Distinguishing Causal and Normative Questions in Empirical Studies of Judging

In this essay, I raise a meta-theoretical question concerning the relation between two distinct categories of projects that we might be tempted to lump together under the rubric of empirical study of judicial performance. One kind of empirical project aims broadly at developing a social-scientific theory of judging, or identifying the “causes” of legal decisions. Another kind of project aims at identifying quantitative criteria providing an objective basis for evaluating the quality of judicial performance. I attempt to explain the distinction between these two kinds of projects and consider whether the very possibility of success in the former undermines the point of the latter. Would a theory that could predict how any given judge would likely decide any given kind of case obviate the usefulness of general criteria for measuring judicial quality? I argue that the answer is no, because the two projects address fundamentally different questions. This essay was written for the Workshop on Evaluating Judges, Judging, and Judicial Institutions at Duke Law School

The Future of Section 2 of the Voting Rights Act in the Hands of a Conservative Court

This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices’ policy goals and ideological preferences - namely, their personal disdain for the use of race in public life - will guide the Court’s conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying to prognosticate the future of the Act. Instead, it is far more intrigued by the many lessons that the fate of the Act offers about the Court as an institution; the Court’s treatment of colored communities and their interests; and the role political attitudes play in guiding judicial behavior. As the Court continues to position itself at the center of many political controversies, these lessons gain greater urgency