The articles under this heading deal primarily with the study of judges. Closely related are the articles on ADJUDICATIONand JUDICIAL PROCESS. A detailed guide to further topics will be found underLAW.
I. Judicial BehaviorGlendon Schubert
II. Judicial ValuesWalter F. Murphy
III. Judicial DiscretionWallace Mendelson
IV. Judicial RecruitmentJohn R. Schmidhauser
Judicial behavior is part of the broader approach in political science that has come to be called behavioralism. The aims, theory, and methods of the study of judicial behavior are in general the same as those which characterize the field of political behavior; what distinguishes judicial behavior from behavioralism generally is its specific focus upon the decision making of judges.
All complex modern polities, all those of the past concerning which historical records are available, and all contemporary underdeveloped and primitive polities rely upon adjudication processes as a major technique for resolving conflicts among individuals and groups in order to maximize acquiescence on the part of all persons affected by particular disputes and, at the same time, to minimize recourse to force and violence on the part of the disputants and their allies. Consequently, the ways in which adjudication processes are structured, the ways in which they function, and the effects contingent upon their outputs are major questions of political theory and practice. All polities endeavor to protect the functionaries of their adjudication processes by the establishment of statuses, rituals, and secret languages which have the effect of shielding them from widespread public scrutiny and understanding.
In the United States, and apparently in many other polities as well, the mystique of adjudication is maximal for courts and judges. As a direct con-sequence, attempts to understand courts and judges on the basis of the formal categories, concepts, and justifications that constitute the central elements of the judicial process itself have served largely to reinforce the inaccessibility of the nominal object of study. So long as social science was limited, in its investigation of courts and judges, to the philosophical system of Aristotelian logic, the historical method of collating the manifest con-tent of legal documents, the legal theory of Austinian positivism, and the empiricism of a political science that confined itself to institutional analysis, there was only a limited possibility of acquiring knowledge beyond the replication of the rites, symbols of status, and formal language of discourse employed by the judges themselves.
Behavioralism in public law builds upon the traditional lore, while at the same time checking its reliability and validity by focusing upon the human characteristics of judges as decision makers. This requires an investigation of judges as discrete individuals, as members of social groups, and as actors in social systems. The goal of the study of judicial behavior is to acquire valid, reliable, and precise knowledge of the extent to which the actions of judges conform to and/or deviate from the social expectations that constitute the substantive content of the norms that define the ideals of judicial systems. It becomes necessary, therefore, to analyze not only who judges are, what they do, and when and how they act but also why they make their choices.
Public law was one of the first components to become recognized during the nineteenth century as a part of the emerging academic discipline of political science (Schubert 1966). Until the middle of the twentieth century it evinced minimal response to the influence of the other, more recently evolved social sciences: psychology, sociology, and anthropology; and only since the mid-1950s has it been possible to trace a sustained behavioral development that surpasses the discrete efforts of individual scholars. Since 1960, however, the results of research in judicial behavior lead one to conclude that this is a lasting development. Judicial behavior seems certain to bring about fundamental and widespread changes in both teaching and publication in political science. Moreover, it is likely that the influence of judicial behavior upon the other social sciences will be greater than the influence that has been exercised by traditional public law because of the greater relevance of the content and because of the greater number of open channels of communication maintained by the behavioral approach.
Most scholars agree that the classic essay on the subject of judicial behavior is that of Charles Grove Haines (1922), who debunked the prevailing theory of mechanical jurisprudence, surveyed the empirical research, begun in 1914, on variations in magisterial sentences in the New York City courts, and suggested the probably crucial role that social and psychological variables have in influencing judicial decisions. Raines’s essay included no empirical data of its own, and a decade elapsed before an attempt was made to supply, in part, the kind of evidence that would be relevant to a test of the propositions implicit in his suggestions. In 1933, Rodney Mott, Spencer Albright, and Helen Semmerling published their report of research in which they had compiled descriptive data for a national sample of U.S. state judges, with findings concerning 16 quantifiable characteristics (such as “attendance at a standard law school,” “number of fraternal orders to which the judge belonged” and “size of town in which the judge was born”). Soon thereafter, Mott (1936) reported an extensive survey evaluating the professional reputation of the federal and state supreme courts. He used such indices as the opinions of law professors, and he made a sociometric analysis of the extent to which state supreme courts cited each other and were cited by the United States Supreme Court. Gaudet (1938) followed up the data on New York magistrates with studies of his own on individual variations in the sentencing behavior of judges. Many other descriptive studies, including some which reported quantified data, were published by lawyers during the two decades following World War I, but these diverse empirical analyses, which typify the legal-realist movement in American jurisprudence, were not sufficiently articulated with any systematic body of theory about human behavior to make any enduring contribution to the development of a science of judicial behavior. Perhaps the best of these studies was the Frankfurter and Landis (1927) analysis of the United States Supreme Court’s administration and jurisdictional decision making, which was followed up in theHarvard Law Review during the subsequent decade by a series of annual articles by Frankfurter and various collaborators.
A quite different line of potential development which was strongly influenced by Freudian psychology was charted by a few pre-eminent jurisprudents, especially Harold Lasswell, who reported psychiatric case studies of three types of judges (1948, pp. 64–88), and Jerome Frank (1930). Both Lasswell and Frank were intimately familiar with the theory and practice of psychoanalysis; but notwithstanding the imaginative facility with which each of them discussed the idea of psychoanalytic study of judicial behavior, neither undertook the empirical research that would be necessary to test the many hypotheses that each suggested.
A third approach was charted by Felix S. Cohen (1935), who criticized the excesses of both the Neo-Freudian acolytes—the “bellyache school of jurisprudence”mdash;and the more traditional exponents of “slot-machine jurisprudence.” A truly realistic jurisprudence, Cohen pointed out, could not be content with bare-footed empiricism but must anchor its work in sociological theory: every judicial decision is a social event and can be under-stood only in terms of the complex patterning of influences that have produced it and the equally complex set of consequences to which it contributes. Cohen’s essay was important as a sophisticated and persuasive statement of a theoretical position; the evidence to support it, however, was to come from others. One step in that direction was made by E. Adamson Hoebel, an anthropologist, and Karl N. Llewellyn, a leader of the “realists” among the law professors, who together published the results of their field investigation among the survivors of the Cheyenne Indians (Llewellyn & Hoebel 1941). This unique endeavor reconstructed the judicial function and the “law-ways” among the primitive tribal societies who had ruled the northwestern plains of the United States until about half a century before. The work is important to judicial behavior because it suggests that the organization and policy output of the judicial process is a function of the basic need of social self-preservation in cultures as vastly different as those of the Cheyenne in 1850 and of the United States today.
The transition to the contemporary period in which behavioralism in public law has emerged as a distinct movement was marked by two publications authored by colleagues at the University of Chicago. The first of these was political scientist C. Herman Pritchett’s study (1948) of the relation between small groups and political attitudes among the justices of the United States Supreme Court during the decade following President Franklin Roosevelt’s endeavor to “pack the Court” with a majority of justices of his choice. Pritchett used a modified form of cluster-bloc analysis to investigate the dissenting voting behavior of the justices. By making an independent examination of their voting in several substantive areas (such as civil liberties, the civil rights of criminal defendants, and govern-mental regulation of business and labor), he was able to demonstrate that the Court persistently divided into liberal and conservative blocs. Moreover, by extending his analysis of dyadic agreement in dissent to include the five terms preceding the 1937 reformation, he was able to demonstrate that such blocs existed when the Court was dominated by a conservative majority as well as later when its decision making was controlled by a more liberal majority.
Although a decade elapsed before a generation of younger scholars began to pick up where Pritchett left off, there can be no doubt that his ideas and findings became widely disseminated among students of the Supreme Court in political science and in the law schools. His work became the basis for the standard interpretation of the behavior of the justices during the period since the advent of the New Deal.
The other research that emanated from Chicago, also a study of the United States Supreme Court, was designed and carried out by a leading psychometrician, Louis L. Thurstone. Thurstone and Degan (1951) undertook what was by far the most methodologically sophisticated investigation of judicial behavior up to that time, utilizing factor analysis of a correlation matrix based upon dyadic agreement and disagreement with the majority in voting upon the decisions of the Court in the 1944–1945 terms. From a substantive point of view, however, their findings were limited by their inability to postulate a nonstatistical criterion for attributing substantive meaning to the frame of reference they postulated.
The intimate functional relationship between the exploratory studies of Pritchett and that of Thurstone and Degan was demonstrated over a decade later, when Schubert (1962a) used Pritchett’s data on judicial attitudes and Thurstone and Degan’s factor measurements in order to provide a substantive interpretation of the relationships among the ideal points representing the justices in multidimensional psychological space. This re-interpretation of the earlier data was made possible by the intervening progress that had been made in research into the theory of judicial decision making.
Recent research in judicial behavior has depended upon the construction of new interdisciplinary bridges to psychology and sociology— especially social psychology—and to anthropology and economics, to a lesser extent. For methodological rigor, it has turned to mathematics and statistics. The influence of these sister social sciences has by no means been uniform, however, nor has all the research resulting from these influences been of equal value in either quantity or quality.
In order to observe the different influences, we shall compare the most relevant subfields of these other disciplines, in the sequence that corresponds to the degree of theoretical and methodological rigor they provide in the definition, control, and measurement of the variables that constitute the focus of inquiry in research. Thus, the order of our consideration will be from the most subjective to the most objective of the major theoretical approaches that characterize the field of judicial behavior.
Although the influence of Freudian and Neo-Freudian psychology has been strong in other fields of behavioral science, it has been hardly discernible in recent research in judicial behavior. The seminal theorizing of Frank and Lasswell has borne no empirical fruit, at least thus far. Few judges seem to have taken Frank’s advice to become psychoanalyzed (as he had been); and no studies have been published that have employed any of the other methods—such as direct observation—recommended by Lasswell.
Apart from Llewellyn’s collaboration with Hoebel, the research in primitive law has been done by anthropologists—many of whom have been English. The only relevant writing by a political scientist appears to be James G. March’s review (1956) of a book by English anthropologist Max Gluckman. The March article is important for the theoretical analysis it includes. (For an American anthropologist’s reaction to the same book and to the related body of research in judicial behavior in primitive tribes, consult Hoebel 1961; see also Gluckman 1965a and 1965b, chapter 5.) In comparison with the Freudian contribution, there has been considerably more empirical research done in judicial behavior in primitive societies.
Such work is relevant to a better understanding of judicial behavior in more complex societies because it directs attention to the fundamental similarities of human behavior in adjudicatory roles, and it facilitates discrimination of the effect of cultural differences upon the definition of such roles. Hence, the study of primitive law by social anthropologists may well prove to be of importance to further theoretical and methodological developments in the scientific study of judicial decision making.
General systems theory and structural-functional analysis are developments in American sociological theory associated with the writings of Talcott Parsons, Edward Shils, Robert K. Merton, Marion J. Levy, and Charles P. Loomis. This kind of abstract conceptual model building has been related to the study of judicial behavior by several political scientists. Herndon (1962) has suggested the possibility of developing a general framework for empirical research in state judiciaries on the basis of an “action theory” of judicial behavior. His paper specifies a number of questions that might appropriately be investigated in order to collect empirical data relevant to the requirements of the theory. Ulmer (1961) has made similar suggestions, although with particular reference to study of the United States Supreme Court; his article reports the findings of his own exploratory research in applying the theory in an analysis of the relationship between leadership by the chief justice and dissension in voting behavior among the justices, over a 70–year period. Schubert (1965a) has used systems theory as the framework for a description and analysis of the national judicial system in the United States.
One way of attempting to operationalize Felix S. Cohen’s suggestions concerning the desirability of tracing out the antecedents and consequences of judicial decisions would be to investigate the attempts of organized groups to influence both the decision making of courts and the responses to their decisions. Various groups might articulate their activities to all stages of the adjudicatory process, for example, the generation of disputes, the sponsorship and management of litigation, affiliation (through such devices asamicus curias participation) with litigation controlled by other parties, opposition to the enforcement of judgments, and attempts to gain or deny access to alternative decision-making processes (such as legislation).
As it happened, however, the source of inspiration for such studies in public law was not Cohen. Instead, some students of the judicial process turned to the theory of Arthur F. Bentley and made a very valuable contribution to the study of judicial decision making. In its way, Bentleyan theory is just as mechanical as the legal theory of Austinian jurisprudence; but it did direct the attention of investigators to a different range of data. Instead of limiting description to the formal processes of courts, Bentleyanism pointed toward a focus upon the host of ancillary and informal activities that go on outside the courtroom. The result was a shift of emphasis from the legal aspects of politics to the political aspects of lawmaking by judges. It also led to research designs that took investigators out of the law library and into the field. The best and most succinct statement of the Bentleyan approach as applied to the analysis of judicial behavior is that of Jack W. Peltason (1955). An example of the kind of empirical research that has been produced by the Bentleyan approach is Peltason’s field study (1961) of the role of federal district judges in enforcing the Supreme Court’s school desegregation decision; another example is Danelski’s study (1965) of the complex interplay of influences and interests in the selection of even a single judge.
Empirical research in interest-group activity impinging upon the judicial process was also under-taken by political scientists who did not purport to follow Bentley’s theory—for instance, Clement Vose in his analysis (1959) of the successful campaign of the National Association for the Advancement of Colored People to induce the United States Supreme Court to facilitate access by Negroes to urban housing. Among other recent studies that embrace the judicial-process approach is that of Krislov (1965); several studies have emphasized the political relations of state and local judiciaries (Sayre & Kaufman 1960, chapter 14; Vines & Jacob 1963; Jacob & Vines 1965).
Haines and Mott had suggested that studies of the background characteristics of judges would be particularly valuable for gaining insight into the underlying bases for judicial choice, providing that such data could be quantified and assembled systematically for sets of judges and also that theories and methods could be developed for testing the influence of such back-ground characteristics upon the decision-making behaviors of judges. Schmidhauser (1959) undertook to measure the predominant characteristics of United States Supreme Court justices collectively. Nagel, in a series of articles (e.g., 1962) investigated the relation between judicial attitudes and specific background characteristics. He found, for example, that Democratic judges voted more liberally than Republican judges, and Catholic judges more liberally than Protestant judges. Schmid- hauser (1962) has reported a study of United States Supreme Court justices in which he investigated the interrelations among half a dozen background variables (political party affiliation, previous judicial experience, experience as a corporation lawyer, parental-family socioeconomic status, family tradidition of judicial service, and geographical origins) and two decisional variables (adherence to prece-dent and tendency to dissent). Among his more interesting findings was that contrary to the prevailing beliefs and expectations of both lawyers and politicians, Supreme Court justices who had previous judicial experience votedless frequently in accord with the canon ofstare decisis than did justices without experience in the lower courts.
Social psychology—small groups
Pritchett’s bloc-analysis method of studying subgroups in the United States Supreme Court has been used in several subsequent investigations by other scholars. Snyder (1958) studied ideological differences and change among Supreme Court justices on the basis of a sample of cases involving the interpretation by the Court of amendments to the constitution. Ulmer (1965) subsequently made a somewhat more re-fined study of the same subject, using for data all votes in decisions accompanied by opinions during the 1946–1961 terms. Schubert (1960a) used bloc analysis to study the 1953–1957 terms of the United States Supreme Court and also the 1954–1957 terms of the Michigan Supreme Court; his findings demonstrated, inter alia, that for the elective justices of the Michigan Supreme Court, there was a very high correlation between liberal voting and Democratic party affiliation but for the appointed justices of the United States Supreme Court, there was no significant correlation between liberalism and partisan affiliation. Ulmer (1960a) studied the civil liberties decisions of the 1958 term of the United States Supreme Court, using phi-correlation coefficients, which take into consideration both agreement and disagreement in the voting of a pair of justices. Loeb (1965) has found that blocs of judges on the Court of Appeals of the District of Columbia differ, as do equivalent blocs on the United States Supreme Court, in their attitudes toward civil liberties questions.
Ulmer used dominance matrices to study leader-ship in the Michigan Supreme Court, which he measured on the sociometric basis of the extent to which each justice accepted the opinions written by every other justice (Schubert 1963a, chapter 1). The annual survey articles on the Supreme Court, appearing in such leading journals for their respective professions as theAmerican Political Science Review (until 1961) and theHarvard Law Review, began in the 1950s to include summary statistics on dissenting behavior as well as on work load; and the Supreme Court section ofUnited States Law Week has gone further, including (since 1944) in its annual survey article a matrix of dyadic agreement in dissent.
Social psychology—judicial attitudes
The research on judicial attitudes has built upon the theory of cumulative scaling of attitudes developed during World War II by Samuel A. Stouffer and his associates, and in particular by Louis Guttman. The possibility of using cumulative scaling to study the attitudes of Supreme Court justices apparently was first suggested by Jessie Bernard (1955) and by Joseph Tanenhaus in a paper in 1956. Most of the empirical research using this method, and developing the implications of the theory for the analysis of judicial attitudes, has been done by Schubert (1960a; 1965b), Ulmer (1960a; 1960k), and Spaeth (chapter 4 in Schubert 1963a). Ulmer established the probability that a single-scale variable—attitude toward the civil liberties—has tended to determine the voting of Supreme Court justices in this field of the Court’s policy making. Schubert (1965b) demonstrated that approximately two-thirds of the Court’s decisions on the merits, during a period of almost two decades (1946–1963), involved one or the other of two basic dimensions of liberalism: political or economic. Spaeth found that justices who were sympathetic toward labor were correspondingly antipathetic toward business and that many putative legal variables (such as federalism and deference to administrative expertise) appeared to have little or no influence upon the voting behavior of the justices when they were asked to decide cases that raised questions of economic liberalism.
Psychometric research on judicial ideologies has built upon the exploratory factor analysis of the Supreme Court by Thurstone and Degan (1951) and the writings of Louis Guttman in the theory of cumulative scaling (1954; see Stouffer et al. 1950, chapters 2, 3, 6, 8, 9), together with the theoretical work of other leading psychometricians such as Clyde H. Coombs (1964). Schubert (1965b) has reported investigations for 17 terms of the Supreme Court, in which he utilized factor analysis of cor-relation matrices based upon dyadic agreement and disagreement, in voting with the decisional majority and in dissent, in order to position the ideal points representing the justices in three-dimensional psychological space. These dimensions were found to represent the dominant ideologies that determined the attitudes of Supreme Court jus- tices: (1) the social ideology of equalitarianism; (2) the political ideology of libertarianism; and (3) the economic ideology of individualism. Schubert showed that such distinct attitudes as political liberalism and economic liberalism could be measured by cumulative scaling but that the interrelations among attitudes can best be studied at the ideological level and within the multidimensional frame of reference that factor analysis makes possible. His major empirical findings were that Supreme Court justices during the period since the end of World War II have been divided among three ideological types; and the homogeneity of the point of view of the liberal type is the basic explanation for the emergence of social equalitarianism (racial integration, civic equality, and legislative reapportionment) as the core of both the attitudes of the liberal justices and the most important policy making by the Supreme Court during the 1950s and 1960s.
Relatively little use has been made of game theory as an approach to the study of judicial decision making. Schubert (1960a) has described two experimental game models of Supreme Court decision making, and in a subsequent reformulation he utilized symbolic logic as a more precise language for the specification of the rules of strategy to be followed by the players (1962b). By comparing the actual voting behavior of the justices with the requirements of rational play, he demonstrated that the correlation between theory and practice was positive and very high. The justices of the Supreme Court may not have conceived of themselves as playing a game when they participated in the decisions in these cases, but they nevertheless behaved with the strict rationality that would be required of competing players who wished to maximize their possible gains, and minimize their possible losses, in terms of control over the Court’s policies. Murphy (1964) has discussed the implications of such rational strategies for Supreme Court behavior, including decision making by the justices, both individually and collectively.
A recent study has undertaken to reanalyze some of the extensive data that were collected, during the periods 1915–1916 and 1918–1930, on the sentencing behavior of the judges of the magistrates court of New York City. Somit, Tanenhaus, and Wilke (1960), by taking advantage of the large number of judges and volume of cases included in the reports, were able to test two hypotheses: (a) that considerable difference in sentencing behavior will be found among judges handling fundamentally similar cases; and (b) that each individual judge’s behavior will be generally self-consistent over a substantial period of time. The data strongly sup-ported the first hypothesis but contradicted the second: the New York City magistrates tended not only to differ widely from each other but also to be individually inconsistent through time.
Tanenhaus, Schick, Muraskin, and Rosen (chapter 5 in Schubert 1963a) have collaborated in a study of the jurisdictional decision making of the Supreme Court in certiorari cases. By extensive statistical sampling of thousands of cases over a period of almost a decade and subsequent use of multiple-regression analysis, they were able to de-note three criteria (or “cues,” as the authors termed them) that were most likely to result in the grant of certiorari by the Court: (1) the support of juris-diction by the solicitor general of the United States; (2) the presence of a civil liberties issue; and (3) previous judicial conflict in a case, in the form of either dissenting votes or the reversal of a trial court by an intermediate appellate court. The odds were about eight to two that the Court would grant certiorari in a case containing all three cues. Obviously this kind of knowledge would be useful to an attorney who wanted to predict the likelihood that the Supreme Court would accept jurisdiction, if requested to do so, in a case that he might wish to bring (or to oppose having brought) up from a lower court.
Fred Kort has developed a method for utilizing content analysis of judicial opinions as the basis for predicting decisions of courts. Kort (chapter 6 in Schubert 1963a) used factor and regression analysis in order to predict how a court will decide a case, depending upon the fact patterns (which Kort identifies by the content analysis of opinions and votes in samples of similar cases). Most interestingly, in terms of the importance attributed to stare decisis in traditional legal theory, Kort was able to predict with almost the same degree of accuracy going backward in time as going forward, which suggests that the underlying basis for the high degree of consistency in voting behavior observable in the decision making of many appellate courts is not a function of respect for legal prece-dent but rather results from the high degree of cognitive structure in the attitudes of the justices, both individually and collectively.
The methodological weakness in Kort’s procedures is the reciprocal of the weakness in Schubert’s psychometric approach. Kort can (in effect) locate with precision in a multidimensional psychological space the stimulus points representing the questions raised for decision by cases, but the most that he can say about the ideal points of the justices is that a majority lie on one or the other side of a hyperplane that transects the space. Schubert’s method locates the judicial respondents but not the case stimuli. The development of procedures that would locate points representing both the pending cases and the justices in the same joint space would make possible more precise prediction of outcomes and also would provide a more useful model for the development of a more general sociopsycho-logical theory of judicial decision making.
Several recent studies have attempted to evaluate the comparative utility of various statistical procedures for predicting decisional outcomes. Grunbaum and Newhouse (1965) discuss factor analysis, partial correlation, and multiple regression; Nagel (1965) compares the postdictive power of correlation, multiple regression, and discriminant analysis; while Schubert (1965c) uses correlation, cluster, and factor analysis to compare the opinion with the voting behavior of a single judge. All three of these studies are focused upon data drawn from decisions of the United States Supreme Court.
An examination of the approaches to research in judicial behavior indicates that they may conveniently be divided into two groups. Freudian psychology, anthropology, and sociology are less rigorous in theory and method and may be characterized as focusing upon judicialattributes —the background factors that affect the beliefs and attitudes of judges and thereby the decision-making processes of courts. Social psychology, psycho-metrics, econometrics, and statistics are more rigorous and focus upon the decision-making process itself—that is, how and why judges make the decisions they do.
Another way to classify these approaches is according to the relative emphasis that each has received in contemporary research in judicial behavior. It is clear that the greatest contribution has been made in the study of interest groups, political socialization, small groups, attitudes, and statistical prediction. Less work has been done in systems theory, ideology, and game theory; and practically no further attempts have been made in recent years to use Freudian or anthropological approaches for the study of judicial behavior.
The discussion of the empirical research that has been done thus far makes it evident that the most work, and the most sophisticated work, has focused upon the United States Supreme Court. This emphasis can readily be explained on expediential grounds relating to the greater visibility and accessibility of data regarding the decision-making process of that court. Nevertheless, several scholars have criticized what they regard as an over-concentration of attention upon the United States Supreme Court (Jacob & Vines 1965; Schubert 1963a, chapter 10), as well as the methods employed in some of the recent research (Shapiro 1964, chapter 1; Becker 1966). The relevant theoretical and methodological issues are discussed further in the symposium “Frontiers of Legal Re-search” (1963) and in recent works by Schubert (1965a;1966).
The lack of discussion and research in judicial behavior outside the United States shows that behavioralism in the study of judges remains largely an indigenous American movement which has only recently begun to spread to other countries (see chapter 7 by Aubert and chapter 8 by Torgersen in Schubert 1963a; and Hayakawa 1962). The ex-tent to which substantive findings about judicial behavior reflect the cultural influences of the American system necessarily remains virtually unknown. What is most needed, therefore, is an extension of the focus of inquiry to include comparative analyses of lower courts and of adjudication processes in cross-cultural settings.
Consideration of the predictability of judicial decisions must ultimately confront an underlying question of normative theory, which has sharply divided the legal profession from judicial behavioralists (see Schubert 1963b). Legalists, for reasons of tradition, training, and vocational need, empha-size the importance of predicting the outcome in the individual case. Behavioralists are more interested in understanding the factors that explain significant continuities in the decision making of judges, and therefore what they seek to predict is how most judges will behave in the decision of most cases most of the time; for their purposes some small margin of error must be tolerated, and an adequate test of their theories is provided by statistical probability theory and measures. Aggregates necessarily consist of discrete items; but success in the prediction of the outcome in any individual case is neither a necessary nor a sufficient condition for evaluating the acceptability of behavioral research theory and methods. On the other hand, the accurate prediction of behavior in the aggregate is an essential—if in some present fields an ultimate—test of the validity and reliability of research in judicial behavior. The natural scientist who studies the effect of a filtering screen in a cathode-ray tube cannot predictwhich electrons will pass through the filter; but he can and must be able to predict how many electrons will penetrate, when, why, how, and with what effect. It may not be unreasonable to stipulate an equivalent standard for judicial behavioralists, at least at the present stage of development of the social sciences.
For further discussion and additional references to the literature, see the introduction and the bibliography inSchubert 1963a.The research published during the period 1955—1962 is summarized in greater detail in a biblio-graphical article, Schubert 1963c.Examples of studies of historical significance and of all ten analytical types (including many of the references cited in the present article) are reprinted in Schubert 1964.
Baade, Hans W. (editor) (1963) 1964 Jurimetrics.
New York: Basic Books. → First published in Volume 28 of Law and Contemporary Problems.
Becker, Theodore L. 1966 Political Behavioralism and Modern Jurisprudence: A Working Theory and Study in Judicial Decision-making. Chicago: Rand McNally.
Bernard, Jessie 1955 Dimensions and Axes of Supreme Court Decisions: A Study in the Sociology of Conflict. SocialForces 34:19–27.
Cohen, Felix S. 1935 Transcendental Nonsense and the Functional Approach.Columbia Law Review 35: 809–849.
Coombs, Clyde H. 1964 A Theory of Data. New York: Wiley.
Danelski, David J. 1965 A Supreme Court Justice Is Appointed. New York: Random House.
Frank, Jerome (1930) 1949 Law and the Modern Mind. New York: Coward.
Frankfurter, Felix; and Landis, James M. 1927 The Business of the Supreme Court: A Study in the Federal Judicial System. New York: Macmillan.
Frontiers of Legal Research. 1963 American Behavioral Scientist 7, no. 4. -> Special issue.
Gaudet, Frederick J. 1938 Individual Differences in the Sentencing Tendencies of Judges.Archives of Psychology 32, no. 230.
Gluckman, Max 1965aThe Ideas in Barotse Jurisprudence. New Haven: Yale Univ. Press.
Gluckman, Max 1965kPolitics, Law and Ritual in
Tribal Society. Oxford: Blackwell; Chicago: Aldine.
Grunbaum, Werner F.; and NEWHOUSE, ALBERT 1965 Quantitative Analysis of Judicial Decisions: Some Problems in Prediction.Houston Law Review 3:201–220.
Guttman, Louis 1954 The Principal Components of Scalable Attitudes. Pages 216–257 in Paul F. Lazarsfeld (editor), Mathematical Thinking in the Social Sciences. Glencoe, 111.: Free Press.
Haines, Charles G. 1922 General Observations on the Effects of Personal, Political, and Economic Influences in the Decisions of Judges.Illinois Law Review 17: 96–116.
Hayakawa, Takeo (1962) 1964 Civil Liberties in the Japanese Supreme Court. Pages 325–334 in Glendon Schubert (editor), Judicial Behavior: A Reader in Theory and Research. Chicago: Rand McNally. -> A partial reprinting of “Legal Science and Judicial Behavior, With Particular Reference to Civil Liberties in the Japanese Supreme Court,” published in theKobe University Law Review, No. 2, pages 1–27.
Herndon, James (1962) 1964 The Role of the Judiciary in State Political Systems. Pages 153–161 in Glendon Schubert (editor), Judicial Behavior: A Reader in Theory and Research. Chicago: Rand McNally. -> Paper delivered at the Midwest Conference of Political Scientists, April 1962.
Hoebel, E. Adamson 1961 Three Studies in African Law.Stanford Law Review 13:418–442.
Jacob, Herbert; and Vines, Kenneth N. (editors) 1965 Politics in the American States: A Comparative Analysis. Boston: Little. -> See especially Chapter 7 on “Courts and Political and Governmental Agencies.” KRISLOV, SAMUEL 1965 The Supreme Court in the Political Process. New York: Macmillan.
Lasswell, Harold D. 1948 Power and Personality. New York: Norton.
Llewellyn, Karl N.; and HOEBEL, E. ADAMSON 1941 The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence. Norman: Univ. of Oklahoma Press.
Loeb, Louis S. 1965 Judicial Blocs and Judicial Values in Civil Liberties Cases Decided by the Supreme Court and the United States Court of Appeals for the District of Columbia Circuit. American University Law Review 14:146–177.
March, James G. 1956 Sociological Jurisprudence Revisited: A Review (More or Less) of Max Gluckman [The Judicial Process Among the Barotse of Northern Rhodesia]. Stanford Law Review 8:499–534.
Mott, Rodney L. 1936 Judicial Influence.American Political Science Review 30:295–315.
Mott, Rodney L.; Albright, S. D.; and Semmerling, H. R. 1933 Judicial Personnel. American Academy of Political and Social Science, Annals 167:143–155. MURPHY, WALTER F. 1964 Elements of Judicial Strategy. Univ. of Chicago Press.
Nagel, Stuart S. 1962 Testing Relations Between Judicial Characteristics and Judicial Decision-making. Western Political Quarterly 15:425–437.
Nagel, Stuart S. 1965 Predicting Court Cases Quantitatively.Michigan Law Review 63:1411–1422. PELTASON, JACK W. 1955 Federal Courts in the Political Process. Garden City, N.Y.: Doubleday.
Peltason, Jack W. 1961 Fifty-eight Lonely Men: Southern Federal Judges and School Desegregation.Introduction by Paul Douglas. New York: Harcourt. PRITCHETT, C. HERMAN (1948) 1963 The Roosevelt Court: A Study in Judicial Politics and Values, 1937–1947. New York: Octagon Books.
Sayre, Wallace S.; and Kaufman, Herbert 1960 Governing New York City: Politics in the Metropolis. New York: Russell Sage Foundation.
Schmidhauser, John R. 1959 The Justices of the Supreme Court: A Collective Portrait.Midwest Journal of Political Science 3:1–57.
Schmidhauser, John R. 1962 Stare Decisis, Dissent and the Background of the Justices of the Supreme Court of the United States.University of Toronto Law Journal 14:194–212.
Schubert, Glendon 1960aQuantitative Analysis of Judicial Behavior. Glencoe, 111.: Free Press.
Schubert, Glendon1960b Constitutional Politics: The Political Behavior of Supreme Court Justices and the Constitutional Policies That They Make. New York: Holt.
Schubert, Glendon 1962a A Solution to the Indeterminate Factorial Resolution of Thurstone and Degan’s Study of the Supreme Court. Behavioral Science 7: 448–458.
Schubert, Glendon 1962b Policy Without Law: An Extension of the Certiorari Game.Stanford Law Review 14:284–327.
Schubert, Glendon (editor) 1963aJudicial Decision-making. International Yearbook of Political Behavior Research, Vol. 4. New York: Free Press.
Schubert, Glendon 1963b Judicial Attitudes and Voting Behavior: The 1961 Term of the United States Supreme Court.Law and Contemporary Problems 28: 100–142.
Schubert, Glendon 1963c Behavioral Research in Public Law.American Political Science Review 57:433–445.
Schubert, Glendon (editor) 1964 Judicial Behavior: A Reader in Theory and Research. Chicago: Rand McNally.
Schubert, Glendon 1965aJudicial Policy-making: The Political Role of the Courts. Chicago: Scott, Foresman. SCHUBERT, GLENDON 1965bThe Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices, 1946–1963. Evanston, 111.: Northwestern Univ. Press.
Schubert, Glendon 1965c Jackson’s Judicial Philosophy: An Exploration in Value Analysis.American Political Science Review 59:940–963.
Shapiro, Martin 1964 Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence.New York: Free Press.
Snyder, Eloise C. 1958 The Supreme Court as a Small Group.Social Forces 36:232–238.
Somit, Albert; Tanenhaus, Joseph; and Wilke, Walter 1960 Aspects of Judicial Sentencing Behavior.University of Pittsburgh Law Review 21:613–620.
Stouffer, Samuel A. et al. 1950 Measurement and Prediction. Studies in Social Psychology in World War II, Vol. 4. Princeton Univ. Press.
Thurstone, Louis L.; and Degan, J. W. 1951 A Factorial Study of the Supreme Court. National Academy of Sciences, Proceedings 37:628–635.
Ulmer, S. Sidney 1960a The Analysis of Behavior Patterns on the United States Supreme Court.Journal of Politics 22:629–653.
Ulmer, S. Sidney 1960b; Supreme Court Behavior and Civil Rights.Western Political Quarterly 13:288–311.
Ulmer, S. Sidney (editor) 1961 Introductory Readings in Political Behavior. Chicago: Rand McNally. → See especially pages 167–189 on “Homeostatic Tendencies in the United States Supreme Court” by S. Sidney Ulmer.
Ulmer, S. Sidney 1965 Toward a Theory of Sub-group Formation in the United States Supreme Court.Journal of Politics 27:133–152.
Vines, Kenneth N.; and Jacob, Herbert 1963 Studies in Judicial Politics. Tulane University Studies in Political Science, Vol. 8. New Orleans, La.: The University.
Vose, Clement E. 1959 Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases.Berkeley: Univ. of California Press.
Most legal theories in the Western tradition have been characterized by a search for objectivity, for clear, all-inclusive, and logically arranged rules of conduct administered by informed, intelligent, and impartial judges. This quest, of course, has not been and never will be completely successful. The important question, however, given the imperfections of human nature, is the degree of success in achieving a “rule of law” rather than one of whim or caprice. Various nations have attempted to attain comprehensive sets of rules [see Legal Systems], This article is concerned with the extent to which the values of individual judges impinge on their applications of those rules to specific cases. For reasons that will be brought out in the second section, most of this exposition will focus on American judges.
Values and judicial choice
Judges cannot help but be influenced by the traditions and values of the society in which they have been reared. “The great tides and currents,” Cardozo wrote, “which engulf the rest of men, do not turn aside in their course, and pass the judges by” ( 1960, p. 168). This influence is not of itself evil. A judge who did not believe in justice, in fair play, or in respect for the dignity of man would be an intolerable official in a free society. But agreement on general values implies neither agreement on how those general values may be applied nor agreement on more specific values. Moreover, despite Cardozo’s assurance, many judges, as older men in a society, may resist tides of social change and be left stranded on sparsely settled ideological islands.
In deciding individual cases judges must choose. They must choose between opposing litigants, between competing claims to abstract justice, between conflicting principles of jurisprudence, between different public policies that may flow from a decision, and thus often between specific values. Hopefully, as men of strong character, judges are impartial toward litigants. But it is unlikely that any intelli-gent man who has been active in public affairs— and judges in common law countries are rarely selected from recluses—will not have formed strong convictions about what specific values are necessary to his society and what policy courses are best for his nation. Nor is it likely that such a man will be indifferent to the jurisprudential theories that compete within the Western legal tradition.
The statutes, executive orders, and constitutional provisions that judges apply are rarely so clear as not to admit of two or more reasonable interpretations in difficult cases. Terms like “equal protection,” “due process,” “cruel and unusual punishment,” and “commerce among the several states” are no more self-defining than the concept of the “reasonable man.” Cold, deductive logic may be the cement that binds together the words of judicial opinions; but the critical decision may be the selection of a major premise rather than deductions from that premise. In Holmes’s oft-quoted phrase: “The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed” ( 1963, p. 5).
Thus, in many cases the wording of legal documents creates a wide range of choice for judges. Where, then, do they secure unequivocal guidance for their decisions? Lower court judges may look to appellate courts. Appellate court judges may look to their own past decisions for help. But stare decisis often supplies little more than general admonishments. As a distinguished British jurist has written: “On the whole, it is a sign of an incompetent lawyer or Judge that he is over-impressed by citation of particular authority. Authority is but a guide to juridical understanding—a servant, not a dictator” (Slesser 1962, p. 28). There may be no case strictly in point; there may be several decisions in point, but they might be incompatible in doctrine if not in result. Compromises among judges of the highest court, where an institutional opinion has been published, may have blurred the precise principles that underpinned a relevant decision; where the judges spoke seriatim they may have followed mutually conflicting or even contradictory principles. Or there may be a case and an opinion directly in point, but the resulting general rule may have been eroded by changing conditions.
Nor can the “intent of the framers,” either of a constitution or a statute, always be a reliable guide, even on the assumption that courts should decide current problems according to the wisdom of the past. First of all, since the framers could not have foreseen all social and economic changes, it is probable that on many issues they had no intent at all. Second, even where the framers foresaw problems of the future, it is no easy task to discover exactly how they planned to cope with these difficulties. The materials from which judges are asked to divine the intent of the framers of the U.S. constitution, Justice Robert H. Jackson once quipped, are “almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh” (concurring opinion in Youngstown Sheet & Tube Co. v.Sawyer, 343 U.S. 579, 634, 1952; see also Anderson 1955). Since legislators are aware that judges may scan the record of debates to discern intent, that record may reflect little more than a series of tactical maneuvers whose real purpose is to deceive in order to make a partisan point.
Where general principles of jurisprudence are unclear, constitutional, statutory, or administrative phrases vague, precedents unimpressive, and history uncertain, a judge’s discretion is at its maximum. In such instances his decisions create new law and very possibly new policy. The guidance for his creativity, as both Cardozo ( 1960, p. 113) and Frankfurter (1934, p. 480) remarked, must come from his reading of life itself. In this process a judge’s personal values cannot help but have a great impact. Indeed, a judge’s very perception of his alternatives—or even his realization that, in fact, alternatives are open—will inevitably be heavily influenced by his values. Cantril has pointed out that “a person sees what is ‘significant,’ with significance defined in terms of his relationship to what he is looking at” (1957, p. 121).
To a judge with one set of values, a case may have to be decided by balancing the interests of an individual citizen against those of the government. To a second judge with a somewhat different set of values, the same case may also involve balancing, but balancing the interests of the country as a whole in freedom against its interests in security. A third judge, with his own set of values, may see the decision in the case as requiring an application of what is to him a straightforward command of a constitutional or statutory provision.
A judge’s values may influence him consciously or unconsciously. Since his values affect his perception, he may not be aware of their impact. Few men would be so brash as to claim that they fully understand themselves. On the other hand, a judge may be made aware of at least some of his values. His colleagues if he is on a collegial court or his superiors if he is a trial judge may delight in pointing out to him some of his predilections; so too may his staff as well as professional scholars. Furthermore, if he is a serious, reflective person, introspection may help him analyze himself and enable him to maintain some degree of control over the impact of his values on his decisions.
A judge who is aware of his values may consciously work to see them achieved in judicial decisions and in public policy, but this is not to say that a judge can effectively implement his value preferences. A U.S. judge, even a Supreme Court justice, who deliberately set out to attain those decisional and policy goals demanded by his values would face a network of checks (Murphy 1964, chapter 2). As one of nine judges on a collegial tribunal, a Supreme Court justice would need the assent of four of his colleagues both for a favorable decision and an opinion of the Court. As a member of an appellate tribunal that can hear only a minute proportion of the lawsuits brought in the country, he is heavily dependent on a bureaucracy of state and federal court judges to carry out decisions in cases reviewed by the Supreme Court and also to apply the same principles to thousands of similar cases. The Supreme Court is also subject to numerous political checks by Congress and the president. In addition, because the aura of sacredness that has so often surrounded the Court has been one of the major sources of judicial power, public opinion can operate as a check on one justice’s—or nine justices’—ability to translate individual values into public law and policy. Lower court judges in the United States are liable to similar and more restrictive institutional and political limitations, as are judges of most other nations.
The last set of checks on a judge’s capacity to allow free play to his value preferences is an internal one. As a complex man, a judge is likely to have a complex value system. Policy goals, role concepts, personal ambitions, convictions about ethics and morality, may interact to form a tangled web rather than a pyramid of preferences. The tidy picture of a neat value hierarchy may be a useful model for some purposes, but it is questionable how closely this model fits human beings in the real world. Where difficult cases are involved—where a judge’s range of choice is widest—there is apt to be a serious conflict within his value system, if the term “system” with its connotation of ordered relations is not misleading here. Deep respect for decisions made by legislators may be among a judge’s values, and it may conflict with the demands of some of his other values, thus leading him to agonizing and not always consistent decisions. Even granting that judges’ pleas for self-restraint are apt to be most strident when coming from those who agree with a policy the court has been asked to negate, it does not follow that a judge may not feel strong internal conflict or that he may not opt for a different decision as a judge than he would if he were a legislator, or an executive official, or a private citizen.
The gist of the matter is that given the vagueness of many legal rules and the complicated nature of the factual situations presented, a judge often has considerable leeway for choice. And the common law system has always given him—or burdened him with—such leeway. It is not improbable that the civil law also provides leeway. Because he is a human being his perception of alternatives as well as his selection among alternatives will be influenced by his values. But a judge has leeway, not license. “He is not,” as Cardozo pointed out, “a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness” ( 1960, p. 141). A judge cannot give free rein to his values unless they are widely shared by the general community or at least by the elements within that community who wield effective political power.
The search for methodology
In the United States during the 1920s and 1930s, a group of legal realists, especially Karl Llewellyn (1928–1960) and Jerome Frank (1930), stimulated scholarly investigation of the impact of personal values on judicial decision making. Of course, the fact that values influence judicial action is hardly a recent discovery. Jefferson complained that John Marshall used the constitution as “nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice” (Writings, vol. 12, p. 392). In defense against the assaults of the Jeffersonians, Marshall enshrined in U.S. law the great myth of mechanical decision making, that “courts are the mere instruments of the law, and can will nothing” (Osborn v.U.S. Bank, 9 Wheaton 738, 866, 1824).
The legal realists and political scientists like Edward S. Corwin (1914; 1925; 1934) diverted discussion of the influence of judicial values away from partisan attacks against particular decisions and helped direct criticism into more general lines of analysis. The impact of this scholarship, although not always its immediate intent, was to demonstrate the pervasive effect of the judge’s values on his decisions. Biographical studies, such as those by Beveridge of Marshall (1916–1919), Swisher of Field (1930) and Taney (1935), Fairman of Miller (1939), and Mason of Brandeis (1946), Stone (1956), and Taft (1965), provide fascinating life histories of individual judges as well as revealing accounts of the role of the Supreme Court in U.S. politics. Since these biographies were done by political scientists and lawyers rather than by social psychologists, they illustrate the nature of the various judges’ jurisprudence more than they analyze in a systematic fashion the values that the judges brought to their office and the effect of those values on their decisions.
The fundamental problems in linking values and decisions are obviously ones of methodology: first, how to discover a judge’s values and, second, how to measure their impact on his decisions. In 1918 Schroeder asserted that judges might be psycho analyzed through their opinions. Schroeder’s approach has not yet been demonstrated as feasible for broad investigations, although Lasswell (1930a; 1930b) has published some suggestive work on this subject. The fact that opinions of appellate courts—and it is at this level that opinions are most readily available—are frequently group products inhibits the general usefulness of this method, as does the apparent lack of interest by psychiatrists competent to analyze legal documents. On the other hand, Schroeder’s proposal is not far removed from content analysis, a technique, discussed below, that offers some promise if applied to writings authored by one man.
Quantitative analysis of large numbers of decisions is another possible way of getting at the link between values and choices. In 1922 Haines used the statistics of the city magistrates court in New York to show how some judges had, in huge masses of cases, handled similar issues very differently from other judges. In a series of books and articles, Pritchett used the votes of Supreme Court justices to rank these judges on their attitudes toward certain values as well as to indicate the propensity of some justices to vote together on particular issues (1948; 1954).
Other scholars, most notably Schubert, have re-fined and extended Pritchett’s statistical methods, using such devices as Guttman scales to rank the justices more precisely in regard to their values (1959). This technique offers a unidimensional explanation of voting behavior; that is, votes on a given issue are analyzed to support or refute a hypothesis that value x is crucial or trivial to Judge A, or that reactions to valuey explain the votes of some—or all—of the judges studied. Among the more serious drawbacks of a unidimensional explanation is that many cases involve several values. In an effort to repair this defect, Schubert has attempted to construct multidimensional scales (1962; 1963a; 1965). These early formulations are interesting, but it is as yet too early to ascertain how fruitful they will be.
A related shortcoming of scaling is that, as Pritchett pointed out about his own work (1954, p. 191), such statistics are relational. At most they indicate only that Judge A is apt to defend value x more often than does Judge B. Moreover, analysis of scalograms often suffers from circular reasoning. As Shapiro remarked, “Consistency in voting behavior is used to infer the attitude, and then the attitude is used to explain the consistency” (1964, p. 14). Scaling also shares a weakness of all methods that rely on counting votes: judges, at least appellate court judges, frequently suppress dissenting votes for tactical reasons (Brandeis 1957; Murphy 1964). Thus, while votes may indicate the values held by a judge, the precise extent varies with the individual judge and the circumstances in which he finds himself. Congruence of votes and values is also affected by the kinds of values a judge holds. Loyalty to his court and colleagues, for instance, may overcome attachment to a policy value and help squelch a dissent.
Taking a different tack, Nagel (in Schubert 1964, pp. 234–259) has tried to discover the extent to which judges’ social and political background characteristics correlate with their decisions. He reports, for example, that judges who were Democrats before coming to the bench are somewhat more prone than judges who were Republicans to favor: (1) the defendant in criminal prosecutions; (2) free speech in civil liberties cases; (3) labor in labor-management controversies; (4) the employee in employer liability litigation; and (5) the government in tax and regulation of business cases.
This evidence, although interesting, is not conclusive. Because Nagel’s work has been of a pioneering nature, he has had to work with small samples of judges, broad categories of background characteristics, and relatively unsophisticated statistical techniques. As work progresses in this area and research methods are more refined, one may be able to speak with firmer assurance of the probable impact of a judge’s general background on his jurisprudential orientation.
Another means of studying the influence of values on decision making is through examination of a judge’s private letters, memoranda, and draft opinions. Chief Justice William Howard Taft, for example, wrote long and candid letters every week to his family, explaining in great detail what was going on within the Court. Chief Justice Harlan F. Stone and Justice Frank Murphy kept a number of memoranda in which they or other justices offered to change votes or to suppress separate opinions if certain compromises in the style and substance of opinions could be reached. Murphy and Justice Harold H. Burton kept notes at the supposedly secret conferences of the justices. These notes purported to reveal what the justices said in private about some of the cases they had to decide.
These papers help pierce the veil of secrecy that shrouds much of judicial decision making, but like quantitative analysis their use is subject to serious limitations. First, only a few substantial collections of judges’ papers are open to all scholars, and to date no judge has allowed unrestricted access to his files while still on the bench. Second, what is said in a letter or a memorandum may reflect what a judge wants to recall–again his perception would be influenced by his values–or wants others to recall, rather than what actually transpired. Third, a judge can use notes to his brethren as tactical instruments to persuade or to bargain; what he says he wants, what he really wants, and what he will accept may be very different. Last, a hasty remark at a conference or even a memorandum may represent a tentative position rather than a firm judgment.
A possibility that may greatly further systematic study of judicial values is that of content analysis of a judge’s personal correspondence or of his lone concurring or dissenting opinions (cf. the technique used by White 1947). As of this writing, however, only one such attempt has been made— and that, admittedly, was a preliminary investigation (Danelski 1964).
Although not completely restricted to the United States, the realistic approach to the study of courts and law has had its major impact on U.S. scholars. The civil law’s reliance on finely detailed codes supposedly narrows the discretion of the judge, and the civil law’s prohibition against dissenting or concurring opinions multiplies problems of discovering relationships between behavior and values. Moreover, the continued prevalence in most of the Commonwealth nations of analytical jurisprudence and a mechanical theory of judicial decision making has inhibited realistic investigation of the judicial process in those countries.
Nevertheless, numerous worthwhile studies are available in English on judicial behavior in other countries. Among the more important are those of Hayakawa on Japan (see Schubert 1964, pp. 325–334), Sollie (1958), Aubert (see Schubert 1963b, pp. 201–219), and Torgensen (see Schubert 1963b, pp. 221–244) on Norway, and McWhinney’s general investigation of the common law nations (1956) and his more specialized study of Germany (1962). In addition, there appears to be a growing interest in comparative analysis among U.S. political scientists, and an increasing concern among foreign scholars about the actual way their own judges arrive at decisions and influence public policy.
Values and jurisprudence
It is from the inevitable impact of a judge’s values on his decisions that the really important problems in jurisprudence flow. First, how can a judge limit this impact and to what extent should he try? Should he not attempt to foster certain kinds of values? As was noted earlier, a judge who did not believe in justice or fair play would be an intolerable official in a free society. But suppose a judge discovers—and the process of discovery is by no means obvious—that his specific values are in conflict with those which dominant public opinion or the opinion of more popularly representative members of government is currently supporting. Should he pursue his own values? Or should he play the role of the tribune and reflect as best he can the will of the people and their legislative or administrative representatives? Does a judge have the moral or legal right to try to lead public or official opinion toward what he feels are more worthwhile values? If he does have such a right, what are its limits?
Walter F. Murphy
Anderson, William 1955 Intention of the Framers: A Note on Constitutional Interpretation. American Political Science Review 49:340–352.
Beveridge, Albert J. 1916–1919 The Life of John Marshall 4 vols. Boston: Houghton Mifflin. → Volume 1: Frontiersman, Soldier, Lawmaker, 1755–1788. Volume 2: Politician, Diplomatist, Statesman, 1789–1801. Volume 3: Conflict and Construction, 1800–1815. Volume 4: The Building of the Nation, 1815–1835. Brandeis, Louis d. 1957 The Unpublished Opinions of Mr. Justice Erandeis: The Supreme Court at Work. Selected and edited by Alexander M. Bickel. Cambridge, Mass.: Belknap Press. → Published posthumously.
Cantril, Hadley 1957 Perception and Interpersonal Relations. American Journal of Psychiatry 114:119–126.
Cardozo, Benjamin N. (1921) 1960 The Nature of the Judicial Process. New Haven: Yale Univ. Press. Corwin, Edward S. (1909–1952) 1964 American Constitutional History: Essays. New York: Harper.
Corwin, Edward S. 1914 The Doctrine of Judicial Review: Its Legal and Historical Basis, and Other Essays. Princeton Univ. Press.
Corwin, Edward S. 1925 Constitution v. Constitutional Theory. American Political Science Review 19:290–304.
Corwin, Edward S. 1934 The Twilight of the Supreme Court: A History of Our Constitutional Theory. New Haven: Yale Univ. Press.
Danelski, David J. 1964 Values as Variables in Judicial Decision-making: Notes Toward a Theory. Unpublished manuscript. → A paper delivered at the 1964 annual meeting of the Midwest Conference of Political Scientists.
Fairman, Charles 1939 Mr. Justice Miller and the Supreme Court: 1862–1890. Cambridge, Mass.: Harvard Univ. Press.
Frank, Jerome (1930) 1949 Law and the Modern Mind. New York: Coward.
Frankfurter, Felix 1934 Supreme Court, United States. Volume 14, pages 474–482 in Encyclopaedia of the Social Sciences. New York: Macmillan.
Haines, Charles G. 1922 General Observations on the Effects of Personal, Political, and Economic Influences in the Decisions of Judges. Illinois Law Review 17: 96–116.
Holmes, Oliver Wendell (1881) 1963 The Common Law. Cambridge, Mass.: Harvard Univ. Press.
Lasswell, Harold D. (1930a) 1960 Psychopathology and Politics. New ed., with afterthoughts by the author. New York: Viking.
Lasswell, Harold D. 1930b Self-analysis and Judicial Thinking. International Journal of Ethics 40:354–362.
Llewellyn, Karl N. (1928–1960)1962 Jurisprudence: Realism in Theory and Practice. Univ. of Chicago Press. → See especially pages 431–465 on “A Realistic Jurisprudence: The Next Step.”
Mcwninney, Edward (1956) 1960 Judicial Review in the English-speaking World. 2d ed. Univ. of Toronto Press.
Mcwninney, Edward 1962 Constitutionalism in Germany and the Federal Constitutional Court. Leiden (Netherlands): Sythoff.
Mason, Alpheus T. 1946 Brandeis: A Free Man’s Life. New York: Viking.
Mason, Alpheus T. 1956 Harlan Fiske Stone: Pillar of the Law. New York: Viking.
Mason, Alpheus T. 1965 William Howard Taft: Chief Justice. New York: Simon & Schuster.
Murphy, Walter F. 1964 Elements of Judicial Strategy. Univ. of Chicago Press.
Pritchett, C. Herman (1948) 1963 The Roosevelt Court: A Study in Judicial Politics and Values, 1937–1947. New York: Octagon Books.
Pritchett, C. Herman 1954 Civil Liberties and the Vinson Court. Univ. of Chicago Press.
Schroeder, Theodore 1918 The Psychologic Study of Judicial Opinions. California Law Review 6:89–113.
Schubert, Glendon (1959) 1960 Quantitative Analysis of Judicial Behavior. Glencoe, 111.: Free Press.
Schubert, Glendon 1962 The 1960 Term of the Supreme Court: A Psychological Analysis. American Political Science Review 56:90–107.
Schubert, Glendon 1963a Judicial Attitudes and Voting Behavior: The 1961 Term of the United States Supreme Court. Law and Contemporary Problems 28: 100–142.
Schubert, Glendon (editor) 1963b Judicial Decision-making. International Yearbook of Political Behavior Research, Vol. 4. New York: Free Press. → See especially pages 201–219 on “Conscientious Objectors Before Norwegian Military Courts” by V. Aubert and pages 221–244 on “The Role of the Supreme Court in the Norwegian Political System” by Ulf Torgerson.
Schubert, Glendon 1963c Behavioral Research in Public Law: Bibliographical Essay. American Political Science Review 57:433–445. → This bibliographical article contains a fine discussion of some of the literature on judicial behavior published up to 1962. The discussion, however, is largely limited to writings employing quantitative research techniques.
Schubert, Glendon (editor) 1964 Judicial Behavior: A Reader in Theory and Research. Chicago: Rand McNally. → See especially pages 234–259 and 325–334. SCHUBERT, GLENDON 1965 The Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices, 1946–1963. Evanston, 111.: Northwestern Univ. Press.
Shapiro, Martin 1964 Law and Politics in the Supreme Court: New Approaches to Political Jurisprudence. New York: Free Press.
Slesser, Henry H. 1962 The Art of Judgment, and Other Studies. London: Stevens.
Sollie, Finn 1958 Courts and Constitutions: A Comparative Study of Judicial Review in Norway and the United States. Ph.D. dissertation, Johns Hopkins Univ.
Swisher, Carl B. (1930) 1963 Stephen J. Field: Craftsman of the Law. Hamden, Conn.: Shoe String Press.
Swisher, Carl B. (1935) 1961 Roger B. Taney. Hamden, Conn.: Shoe String Press.
White, Ralph K. 1947 Black Boy: A Value-analysis. Journal of Abnormal and Social Psychology 42:440–461.
Surely the basic judicial value in the Anglo-American legal tradition is the Rule of Law. Yet the meaning or application of the law in concrete settings is often plagued with doubt. One reason for this is that lawmakers are handicapped by the limitations of human foresight. They cannot anticipate all the combinations and permutations of circumstance. Likewise, the law must reveal itself in ordinary language, which is plagued with imprecision. Moreover, competing claims in a free society often reflect not merely incompatible interests but differing conceptions of right and wrong. Inevitably in such a setting the essence of the legislative process is compromise and accommodation. This is apt to find expression in terms more suggestive than precise and sometimes more calculated to avoid clear commitments than to embrace them. Moreover, as Plato observed, laws by definition are general rules; this is their essence and their weakness. Generalities falter be-fore the complexities of life. They must usually concern themselves more with form than with substance. That is why, in Plato’s view, law is far inferior to the wise discretion of a philosopher-king, who could give each man his due—whereas law must be satisfied to prescribe what is due in abstract categories regardless of much that is unique in the men and events that they embrace. Recognizing the problem of generality, Aristotle rejected the Platonic all-wise ruler: “To invest men with authority is to introduce a beast, as desire is something bestial, and even the best of men in authority are liable to be corrupted by anger.” Law, in contrast, “is intelligence without passion” (Politics) III , 16, 1287a32).
The common law
The Anglo-American legal tradition synthesizes the wisdom of Plato and the wisdom of Aristotle. Having rejected the philosopher-king in favor of the Rule of Law, it calls him back to limited service as judge. In this capacity he is expected to fill the gap between the generalities of law and the specifics of life.
Of course, the meaning and application of some legal rules are unambiguous. Indeed, they may be sufficiently clear to preclude litigation. Others are so vague, so lacking in standards, as to foreclose judicial decision. Justice Oliver Wendell Holmes ventured to suggest that when a judge refers a negligence question, for example, to a jury, “he avows his inability to state the law” and recognizes that “while if a question of law is pretty clear we [judges] can decide it, as it is our duty to do, if it is difficult it can be decided better by twelve men at random from the street” (Holmes [1885–1918] 1952, p. 234). Putting such problems to a jury is not unlike leaving inscrutable constitutional provisions for application by the political branches of government (e.g., Luther v. Borden, 48 U.S. 1, 1849).
Between these extremes, where the law is neither so clear nor so vague as to preclude adjudication, judges must find standards for decision as best they can. By the common-law tradition their guide in doubtful cases is not justice, but what Holmes called “the actual feelings and demands of the community, whether right or wrong” (Holmes  1963, p. 36). Other great lawyers have expressed the same thought in somewhat different terms. “Law accepts as the pattern of its justice the morality of the community whose conduct it assumes to regulate” (Cardozo 1928, p. 37). A judge must “manifest the half-framed purposes of his time” (Hand  1960, p. 14). “Whatever is contra bonos mores et decorum, the principles of our law prohibit...” (Lord Mansfield in Jones v. Randall, 98 E.R. 707, 1774). It is “the duty of the Court to keep the rules of law in harmony with the enlightened common sense of the nation” (Pollock 1929, p. 295). The “sober second thought of the community...is the firm base on which all law must ultimately rest” (Stone 1936, p. 25). In short, judicial law must express “the views and feelings that may fairly be deemed representative of the community as a continuing society” (Frankfurter 1954, p. 237).
It comes to this: When doubtful matters cannot be avoided by referring them to juries or to the political processes, judges shall decide them in accordance with the standards and values of “the reasonable man.” This common-law creature symbolizes the community, as do jury and legislature. He is an “external standard” for the guidance of a troubled court—the common denominator of the views just quoted.
The Anglo-American synthesis of Plato and Aristotle thus insists upon the Rule of Law, yet recognizes the necessity of judicial discretion: a discretion which it limits by an ancient common-law device—the reasonable man. In this manner it seeks to accommodate the traditions of the past and the comfort of the present, society’s need for stability and its need for change.
Some insist that, whatever the proclaimed standard, a judge cannot escape his own values—his own personal bias. Yet we know that men differ widely in the ability to rise above this limitation, and as Learned Hand insists, “the incredulity which seeks to discredit that knowledge is a part of the crusade against reason from which we have already so bitterly suffered” (Hand  1960, p. 218). In the long view, surely the common law itself is a monument to the belief that the judicial process can attain a high degree of objectivity, that the reasonable-man standard is an effective guide for those who strive for detachment.
Others insist that even if judicial neutrality is possible, it is not desirable, that the community ought to have the benefit of the moral insights of its great judges (Cahn 1951, pp. 838 ff.). Hand’s answer expresses the orthodox tradition, “[The judge] is not to substitute even his juster will [for that of the community]; otherwise it would not be the common will which prevails, and to that extent the people would not govern” (Hand  1960, p. 109).
American constitutional law
Inspired by the common-law tradition, American constitutional law has insisted (with some lapses) that dubious acts of the political branches of government shall not be adjudged invalid unless a court is prepared to hold that no reasonable man could support them (Thayer 1893, pp. 129 ff.). Here again the ultimate standard is the views and feelings that may fairly be deemed representative of the community as a continuing society. Yet the Platonic ideal dies hard, and from time to time Platonists have found their way to the bench. In modern terminology they are called “activists.” Judges of this persuasion do not deny their duty of deference to community values when the law is dubious. They seem, however, to have a special ingenuity for dissipating doubt. Where others are torn between alternate paths, they are apt to find unmistakable guidance in the wisdom and purpose of the Founding Fathers or in some “higher law.” Platonists on the bench do not avow, they merely practice, activism. When Justice Field needed a constitutional device for imposing laissez-faire upon the states, he found it in the natural rights of the Declaration of Independence—which he insisted had been incorporated in the constitution’s fourteenth amendment (Butchers’ Union Co. v. Crescent City Co.,111 U.S. 746, 1884). Modern libertarian activists find that Field was quite wrong, that the fourteenth amendment was designed to absorb not the Declaration but the bill of rights (dissenting opinion in Adamson v. California, 332 U.S. 68 ff., 1947). This permits them to escape, as Field did, the traditional, community-oriented value system of the Supreme Court’s majority (Palko v. State of Connecticut, 302 U.S. 319, 1937). They, too, may eventually prevail—if only temporarily.
Of course, a judge may be as creative in determining the consensus of the community as in discovering the “true meaning” of the Founding Fathers. Yet there is a major difference: the Founding Fathers can neither protest nor clarify their views. Given the modern activist’s progressive bent, surely he would not accept past “purposes” as generally binding. Moreover, in view of the changing and contradictory intentions that have been attributed to the Fathers, their views with respect to modern problems would seem to be at least as uncertain as our own. Perhaps, when the activist pleads past purposes to support his conception of present needs, he does so because he is reasonably sure his views would not be presently acceptable on their own merits. In any event, the difference between activism and the more orthodox common-law tradition is a difference in emphasis, as that between Plato and Aristotle.
Some “legal realists” (among others), insisting that political choice is inherent in the judicial process, argue that judges should abandon the ideal, or pretense, of objectivity. In short, courts should courageously exercise their discretion to achieve social justice—as they see it (Braden 1948, p. 594). In this view, of course, both the reasonable-man and the Founding Fathers approaches are at best vehicles of self-deception—at worst “noble fictions” that hide the inevitable process of judicial legislation.
Ultimately, law is not a basket of ready-made answers, but a technique for solving an endless flux of social problems. “[It] is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off” (Holmes  1963, p. 32). Under a fagade of formal symmetry the judicial process must synthesize established rules, pragmatic needs, and moral yearnings. It must honor reasonable expectations born of the past and yet allow adequate Lebensraum for the present and the future. In the long run it cannot defy or ignore the basic values of the community that it serves. There is no other reliable sanction for law and order in a democratic society.
Braden, George D. 1948 The Search for Objectivity in Constitutional Law. Yale Law Journal 57:571—594.
Cahn, Edmond N. 1951 Authority and Responsibility. Columbia Law Review 51:838—851.
Cardozo, Benjamin N. (1921) 1960 The Nature of the Judicial Process. New Haven: Yale Univ. Press.
Cardozo, Benjamin N. 1928 The Paradoxes of Legal Science. New York: Columbia Univ. Press.
Chafee, Zechariah 1947 Do Judges Make or Discover Law? American Philosophical Society, Proceedings 91:405—420.
Dicey, Albert V. (1905) 1962 Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century. 2d ed. London and New York: Macmillan.
Frankfurter, Felix 1954 Some Observations on the Nature of the Judicial Process of Supreme Court Litigation. American Philosophical Society, Proceedings 98:233—239.
Friedmann, Wolfgang (1945) 1960 Legal Theory. 4th ed. London: Stevens.
Hand, Learned (1952) 1960 The Spirit of Liberty: Papers and Addresses. 3d ed., enl. Collected and with an introduction and notes by Irving Dilliard. New York: Knopf.
Holmes, Oliver Wendell (1881) 1963 The Common Law. Cambridge, Mass.: Harvard Univ. Press.
Holmes, Oliver Wendell (1885—1918) 1952 Collected Legal Papers. New York: Smith.
Pollock, Frederick 1929 Judicial Caution and Valour. Law Quarterly Review 45:293—306.
Pound, Roscoe 1921 The Spirit of the Common Law. Boston: Jones.
Pound, Roscoe 1959 Jurisprudence. 5 vols. St. Paul, Minn.: West. → Volume 1: Jurisprudence: The End of Law. Volume 2: The Nature of Law. Volume 3: The Scope and Subject Matter of Law. Volume 4: Application and Enforcement of Law. Volume 5: The System of Law.
Stone, Harlan F. 1936 The Common Law in the United States. Harvard Law Review 50:4—26.
Thayer, James B. 1893 The Origin and Scope of the American Doctrine of Constitutional Law. Harvard Law Review 7:129—156.
The process of judicial recruitment embodies those factors that bear directly or indirectly upon the choice of the officials who man the courts of a given nation or its political subdivisions. Judicial selection has been considered the first great problem that arises in any judicial system. Solutions to this problem and to the closely related subject
of judicial tenure have varied in accordance with the prevailing theoretical conceptions of the nature of justice and practical considerations reflecting the distribution of political power in the society.
Dawson, in hisHistory of Lay Judges (1960), underscores the fact that the evolution of the manor courts in England and the seignorial courts in France was seriously influenced by power struggles between monarchs seeking greater national control and local lords fighting to maintain or expand local autonomy. In these countries the specialization of legal skills and the organization of lawyers led to the monopolization of judicial posts by lawyers and was a matter not only of prime political consequence but also of great significance in the historical development of judicial recruitment. The relatively unique historical experience of England permitted the survival of lay judges for a considerably longer time than was true in the rest of western Europe.
These references to the historical analysis by Dawson illustrate one of the approaches to the study of legal institutions presently employed by western European students. Much of the research and writing available on the process of judicial selection and tenure is limited to the western European and American experiences, and even here there are great lacunae. The development of these institutions has not been definitely explored for every western European nation. Neither has the process of further historical exploration and reinterpretation of the British evidence been completed. Except for material of a formal descriptive nature, little research in depth has been conducted on non-Western legal systems (Washington Foreign Law Society 1956; Yanaga 1956).
Within the Western tradition there remains much emphasis upon formal description. But a penchant for relating institutional practice (such as mode of recruitment and relative stability of tenure) to qualitative evaluation (such as the relative prestige and influence of specific courts) has long characterized some of the more perceptive scholars in England, France, and the United States. James Kent, for example, argued:
The judiciary of the United States has an advantage over many of the State Courts, in the tenure of the office of the judges, and the liberal and stable provision for their support. The United States are, by these means, fairly entitled to command better talents, and to look for more firmness of purpose, greater independence of action, and brighter displays of learning. The federal administration of justice has a manifest superiority over that of the individual states, in consequence of the uniformity of its decisions, and the universality of their application. Every state court will naturally be disposed to borrow light and aid from the national courts, rather than from the courts of other individual states, which will probably never be so generally respected and understood. ([1826–1830] 1844, vol. 1, pp.443–444)
Perceptive, albeit impressionistic, hypotheses concerning the relationship of the social, economic, and political background of judges to decision-making behavior aroused intense academic, as well as political, interest in judicial recruitment and tenure in America. Historically, this intellectual focus was a concomitant of the political reappraisal that characterized the Populist and Progressive movements. Karl N. Llewellyn’s “On Warranty of Quality, and Society” was a study of interaction between economic background, legal ideology, social function, and judicial personality. Thomas Reed Powell’s work provided yet another example. Articles such as his “Judicially of Minimum Wage Legislation” (1924) concentrated upon the ideological commitments of the individual justices. Among political scientists, Cortez A. M. Ewing (1938) and Charles Grove Haines contributed to this intellectual current. Western European examples are not lacking; although, as the work of Piero Calamandrei (1935) demonstrates, such treatments often tended toward eulogistic formalism. The influence of Louis L. Thurstone, the University of Chicago psychologist, upon some of his colleagues in political science gave impetus to the development of systematic appraisal of judicial selection and tenure. The work of Rodney L. Mott and his associates (1933) was seminal in this respect. Mott undertook exploratory investigations of the chronological pattern of changes in the characteristics of selectees of several American courts (1936). Employing modifications of Thurstone’s factor analysis, Mott also devised a method for measuring quantitatively the relative influence and prestige of state and federal highest appellate courts (1948).
The widespread American adoption of elective judicial selection methods (often with relatively brief tenure) in the nineteenth century was followed by a counterrevolution spearheaded by the American Bar Association. A veritable torrent of opinion concerning the relative merits of the appointive or elective mode of judicial selection has flooded law journals and professional legal publications for over half a century. However, since much of the academic as well as professional writing on this controversy has been exhortive, little factual material has been available on the actual nature of these systems, other than institutional
descriptions of the sort now supplied periodically by the Council on State Governments.
Beginning in the late 1930s, research of an analytic quantitative nature has added several dimensions to modern investigation of American judicial recruitment and tenure. Herndon (1962) has documented that approximately 56 per cent of the judges serving on 36 elective state courts (1948–1957) were first chosen by appointment rather than popular election. Ewing (1938) and Schmidhauser (1960) each investigated, in the late 1930s and 1950s respectively, the social, educational, and political backgrounds of members of the Supreme Court of the United States. Nagel provided a comprehensive series of articles demonstrating that regardless of variations in tenure and methods of selection certain background factors, such as political party affiliation, do consistently influence decision making on the major state appellate courts. Nagel (1961) also found that the ideological differences between Democratic and Republican judges were consistent with partisan differences found in voting behavior studies and congressional voting behavior.
Attention has also been focused upon chronological age, particularly age at judicial oath-taking and at the termination of judicial service (Donahue & Tibbitts 1962). Data drawn from the United States Courts of Appeals, the United States Supreme Court, and several highest state appellate courts indicate variations in such age patterns that suggest the need for more research on regional differences. Exploratory study of the relationship of judicial background to institutional tradition rather than decision-making tendency indicated that commonly held notions about the significance of such factors as prior judicial experience need serious modification. For instance, judges thoroughly experienced in the American tradition of appellate decision making prior to serving on the United States Supreme Court felt less compulsion to ad-here tostare decisis and were more prone to dis-sent than inexperienced colleagues (Nagel 1962).
The comparatively recent flowering of American behavioral studies of judicial recruitment and tenure (Schubert 1960) has not resulted in the accumulation of a body of data sufficient for definitive analysis even among the American states; and far less has been completed quantitatively with respect to western European or non-Western processes. To the extent that the new modes of analysis provide the means for challenging cross-cultural research, students of judicial personnel are at the threshold of a potentially great research opportunity.
John R. Schmidhauser
Abraham, Henry J. 1962 The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France. New York: Oxford Univ. Press.
Calamandrei, Piero (1935) 1942 Eulogy of Judges. Princeton Univ. Press. → First published in Italian under the titleElogio del giudici: Scritto da un avvocato.
Carr-saunders, Alexander; and Wilson, P. A. 1933 The Professions. Oxford: Clarendon.
Dawson, John P. 1960 A History of Lay Judges. Cambridge, Mass.: Harvard Univ. Press.
Ewing, Cortez A. M. 1938 The Judges of the Supreme Court, 1789–1937. Minneapolis: Univ. of Minnesota Press.
Haynes, Evan 1944 The Selection and Tenure of Judges. Newark, N.J.: National Conference of Judicial Councils.
Herndon, James 1962 Appointment as a Means of Initial Accession to Elective State Courts of Last Resort. North Dakota Law Review 38:60–73.
Kent, James (1826–1830) 1844 Commentaries on American Law. 4 vols. 5th ed. New York: The Author. → A fourteenth edition was published in 1896 by Little, Brown of Boston.
Llewellyn, Karl N. 1936–1937 On Warranty of Quality, and Society. Columbia Law Review 36:699–744; 37:341–409.
Mott, Rodney L. 1936 Judicial Influence. American Political Science Review 30:295–315.
Mott, Rodney L. 1948 The Measurement of Judicial Personnel. New York University Law Quarterly Review 23:262–277.
Mott, Rodney L.; Albright, S. P.; and SEMMERLING, H. R. 1933 Judicial Personnel. American Academy of Political and Social Science, Annals 167:143–155. NAGEL, STUART S. 1961 Political Party Affiliation and Judges’ Decisions. American Political Science Review 55:843’850.
Nagel, Stuart S. 1962 Ethnic Affiliations and Judicial Propensities. Journal of Politics 24:92–110.
Powell, Thomas Reed 1924 The Judicially of Minimum Wage Legislation. Harvard Law Review 37:545–553.
Schmidhauser, John R. 1960 The Supreme Court: Its Politics, Personalities and Procedures. New York: Holt.
Schubert, Glendon 1960 Quantitative Analysis of Judicial Behavior. Glencoe, 111.: Free Press.
Washington Foreign Law Society 1956 Studies in the Law of the Far East and Southeast Asia. Washington: The Society.
Yanaga, Chitoshi 1956 Japanese People and Politics. New York: Wiley.
JUDICIARY. In the early 1830s Alexis de Tocqueville observed that sooner or later, every important American political issue ends up in the courts. The judiciary of the United States thus occupies a unique institutional role. Americans are a litigious people, and lawyers are a higher percentage of the population in the United States than in any other nation. It is the judiciary that must resolve these disputes. Judges occupy a venerated position in the United States, unlike those of most other nations, where they are regarded more as bureaucrats than as important formulators of policy. Because the rule of law occupies a place in the United States something like the monarchy or the established church once did in European nations, those who administer the law are particularly venerated. They are also the subject of great controversy, and have been since the earliest days of the Republic.
English and Colonial Antecedents
The American judicial system is based on that of Great Britain, but the manner in which justice was administered in England and the colonies is not what it came to be in the United States. Until the twentieth century, English judges were regarded as executive officials, "lions under the throne," as a sixteenth-century term had it. The king was regarded as the law speaking, and although the king's place as the font of law was challenged by the common law judges and this role of the monarch was later displaced by Parliament, throughout much of English history judges were removable at the discretion of the Crown or Parliament. Colonial judges were subject to dismissal by the royally appointed colonial governors or by officials in London. Colonial courts applied English common law, but the decisions of those courts could be overruled by English administrators. Thus, prior to the American Revolution it could not be said that judges had much prestige or that Americans had an independent judiciary.
From Independence to the Civil War
The new state constitutions in 1776, like the federal Constitution in 1789, generally established independent judiciaries as branches of government coequal to the legislatures and executives. The notions expressed in constitutions that liberty requires separating judging from legislating and that it was the job of the judges independently to implement the sovereign will of the people began to take hold. Judges were no longer removable at executive or legislative whim but were, at the federal level and increasingly at the state level, guaranteed tenure during good behavior. An early tension between the state and federal courts was resolved after the political struggles over the Judiciary Act of 1789 and the Judiciary Act of 1801, which generally favored the state courts as the principal forums for the resolution of legal disputes and the development of private law doctrines, such as property, torts, contracts, and corporations.
At a time when the "United States" was a plural rather than a singular noun, it is not surprising that state courts and state governments in general exercised the greatest influence over the lives of American citizens. Nevertheless, even in the early years of the Republic the federal courts and in particular the U.S. Supreme Court, in the exercise of judicial review, enforced some constitutional restrictions against the states. In one of the most important decisions of this kind, Chief Justice John Marshall held in McCulloch v. Maryland (1819) that the state of Maryland could not tax the federally incorporated Bank of the United States. That same year in the Dartmouth College Case, Marshall overturned the decision of the New Hampshire Supreme Court that the state legislature could alter the charter of Dartmouth College, in effect transforming it from a public to a private university. Somewhat later, in Swift v. Tyson (1842), Justice Joseph Story, in spite of a provision of the 1789 Judiciary Act that required him to follow the laws of the states in which the federal courts were situated, ruled that in commercial law matters, the federal courts could impose a rule based on general understandings of the common law rather than the case law of the state in which the federal court sat.
These were exceptional cases, however. In general, unless a clear conflict existed between state and federal statutes or between state law and the federal Constitution, the federal courts gave the state courts and legislatures broad discretion. The best example of this attitude is the Charles River Bridge Case (1836), decided shortly after Chief Justice Roger Taney replaced Chief Justice Marshall. The state of Massachusetts had chartered a bridge to compete with the Charles River Bridge, the beneficiary of an earlier state charter. The Charles River Bridge attorneys argued that its charter implied that the state would not authorize at some future date a new bridge that would drive the Charles River Bridge out of business. Dartmouth College could have been read to support this argument, but Taney, writing for the Court, rejected it, arguing that the country's developmental needs required competition and progress in the means of transportation and that Massachusetts should be permitted to charter competing bridges in the public interest.
The goals of commercial progress and social mobility reflected in Taney's Charles River Bridge decision seem also to have motivated scores of state common law judges, who altered private law doctrines taken from the hierarchical, status-based and agricultural English society to fit an increasingly democratic, growth-orientated, and entrepreneurial American culture. In the early days of the Republic, Americans feared that judges, and in particular federal judges, might turn into an inconvenient aristocracy, oppressing the people with the great discretion the power of judicial review conferred on them. Instead, as Tocqueville predicted, judges and lawyers seem to have moved the law in a more democratic direction. Indeed, in the state judiciaries, to keep judges responsive to the people, election of judges became more common than executive appointments.
The controversy over slavery in the territories in the fifth decade of the nineteenth century, however, resulted in a Supreme Court decision that seriously damaged the prestige of the Court. That decision may have contributed to a climate in which the judiciary ceased for a time to play a significant role in refashioning the law in keeping with social needs. In the Dred ScottCase (1857), Chief Justice Taney, writing for the Court in a 7 to 2 decision, ruled that the Constitution prevented Congress from prohibiting slavery in the territories, and also ruled that even freed slaves could not, in the contemplation of the Constitution, be treated as citizens. The decision may have been conceived as way of quelling sectional discontent, but it had the opposite effect. Many historians believe it was instrumental in causing the Civil War.
From the Civil War to the New Deal
From the end of the Civil War until the third decade of the twentieth century, the Supreme Court for the most part played what might be described as a conservative role in national political life, defending the freedom of businesses to make contracts and generally reining in legislatures that sought to impose regulations. For example, in Lochner v. New York (1905), over a strong dissent from Justice Oliver Wendell Holmes Jr., the Court held that to allow New York to regulate the hours of bakers would violate the freedom of contract guaranteed by the Fourteenth Amendment.
The Court did, however, permit some federal regulations to pass constitutional muster, for example, with regard to the Interstate Commerce Act (1887) and the Sherman Antitrust Act (1890). Moreover, while the Court was, in Lochner and other cases, hostile to the general idea of regulating freedom of contract, it did permit states to regulate wages and hours in particularly dangerous industries or to protect groups that might not possess sufficient bargaining power. Among other significant decisions, the Court held in Plessy v. Ferguson (1896) that it was permissible to impose racial separation in public transportation so long as the facilities provided were "separate but equal." And in Bradwell v. Illinois (1872) the Court held that, in spite of the Fourteenth Amendment's guarantee of "equal protection of the law" to all persons, women did not have to be admitted to the practice of law.
The reforms at the end of the nineteenth century and the beginning of the twentieth century were characterized more by constitutional amendments and legislative initiatives than by progressive decisions of the courts. Similarly, the common law administered by the state courts was changed relatively little. Democratic and egalitarian advances, such as the progressive income tax, securing the franchise and professional equality for women, giving adopted children rights of inheritance, or creating property rights for spouses, were accomplished by amendments or laws, not by court decisions. Indeed, many commentators have suggested that judges at both the state and federal levels were generally hostile to such changes and narrowly construed both constitutional amendments and legislation where it differed from the common law or previously prevailing constitutional jurisprudence.
From the New Deal to the Twenty-First Century
All of that changed in the last six decades of the twentieth century. During the Great Depression, the federal government under Franklin D. Roosevelt instituted an ambitious program of social legislation unlike anything ever seen before. At first the Supreme Court tended to rule that the federal government did not possess the constitutional power to dictate rules for the general management of the nation's economy, for example, in Schechter Poultry Corporation v. United States (1935). That decision held that congressional power to regulate inter-state commerce did not permit the setting of wages, hours, and reporting requirements for a New York chicken slaughterhouse, even if the chickens had been transported from other states. But by 1937 the Court seemed to change course in a move some called "the switch in time that saved nine." In National Labor Relations Board v. Jones and Laughlin Steel Corporation, the Court held that the federal government could set up a scheme to foster collective bargaining on wages and hours and other matters that could reach even manufacturing plants within particular states. From 1937 until 1995 no federal regulatory scheme was held insufficient on interstate commerce grounds. At the same time that the Supreme Court embraced doctrines permitting greater federal regulation, it also rejected the expansive notion of freedom of contract that previously had hindered both state and federal measures.
The reasons for the Supreme Court's abrupt about-face on these matters have been the subject of debate ever since, but it seems safe to say that two factors were of importance. One was the continued popularity of President Roosevelt, whose landslide victory in 1936 and whose attacks on the "nine old men" who were frustrating his plans for national economic recovery may have struck home. Indeed, Roosevelt's threat to "pack the Court" by increasing the number of justices with appointments of persons more friendly to regulation may have been taken seriously.
Just as important as politics was a change in jurisprudential understanding that occurred roughly contemporaneous with the "switch in time." After Oliver Wendell Holmes Jr. published his classic The Common Law in 1881, lawyers and law professors more commonly understood that the judicial role, over the course of American history, included a strong legislative component. At the beginning of the twentieth century even establishment figures, like Harvard's dean Roscoe Pound, railed against "mechanical jurisprudence" and urged its replacement with "sociological jurisprudence," in which the judges as well as legislators understood more clearly their obligation to alter the law in a progressive manner. In the early 1930s, some critics, calling themselves legal realists, began to challenge the whole idea of following precedent and the claim that legal and doctrinal questions had objective answers. Whether or not legal realism had a strong influence on what some called the judicial revolution of 1937, the doctrine was profoundly influential in fomenting the explosion of legal doctrinal change that was ushered in with Chief Justice Earl Warren.
The Warren Court (1953–1969). The Warren Court's most famous decision, rendered soon after the new chief justice ascended the bench, was Brown v. Board of Education of Topeka (1954), in which the court ruled that state-sponsored school segregation violated the Fourteenth Amendment. This decision departed from the original understanding of the amendment, but Warren justified it on the grounds that the country could not "turn back the clock" to the time of the amendment or the time of the framing of the Constitution. This signaled that the Court had expressly embraced the notion of a "living Constitution," made equally clear in the jurisprudence of other liberal members of the Court, including in particular William O. Douglas and William Brennan. Other justices, most prominently Hugo L. Black, urged interpretation according to the original understanding of constitutional provisions. Still others, such as Felix Frankfurter and John Marshall Harlan II, counseled what came to be referred to as judicial restraint, the notion that legal change should be left to other branches of government.
To a great extent, however, the views of Warren, Douglas, and Brennan prevailed, and the Supreme Court proceeded expansively to cite the Fourteenth Amendment, in particular to end the practice of state-sponsored school prayer, to rewrite the rules of criminal prosecution in the states, and to order legislative reapportionment of both houses of state governments according to the principle of "one person one vote." The Court also considerably broadened the freedoms of speech and press guaranteed under the First Amendment far beyond that contemplated by the framers, believing that such expansion was necessary to achieve the country's professed democratic and egalitarian goals.
The tendency in American legal history is for changes in the interpretation of common law doctrines to accompany or to follow changes in constitutional law jurisprudence. Just as an explosion of common law changes followed the establishment of an independent United States and a federal Constitution, so a major alteration of the common law followed in the wake of the Warren Court's activities. State court judges, who then comprised (and continued to comprise into the twenty-first century) roughly 95 percent of the nation's judiciary, began to alter the rules regarding contracts, torts, and property.
Contract law, which had tended to defer to the expressed intentions of the parties, increasingly was interpreted to allow the courts to set aside agreements in which one party had taken unconscionable advantage of another or to allow them, when unanticipated events occurred, more or less to rewrite the parties' arrangements. The law of torts, which had generally not imposed liability where actors had performed in a manner that was not negligent, changed in the case of the manufacturers of consumer goods to impose liability where products left the factory in an "unreasonably dangerous" condition, even in the absence of negligence. In addition, the rules of property, which had tended to favor landlords and had been strictly interpreted in favor of established ownership interests, were relaxed to favor tenants, and lease agreements were interpreted more liberally to promote equity rather than to increase certainty. Just as the general culture seemed to undergo radical change in the 1960s, both constitutional and private law were dramatically altered at the hands of the judiciary.
The Burger Court (1969–1986). Not everyone in the legal profession or the nation was comfortable with the activist legal realist approach of the Warren Court. In 1969, when Richard Nixon had the opportunity to name a new chief justice upon Warren's retirement, he nominated Warren Earl Burger, a conservative from Minnesota. Some Burger Court decisions restricted the ambit of the Warren Court era by, for example, limiting access to the federal courts, particularly for those seeking to overturn decisions of the executive branch. Still, in one of its most notable decisions, United States v. Nixon (1974), the Court, while recognizing the doctrine of executive privilege, ruled that under the circumstances the president could not conceal evidence of wrong doing when sought by a prosecutor in a criminal case. The implication was clear as well that executive privilege could not be used to conceal evidence of presidential wrongdoing in the course of impeachment proceedings, as the federal courts were to rule a quarter of a century later in the case of President William Jefferson Clinton.
From the vantage point of history, it is striking how little the Burger Court altered the "living Constitution" philosophy of the Warren Court or the jurisprudence of the "switch in time." The Burger Court did not significantly diminish the regulatory power of the federal government, which dramatically expanded during those years, and the Warren Court's emphasis on the rights of the individual was if anything dramatically increased by the most famous decision of the Burger Court, Roe v. Wade (1973). An earlier decision of the Warren Court, Griswold v. Connecticut (1965), had announced an implicit "right to privacy" in the Constitution, said to inhere in "emanations and penumbras" of various amendments. In Roe this "right of privacy" became solidly anchored in the Fourteenth Amendment's due process clause, and the Court announced in a remarkable 7 to 2 decision that for any state to prohibit abortion in the first three months of a woman's pregnancy would be a violation of due process. Thus, substantive due process, the doctrine invoked in Dred Scott, endorsed in Lochner, and rejected during the course of the "switch in time," reappeared in a new guise and established constitutional "freedom of choice."
Many constitutional scholars sought a coherent doctrinal defense for Roe based on precedent, but virtually all conceded that the decision represented a policy choice made by the justices against prohibiting abortion. Their choice was consistent with emerging legislative trends in the states, but the availability of abortion by judicial choice was difficult for many Americans to accept. Subsequently, this sort of judicial activism became a hot topic of political debate. Each year on the anniversary of Roe, antiabortion and pro-choice demonstrators stage noisy rallies in front of the Supreme Court's august edifice, and political campaigns and judicial nominations often turn on the issues of reproductive freedom and judicial legislation.
The Rehnquist Court. Ronald Reagan, elected president in 1980, followed the Republicans' practice of campaigning on a platform of ending judicial activism. Consequently, his nominations to the Court were expected to be persons committed to rolling back the expansionist decisions of the Warren and Burger Courts. Accordingly, some of his nominees encountered resistance in the Senate from those who favored the decisions, primarily Democrats. One nominee, Robert Bork, was defeated on the explicit charge that he would "turn back the clock" to a time when unfair racial treatment and "back-alley" abortions prevailed. This charge was undoubtedly unfounded, but it demonstrated the vitriol often employed regarding the courts and the strong influence they had come to wield in American society. Indeed, it often seemed as if not only did every political dispute sooner or later become a judicial matter, as Tocqueville had said, but that virtually all judicial matters eventually became political fodder.
When President Reagan nominated a conservative sitting justice, William S. Rehnquist, to become chief justice, Rehnquist too encountered strong resistance and the suggestion by critics that he would move the Court in a reactionary direction. Nevertheless, the Senate confirmed Rehnquist, and though he personally dissented, his Court in 1992 affirmed two of the most controversial Warren and Burger Court decisions. The Court ruled in Lee v. Weisman (1992) that the school prayer decisions should be extended to prohibit state-sponsored prayer at graduation ceremonies. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Court reaffirmed the declaration in Roe v. Wade of a constitutional right of privacy and interpreted it to bar all prohibitions on abortion that imposed an "undue burden" on a woman's right to choose. Unlike Roe, Casey did not dictate a solution based on a trimester model of pregnancy. But Casey did continue to recognize the right of the states to protect the potential life of the fetus and to prohibit abortion when the fetus was viable, except in cases where the life or health of the mother was at stake.
In other areas, however, and increasingly at the end of the twentieth century, the Rehnquist Court showed signs of changing constitutional jurisprudence. Most important in this regard was a series of decisions called the Court's "new federalism," of which United States v. Lopez (1995) was the most important. In Lopez the Court sought to impose limits on the federal government's exercise of regulatory powers and to move closer toward the original constitutional scheme in which the states were the primary lawmakers. For the first time since the "switch in time," the Court seemed prepared to strike down federal regulations on a regular basis. At the beginning of the twenty-first century, judicial activism was again at the center of national politics, as the presidential candidates Al Gore and George W. Bush stated their preferences or dislikes for the jurisprudence practiced by individual members of the U.S. Supreme Court. In an ironic development, the Rehnquist Court decided the outcome of that election for Bush by a 5 to 4 vote in Bush v. Gore (2000).
At the beginning of the twenty-first century, the Court faced difficult choices between the jurisprudences of the "living Constitution" and the "original understanding" in cases involving state aid to religious schools, affirmative action, and the balance between the powers of the state and federal governments. In 2001 the Senate held hearings on "judicial ideology," and because the Rehnquist Court decided many controversial cases by 5 to 4 majorities, any vacancies on the Supreme Court were expected to result in confirmation struggles. Indeed, so delicate was the matter of judicial selection that nine months into George W. Bush's term, with more than one hundred vacancies on the lower federal court benches, the Senate had confirmed only a handful of the new president's judicial nominees.
In the state courts, the rules of the common law did not seem to undergo reformulation in the same activist manner as previously. Indeed, a movement began for legislative "civil justice reform" to reverse the tendency of state juries to render multimillion-dollar and in some cases multibillion-dollar verdicts against corporate defendants. State legislatures began to pass such civil justice reforms, including limiting the amount of recoverable damages and putting other procedural roadblocks in the way of plaintiffs and their lawyers. Many of these "reforms" were ruled unconstitutional by state courts, based on provisions in state constitutions that guaranteed plaintiffs rights to trial by jury and that mandated the separation of the judicial power from the legislative.
State and federal courts and legislatures also seemed engaged in the promulgation of rules designed to protect property owners and investors in order to strengthen an American economy that faced stiffer competition from European and Asian concerns. Some American industries, such as asbestos, tobacco, and commercial aviation, were bankrupted or severely damaged by litigation, and anti-trust regulators at the state and federal levels sought to move against titans, such as Microsoft, accused of predatory practices against consumers and competitors. The outcome of these struggles was unclear, but the trend at the beginning of the twenty-first century, at least, was toward the resolution of these important economic disputes by legislatures and executives rather than by the courts.
Berger, Raoul. Government by Judiciary. Cambridge, Mass.: Harvard University Press, 1977.
Bickel, Alexander M. The Supreme Court and the Idea of Progress. New York: Harper and Row, 1970.
Hall, Kermit L. The Magic Mirror: Law in American History. New York: Oxford University Press, 1989.
Horwitz, Morton J. The Transformation of American Law, 1780–1860. Cambridge, Mass.: Harvard University Press, 1977.
———. The Warren Court and the Pursuit of Justice. New York: Hill and Wang, 1998.
Kelly, Alfred H., Winfred A. Harbison, and Herman Belz. The American Constitution: Its Origins and Development. 7th ed. New York: Norton, 1991.
Kutler, Stanley I. Privilege and Creative Destruction: The "Charles River Bridge" Case. Philadelphia: Lippincott, 1971.
McCloskey, Robert G. The American Supreme Court. 3d ed. Chicago: University of Chicago Press, 2000.
Nelson, William E. The Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830. Cambridge, Mass.: Harvard University Press, 1975.
Olson, Walter K. The Litigation Explosion: What Happened When America Unleashed the Lawsuit. New York: Truman Talley Books–Dutton, 1991.
Pound, Roscoe. The Formative Era of American Law. Boston: Little, Brown, 1938.
Presser, Stephen B., and Jamil S. Zainaldin, eds. Law and Jurisprudence in American History. 4th ed. St. Paul, Minn.: West Group, 2000.
Yarbrough, Tinsley E. The Burger Court: Justices, Rulings, and Legacy. Santa Barbara, Calif.: ABC–CLIO, 2000.
———. The Rehnquist Court and the Constitution. New York: Oxford University Press, 2000.
The judiciary is the branch of government charged with resolving, or adjudicating, disputes between citizens, between other government institutions, and between the government and its people. Judicial power may extend to three separate functions: (1) administering the criminal justice system by determining when a violation of the criminal law has occurred and declaring the appropriate sanction for that violation; (2) administering the civil justice system by resolving disputes, enforcing contractual obligations, and protecting property rights; and (3) exercising judicial review of legislative enactments to ensure that new laws comport with constitutional requirements.
The disputes resolved by judicial entities—often called courts or tribunals —are referred to as cases. Courts may rest the authority to resolve a case in a single official, who may be called a magistrate, a judge, or a justice. In the alternative, some courts, called collegial courts, place decision-making authority in a group. In a collegial court, a group of judges will hear a single case and will collectively be responsible for adjudicating its outcome.
The scope of a court’s authority is its jurisdiction. Jurisdiction may be defined geographically, with a judicial entity having authority over a particular city, state, or region. In the alternative—or additionally—a court’s jurisdiction may be defined by subject matter. For example, a court may have authority only over issues of intellectual property or only over issues of criminal law; such a court would be a court of limited jurisdiction, as opposed to a court of general jurisdiction.
Finally, a court’s jurisdiction may be original or appellate in nature. A court’s original jurisdiction extends to those cases it hears before any other court. In contrast, a court’s appellate jurisdiction extends to cases in which it is reviewing the decision of another court. The notion of appellate jurisdiction presupposes a hierarchical judicial system.
For example, in the United States, each state has its own judicial system, and the federal government has a separate—more appropriately, a parallel—judicial system. The federal judiciary is hierarchical: federal district courts, which have original jurisdiction in most disputes, have jurisdiction over a set geographic territory, no larger than a state; U.S. circuit courts of appeals, which function as intermediate appellate courts, also have jurisdiction over a set geographic territory, usually a group of contiguous states; and the U.S. Supreme Court is a single judicial body that has jurisdiction over the entire nation.
The U.S. Supreme Court primarily exercises appellate jurisdiction, reviewing decisions of lower federal courts and state high courts; a citizen involved in a dispute with his neighbor cannot go directly to the U.S. Supreme Court but, rather, can only appeal to the U.S. Supreme Court after attempting to obtain a favorable verdict from at least one lower court, and usually several. The U.S. Constitution, however, carves out a few types of cases, such as cases involving foreign officials, over which the Supreme Court has original jurisdiction; accordingly, such a case could begin and end in the Supreme Court, with no other judicial body ever rendering a decision.
Although judicial systems vary significantly from nation to nation—and even sometimes from jurisdiction to jurisdiction within a single nation—there are a few aspirational characteristics that most judicial bodies share. Among these ideals are objectivity and institutional independence.
Objectivity The rule of law is a cornerstone of government legitimacy, particularly in democratic states. The judiciary is the voice of the law, and in a just society the application of the law is not affected by favoritism or bias. Accordingly, an ideal judicial system is objective.
Judicial officials are expected to leave their personal preferences out of their decision making, and institutional rules are often designed to eliminate or minimize the possibility, even the appearance, that judges are motivated by anything other than the law. In an effort to expose potential bias, judges frequently must disclose their financial records, and in systems where judges are elected, rules relating to campaign contributions may be especially stringent. Many judicial systems provide rules against ex parte communication —communication about a case with one party or attorney to which the other party or attorney is not privy—and rules against the judge discussing the case with the public or media before an official decision has been rendered. Ultimately, the goal of all of these rules is to eliminate any personal interest in the outcome of the case and to limit the ability of outside parties to sway the judge’s position.
Of course, like every government institution, the judiciary is composed of human beings who cannot leave their humanity at the door. Most judges have studied the law, perhaps worked as attorneys or held other public office, and are generally well-informed individuals. It would be bizarre to expect that they do not have opinions about legal issues, judicial philosophy, and public policy. Moreover, it would be unreasonable to expect that judges can compartmentalize their own opinions to such an extent that they have no effect whatsoever on their judicial decisions.
Studies of judicial behavior, primarily of justices on the U.S. Supreme Court, have persuasively demonstrated that judicial decisions are affected to some extent by ideological concerns. Specifically, to the extent that Supreme Court justices disagree about the outcome of a particular case—an indication that the law is not entirely clear—there are predictable patterns of agreement between the justices and predictable patterns of voting that correspond, roughly, to liberal and conservative viewpoints. There is considerable debate about the conditions under which and the degree to which ideology colors judicial decision-making, but it is generally accepted that ideology is a factor. Indeed, decisions about selecting and electing judges in the United States are highly politically charged because it is generally understood that judges bring their individuality to the task of judging and are not, rather, automatons rigidly applying the law.
Institutional Independence To protect the rule of law, judicial officials must be objective; the influence of their personal preferences, biases, and interests on their decisions should be minimal. Yet it is not enough to constrain the members of the judiciary; they must also be protected from threats of reprisal from unpopular decisions. Thus, another common ideal for judicial institutions is that they enjoy institutional independence.
Referring to a government institution as a judiciary generally distinguishes it from a legislature (a deliberative body that develops laws and policies) or an executive (the individual or individuals charged with carrying out the will of the government). The judicial power, however, is not always severed from the legislative and executive powers. For example, the biblical King Solomon was renowned for his ability to resolve disputes, and in the English feudal system of the Middle Ages, landowners adjudicated disputes among their tenants. Similarly, many Native American tribes traditionally vested the authority to resolve disputes and impose criminal sanctions in the tribal council, a body that also possessed legislative and executive powers. Such intermingling of political responsibility and judicial responsibility is generally considered suboptimal because it often means that the individuals exercising judicial authority are subject to political pressures that may taint their judicial decisions.
Even when the judicial power resides in a formally separate institution—a judiciary—the relationship between the judiciary and other institutions of government may impair the ability of the judiciary to uphold the rule of law. Judges who rely on other government actors to secure their wages, to maintain their staffs and their facilities, and even to keep their jobs are understandably vulnerable to political pressures. Freeing the judiciary from these sources of dependence, specifically by institutional arrangements that make it difficult if not impossible for other government institutions to undermine the judiciary’s ability to function, advances judicial independence.
While it is easier to insulate the judiciary from public pressure, the separation of the judiciary from electoral influence poses more philosophical problems for democratic states, particularly when the judiciary exercises judicial review. The notion of a government entity that is not answerable to the public effectively exercising a veto over legislative acts runs counter to the idea of majority rule; for precisely that reason, some states opt to select judges through popular elections or allow the public to remove unpopular judges through recall elections.
Advocates of judicial independence argue, in response, that the judiciary provides a critical check on majoritarian government, protecting enduring political values and the interests of political minorities from fleeting political passions or minority tyranny. Proponents of judicial independence suggest appointing judges based on merit, for life tenure or for a fixed, nonrenewable term.
Even when institutional arrangements maximize judicial independence, the interplay between the judiciary and more political forces is apparent. For example, members of the U.S. federal judiciary are appointed by the president but must be confirmed by the Senate, and they enjoy life tenure. Still, historically, the federal courts have shown deference to political sentiment. The U.S. Supreme Court seemed to abandon principle to political pressure when it upheld the constitutionality of the Japanese internment during World War II (1939–1945) and when it shifted its position on economic liberty to allow adoption of the New Deal policies of Franklin D. Roosevelt (1882–1945). Even when the Supreme Court made the politically unpopular move of ordering the desegregation of public schools, the Court’s concern for public opinion was apparent; Chief Justice Earl Warren (1891–1974) carefully crafted his opinion in Brown v. Board of Education (1954) to ensure a unanimous Court, and the Court waited a year after declaring segregated schools unconstitutional before issuing the opinion ordering desegregation. In other words, even when the Supreme Court uses its independence, it often attempts to make concessions for public opinion.
While most judicial systems share a common purpose and certain common ideals, there is tremendous variation in the structure and function of judicial systems when viewed in comparative perspective. The rest of this article will focus on some of the key dimensions along which judicial systems vary.
Criminal Justice: Inquisitorial and Adversarial Systems The judiciary often bears primary responsibility for the administration of criminal justice: adjudicating guilt and assessing sanctions for the violation of criminal laws. Criminal justice systems and, more specifically, the role of courts in those systems, may be adversarial or inquisitorial ; these terms define endpoints on a continuum, with most judicial systems blending elements of both adversarial and inquisitorial procedures.
In a purely adversarial system, prosecutorial and adjudicating powers are completely separated. A prosecuting authority makes the decision to charge a citizen with a crime, gathers evidence of guilt, and argues on behalf of the state. The role of the judiciary is limited to receiving evidence from both the prosecutor and the accused, weighing that evidence, and adjudicating guilt. Thus the party adjudicating guilt and innocence hears both sides of the story, presented as cohesive wholes, in relatively quick succession.
In contrast, in a purely inquisitorial system, both prosecutorial and adjudicating authority are vested in a single institution. In an inquisitorial system, the same individual or institution will be responsible for charging a citizen with a crime and for determining whether the citizen is guilty. Judicial officials in inquisitorial systems gather evidence and directly question witnesses. The danger of an inquisitorial system is that during the course of investigation, the judicial authority will become committed to a particular theory or belief and that subsequent, countervailing evidence will not be accorded sufficient weight. In other words, inquisitorial systems create a real risk that prosecutorial zeal and momentum will cloud the ultimate determination of guilt.
Civil Justice: Common Law and Civil Law Systems The role of the judiciary in the administration of civil justice—the resolution of disputes between private parties—varies considerably between common law countries and civil law countries. Common law countries are, generally, England and its former colonies, while the civil law tradition has its origins in France.
The common law tradition is premised on the notion that law, as a body of community norms, derives as much from custom and usage as from government edicts. In common law countries, a significant portion of the law is developed by the judiciary through the process of resolving disputes. When confronted with a new dispute, courts will look at past similar disputes—what we call precedent —for guidance. In this incremental fashion, building resolution upon resolution, a body of judge-made common law is created.
In the civil law tradition, the role of the judiciary is considerably more limited. Codified law is far more detailed and governs every aspect of social intercourse. The role of the judiciary is limited to interpreting those laws that have been enacted by the legislative branch of government.
Judicial Review: American and European Models One dimension along which we can differentiate types of judicial systems is the manner in which they exercise judicial review. Judicial review is the process of evaluating new legislative enactments and executive policies to ensure that they are consistent with constitutional requirements. There are two principal models of judicial review: the European model and the American model.
The European model is characterized by a division between ordinary courts, which are typically hierarchical systems for addressing basic civil and criminal matters, and a constitutional court, which is a single court of limited jurisdiction devoted solely to the business of ruling on the constitutionality of legislative acts. France, Portugal, Germany, and Russia all have a constitutional court system. In these countries, when the legislature passes a new law, it may be challenged directly in the constitutional court. In some countries, such as France, the challenge must come from a state actor. In others, such as Germany, even ordinary citizens may allege a constitutional violation.
The American system is considerably less efficient. The American judicial system is unified: there is a single, hierarchical federal court system—with trial courts, intermediate appellate courts, and a Supreme Court—that handles civil matters, criminal matters, and constitutional questions. Challenges to the constitutionality of legislative enactments must work their way through the complete hierarchy, a long and burdensome process. What’s more, the challenges must arise in the context of an actual case or controversy rather than as a simple allegation of unconstitutionality.
To illustrate, imagine a law forbidding the distribution of pamphlets critical of the government. In a country with a European system of constitutional courts, an individual who believes the law violates the country’s constitution would address this argument directly to the constitutional court; the constitutional court would rule up or down on the issue of constitutionality, and the dispute would be over. In an American-model country, however, an individual who believes the law is unconstitutional would have to create a case—likely by breaking the law, enduring arrest, and then challenging the constitutionality of the law during the course of his or her criminal trial. The challenge may need to be repeated in the trial court, one or more appellate courts, and finally the U.S. Supreme Court.
SEE ALSO Activism, Judicial; Bill of Rights, U.S.; Jurisprudence; Supreme Court, U.S.
Baum, Lawrence. 2001. American Courts: Process and Policy. 5th ed. New York: Houghton Mifflin.
Segal, Jeffrey A., and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. Cambridge, U.K.: Cambridge University Press.
Stone-Sweet, Alec. 2000. Governing with Judges: Constitutional Politics in Europe. New York: Oxford University Press.
Tate, C. Neal, and Torbjörn Vallinder, eds. 1995. The Global Expansion of Judicial Power. New York: New York University Press.
Wendy L. Watson
The branch of government that is endowed with the authority to interpret and apply the law, adjudicate legal disputes, and otherwise administer justice.
The U.S. judiciary comprises a system of state and federal courts, tribunals, and administrative bodies, as well as the judges and other judicial officials who preside over them.
Every society in human history has confronted the question of how to resolve disputes
The Politicizing of American Jurisprudence
An old saying goes, "A judge is a lawyer who knew a governor (or senator or president)." The inference is unavoidable: judges are political creatures. From many of the nation's law professors to leading members of its foremost bar association, some legal experts think this assertion is regrettably all too true.
Only federal judges and a handful of state judges are appointed for life, barring impeachment. In all other states and in local governments, most judges are elected by popular vote for a specific term. Voters tend to elect persons who share their views. The same is true for most gubernatorial appointments, although in many states this tendency is tempered by senatorial confirmation. Inescapably, the development of platforms that represent the most popular, prevailing, or promising views is a political process.
In the words of John Adams's Massachusetts constitution, it has always been the desire to make judges "as free, impartial and independent as the lot of humanity will admit." In a political system where party politics are defined by social issues and where jurisprudence affects those issues, however, party alignment of judges seems inevitable, either by default or by declaration. The extent is arguable, but few would deny that judges assume the bench based on how others perceive they will run the court: conservatively or liberally.
Ostensible checks and balances exist, of course. All judges are expected to follow ethical standards requiring disinterested and unbiased opinions, which most do. Most states have a code of judicial conduct and/or ethics for this purpose, generally fashioned from that of the american bar association (ABA). These codes proscribe many instances of campaign conduct for prospective and current judges. Judges cannot personally solicit or accept campaign funds and often are prohibited from identifying themselves with any political party. Typically, they must run on a non-partisan ticket.
But nothing prevents political action committees (PACs) from making campaign contributions to judges. Some scoff at the imposition of limits. "If PACs are limited, people go out and create more PACs," explained Dick Wilcox, president of the Business and Industry Political Education Committee in Mississippi. "If wealthy individuals are restricted, they give money to their secretaries, wives, or children to contribute." Contributions add up: Michigan spent $16 million on judicial elections in 2000 alone. In Georgia in 2002, races for two Supreme Court seats garnered more than $700,000.
Electing judges, however, is unnecessary. As an alternative, some point to the pioneering Missouri system. Under this system a governor appoints all state trial and appellate judges with the advice and consent of the legislature. Still another variation seeks to further depoliticize such choices by requiring a governor to select among nominees submitted by a selection panel or special nominating committee.
Support for reform is growing. In Michigan, Senator Ken Sikkema introduced a bill in 2001 for a Constitutional amendment allowing the governor to appoint justices to a single 14-year term, an idea favored by state supreme court justice Elizabeth Weaver. More dramatically, the ABA has called for a sweeping overhaul of the current state system. In 2003, the ABA Commission on the 21st Century Judiciary warned that partisanship over the courts was escalating to crisis levels. Among 23 recommendations, the commission called for limiting judges to service of either one long term or until a specific age, without eligibility for retention or reelection. Such limits are needed to "inoculate America's courts against the toxic effects of money, partisanship and narrow interests," the commission declared. (Justice at Stake Campaign. "ABA Commission Warns: State Court Systems at Risk." March 2003.)
Advocates of reform say it may cure other ills and weaknesses, too. Reform might eliminate so-called "negative campaigning." Michigan Supreme Court Chief Justice Maura Corrigan believes negative campaigns create perceptions among voters that justices are "bought" by special interests. Moreover, judges may lose independence out of fear that certain opinions will be used against them in negative campaign ads.
Another blemish that might be cured is that of real or perceived lawyer lobbying. For years, attorneys—particularly plaintiffs' lawyers—have outspent the largest oil and automotive companies in judicial campaign contributions. The ABA has spoken out sharply against attorneys contributing to campaigns of judges before whom they do frequent business or from whom they wish to gain court-appointed business. Yet just like other campaign contributors, attorneys are exercising their speech rights under the first amendment.
Concerns about politicization of the judiciary soared during the unusual 2000 presidential election. When Florida circuit judge Nikki Ann Clark, an African American and a Democrat, was assigned one of the election cases seeking to invalidate as many as 15,000 absentee ballots from Florida's Seminole County, candidate george w. bush's attorneys requested that she recuse herself from the case. Just weeks before, Bush's brother, Republican Florida governor Jeb Bush, had bypassed her for a state appellate court vacancy. She refused to recuse herself, issuing a decision unfavorable to Bush and favorable to Florida's African–American voters. After her decision was upheld by both the appellate court and the Florida Supreme Court, critics complained that their justices had been appointed by Democratic governors.
Both sides, in fact, found much to complain about. After a sharply divided U.S. Supreme Court reversed the Florida Supreme Court and halted the manual recount of votes (bush v. gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 [U.S. 2000]), critics of the decision scathingly denounced it as politically motivated. In fact, 524 U.S. law professors at 120 American law schools took out an ad in The New York Timescriticizing the majority for "acting as political proponents for candidate Bush, not as judges." (People for the American Way Foundation. "524 Law Professors Say" 2001.) Other critics seized upon an alleged remark by Supreme Court Justice Sandra Day O'Connor, reported in the January 1, 2001, issue of Newsweek. "This is terrible," Justice O'Connor is supposed to have said upon learning that Gore was ahead. Only a Bush victory would have allowed her to retire knowing that a conservative replacement would be found for her on the Court.
"ABA Commission Warns: State Court Systems at Risk." 2003. Justice at Stake Campaign. (March). Available online at <www.justiceatstake.org/contentViewer.asp?breadcrumb=3,358> (accessed July 15, 2003).
"Bush v. Gore and the Conservatives: Gary Rosen & Critics." 2003. Commentary 113 (March).
Ezzard, Martha. 2002. "Money Can't Buy Judicial Elections Yet." The Atlanta Journal and Constitution (August 18): G3.
Law Professors for the Rule of Law. 2001. "524 Law Professors Say by Stopping the Vote Count in Florida, the U.S. Supreme Court Used Its Power to Act as Political Partisans, Not Judges of a Court of Law." Advertisement. Available online at <www.the-rule-of-law.com/archive/supreme/viewad.html> (accessed July 15, 2003).
among its members. Many early societies chose a private system of revenge for dispute resolution. As civilization gradually evolved, and the system of revenge was perceived as counterproductive to society, communities began designating individuals to resolve disputes in accordance with established norms and customs. These individuals were usually leaders who were expected to exercise their judgment in an impartial manner.
The origins of judicial action, judicial power, and judicial process may be traced to the first communities that relied on neutral third parties to resolve legal disputes. Judicial action is any action taken by a court or other judicial body to interpret, apply, or declare what the law is on a particular issue during a legal proceeding. It is also the action taken by a judicial body to settle a legal dispute by issuing an opinion, order, decree, or judgment. Judicial power is the authority of a court to hear a particular lawsuit or legal dispute, and take judicial action with regard to it. Judicial process is the procedures by which a court takes judicial action or exercises its judicial power.
Ancient Greece, one of the earliest known societies in Western civilization, employed a combination of judicial procedures. Greek rulers, known as arkhons, were empowered to hear a variety of disputes, as was the agora, a group of respected elders in the community. A court known as the Areopagus heard murder cases, and direct retaliation by private citizens was still permitted in many civil disputes. The judicial powers of these institutions were gradually replaced by the Ekklesia, an assembly of six thousand jurors that was divided into smaller panels to hear particular cases.
Juries played an integral role in the development of the English judicial system. As more legal disputes were submitted to juries for resolution, this system became more self-conscious. Concerns were expressed that both judges and juries were rendering biased decisions based on irrelevant and untrustworthy evidence. Litigants complained that trial procedures were haphazard, arbitrary, and unfair. Losing parties sought effective remedies to redress erroneous decisions made at the trial court level. Each of these concerns has manifested itself in the modern judicial system of the United States.
The blueprints for the U.S. judiciary were laid out in 1789. During that year the U.S. Constitution was formally adopted by the states. Article III of the Constitution delineates the general structure of the federal judicial system, including the powers and obligations of federal courts. The judiciary act of 1789 (1 Stat. 73 [codified as amended in 28 U.S.C.A.]) fleshes out many details of federal judicial power that were not addressed by the Constitution. The blueprints for the state judicial systems were created similarly by state constitutional and statutory provisions.
The U.S. judicial system has three principal characteristics: it is part of a federalist system of government, it has a specific role under the federal separation-of-powers doctrine, and it is organized in a hierarchical fashion.
The judiciary is part of a federalist system in which the state and federal governments share authority over legal matters arising within their geographic boundaries. In some instances both state and federal courts have the power to hear a legal dispute that arises from a single set of circumstances. For example, four Los Angeles police officers who were accused of participating in the 1991 beating of speeding motorist Rodney G. King faced prosecution for excessive use of force in both state and federal court. In other instances a state or federal court has exclusive jurisdiction over a particular legal matter. For example, state courts typically have exclusive jurisdiction over matrimonial law, and federal courts have exclusive jurisdiction over bankruptcy law.
Under the separation-of-powers doctrine, the judiciary shares power with the executive and legislative branches of government at both the state and federal levels. The judiciary is delegated the duty of interpreting and applying the laws that are passed by the legislature and enforced by the executive branch.
Article I of the U.S. Constitution grants Congress its lawmaking power, and Article II authorizes the president to sign and veto legislation and to execute laws that are enacted. Article III grants the federal judiciary the power to adjudicate, among other things, lawsuits that arise under the Constitution, congressional law, and treaties with foreign countries.
Federal judges, including Supreme Court justices, are not elected to office. Instead, they are appointed to office by the president of the United States with the advice and consent of the Senate. Once appointed, federal judges hold office for life, unless they resign or are impeached for "Treason, bribery, or other High Crimes and Misdemeanors" (U.S. Const. art. II, § 4).
The lifetime appointment of federal judges is controversial. On one hand, the federal judiciary runs the risk of growing out of touch with popular sentiment because it is being immunized from the electorate. On the other hand, it is considered necessary for the judiciary to remain independent of popular will so that judges will decide cases according to legal principles, not political considerations.
In many states judges are elected to office. Nonetheless, each state constitution similarly delegates powers among the three branches of government. Accordingly, judges are still expected to decide cases based on the law, not the political considerations that the executive and legislative branches may take into account in executing their duties.
The U.S. judiciary is a hierarchical system of trial and appellate courts at both the state and federal levels. In general, a lawsuit is originally filed with a trial court that hears the suit and determines its merits. Parties aggrieved by a final judgment have the right to appeal the decision. They do so by asking an appellate court to review the decision of a trial court.
The structure of state court systems varies by state, but four levels generally can be identified: minor courts, major trial courts, intermediate appellate courts, and state supreme courts. Minor courts handle the least serious cases. For example, municipal courts handle city ordinance violations, such as speeding tickets and parking violations. Cases that involve state constitutional issues, state statutes, and common law are dealt with by major trial courts. For example, felony cases, such as murder or rape, would be handled in a major trial court. Trial courts are called by different names in different states. For example, in Pennsylvania they are called courts of common pleas.
Intermediate appellate courts, called courts of appeals, review cases that have been decided by trial courts. They do not hear new evidence; they decide whether the lower court (the trial court) correctly applied the law in the case. State supreme courts review cases that deal with state law. The decision of the court is final since the state supreme court is the ultimate arbiter of state laws and the state constitution. Supreme courts are called by various names depending on the state. For example, West Virginia calls its state supreme court the Supreme Court of Appeals.
Federal cases, including civil and criminal, are handled by federal district courts. There are 94 district courts, with at least one in each state, as well as a district court for the District of Columbia, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands. The number of judgeships appointed to each district is laid out in Title 28, Section 133 of the U.S. Code, which is a compilation of the permanent laws of the United States.
The 94 districts are divided into 12 regional circuits. Each of these circuits has a U.S. court of appeals, also called a circuit court. U.S. courts of appeals were created by the Evarts Act of 1891 (28 U.S.C.A. § 43); the central location of each court is determined by statute (28 U.S.C.A. § 41 ). Each federal appellate court has jurisdiction over a certain geographic area, and may hear appeals only from federal district courts within that jurisdiction. The Court of Appeals for the Federal Circuit, however, has nationwide jurisdiction to handle certain kinds of cases, including patent cases and those that involve trade with other countries.
The Supreme Court is the nation's highest appellate court. It is sometimes called the "court of last resort" because once the Court reviews a case, and renders a final judgment, further appeals cannot be made. The nine justices who sit on the Supreme Court review cases that begin at either the federal or state level. These cases usually focus on important issues involving the U.S. Constitution and federal law. The Supreme Court receives its authority from Article III, Section 1, of the U.S. Constitution, which states that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
Special Courts Not all lawsuits begin in an ordinary court. Both the state and federal governments have established special courts that are expressly designated to hear specific types of cases. For example, at the federal level, the U.S. Court of International Trade handles cases involving foreign business dealings, and the U.S. tax court handles disputes between taxpayers and the internal revenue service (IRS). Examples at the state level include special courts that hear cases involving juveniles (i.e., juvenile court) or cases involving domestic issues (i.e., family courts). Specialized courts have also been created to hear appeals. For example, the Court of Military Appeals was established in 1950 to review court-martial decisions.
Alternative Dispute Resolution and Administrative Agencies In certain areas of law, litigants are prohibited from beginning a lawsuit in an ordinary trial court unless they first exhaust other methods of dispute resolution through an administrative body. Since the mid-1930s, state and federal governments have created elaborate administrative systems to dispose of certain legal claims before a lawsuit may ever be filed. For example, at the federal level, administrative agencies have been created to oversee a number of disputes involving labor law, environmental law, antitrust law, employment discrimination, securities transactions, and national transportation.
Administrative agencies are created by statute, and legislatures may prescribe the qualifications for administrative officials, including administrative law judges, who are appointed by the executive branch; courts of law; and heads of government departments. These agencies are charged with the responsibility of establishing, developing, evaluating, and applying policy over a given area of law. The body of rules, principles, and regulations promulgated by such agencies and their officials is known as administrative law.
Laws created by state and federal administrative bodies, including adjudicative bodies, are considered no less authoritative than laws enacted by legislatures, decreed by the executive branch, or issued by the judiciary. However, litigants who first exhaust their administrative remedies through the appropriate agency and are dissatisfied with a decision rendered by an administrative law judge, may appeal the decision to an ordinary court of law.
State and federal governments have passed formal rules that set forth the procedures that administrative bodies must follow. The rules governing federal administrative adjudication are provided in the Administrative Procedure Act (5 U.S.C.A. § 551 et seq. ).
Kozlowski, Mark, and Anthony Lewis. 2003. The Myth of the Imperial Judiciary: Why the Right is Wrong About the Courts. New York: New York Univ. Press.
MacDowell, Douglas M. 1978. The Law in Classical Athens. Ithaca, N.Y.: Cornell Univ. Press.
Administrative Law and Procedure; Alternative Dispute Resolution; Appellate Advocacy; Code of Judicial Conduct; Court of Appeal; Court of Claims; Court Opinion; Discretion in Decision Making; Federal Courts; Federalism; Judicial Review; Jury; Original Jurisdiction; Separation of Powers; State Courts.