, political scientists focus this interest on the U.S. Supreme Court and the internal machinations of the justices. Here we offer three studies that break from this mold. 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 both individual factors, case characteristics and institutional attributes, they find that the institutional norms are the strongest predictors of dissent.
3.1 Smithey, Shannon. “Strategic Activism.”
3.2 Reid, Rebecca. “Human Rights and Court Activism in the Mexican Supreme Court.”
3.3 Bentsen, Henrik Litleré, Mark McKenzie, and Jon Kåre Skiple. “Explaining Dissent Rates on a Consensual Danish Supreme Court”