What motivates U.S. federal judges and the types of decisions they make? While for a great deal of time, many judicial commentators have maintained that translating their own political values into law is the prime motivator for federal judges, Lee Epstein and Jack Knight disagree. Looking at the U.S. courts over the past 60 years, they find evidence that policy-centric accounts can no longer explain judicial behavior. They argue that judges are motivated by aspects of job satisfaction, external satisfaction, leisure, salary, and promotion – not just by ideology

Epstein, Lee

Knight, Jack

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blogs.lse.ac.uk http://blogs.lse.ac.uk/usappblog/2013/10/22/federal-judges-preferences/U.S. federal judges are motivated by much more than puttingtheir policy and political preferences into law.What motivates U.S. federal judges and the types of decisions they make? While for a great dealof time, many judicial commentators have maintained that translating their own political valuesinto law is the prime motivator for federal judges, Lee Epstein and Jack Knight disagree.Looking at the U.S. courts over the past 60 years, they find evidence that policy-centric accountscan no longer explain judicial behavior. They argue that judges are motivated by aspects of jobsatisfaction, external satisfaction, leisure, salary, and promotion – not just by ideology.Among political scientists not only is it uncontroversial to say that U.S. federal judges—especiallyU.S. Supreme Court justices—seek to etch their political values into law; it would be near heresyto suggest otherwise. And yet we do just that because research conducted by scholars (mostlyoutside of political science) has demonstrated that the policy goal isn’t the only motivation; it maynot even be dominant for many judges.The evidence is now so strong that it poses a serious challenge to the extremely (un)realist(ic)conception of judicial behavior that has dominated the (political science) study of law and legalinstitutions for generations.The evidence comes not only from empirical studies but also from facts that strike us as difficult to explain withreference only to policy motivations. First, since 1946 the U.S. Supreme Court has decided over a third of itscases by a unanimous vote (Figure 1). Unless the Court is full of justices who share the same ideology—almostnever the case—something other than or perhaps in addition to ideological goals must be driving this behavioralregularity. (We also observe very low dissent rates on the U.S. courts of appeals, even on ideologically diversepanels.) Figure 1 – Percentage of Supreme Court Unanimous Decisions, 1946-2010Source: U.S. Supreme Court Database, with decision Type=1,6, or 7.Second, how should we think about the extraordinary success of the United States government, which is usuallyrepresented by the Solicitor General (SG) in the Supreme Court (see Figure 2)? By their own admission, scholarsadvocating the policy goal cannot explain these data, and for good reason. As Black and Owens demonstrate, theSG’s influence stems not from ideological congruence but from the office’s professionalism and objectivity—explanations that are hard to square with the image of justices as politicians in robes.Figure 2 – Percentage of Wins for the U.S. Government, by Chief Justice Era, 1946-2010 TermsSource: Provided to the authors by Ryan Black and Ryan Owens.A third fact seemingly incompatible with policy-centric preferences is the decline in the Court’s plenary docket (thenumber of opinions issued after full plenary consideration).  As Figure 3 shows, the number of petitions grantedhas fallen from 255 in 1970 to 76 in 2009; the percentage granted has also taken a nosedive, from 6 percent in1970 to less than 1 percent in 2009. Wouldn’t policy-oriented justices want to hear more rather than fewer casesso that they could leave their mark on wider swaths of the law?Figure 3 – Number of Cases on the Plenary Docket and Fraction Granted, 1970-2009 TermsSource: Lee Epstein, et al. The Supreme Court Compendium (2012)Skepticism over the exclusive focus on policy preferences is not new; four decades ago, Judge Richard A. Posnerraised the possibility that “judges, like other people, seek to maximize a utility function that includes monetary andnonmonetary elements (the latter including leisure, prestige, and power).” Later, to the question “What Do JudgesMaximize?,” Posner had a simple response: “The Same Thing Everybody Else Does”—their own self-interest,which may include imposing their policy preferences on the law but so much more.We agree. Policy-centric accounts simply can’t explain important aspects of judicial behavior. So what does? Byour count, commentators have offered (or found evidence consistent with) some 20-odd goals, motives, andpreferences, ranging from “reasoning utility” to discretion  to income. To consider all of these would be to continueto undermine the project of developing a more realistic conception of judicial behavior. The enterprise woulddevolve into “what-the-judge-ate-for-breakfast” accounts (but see this), not to mention limit generalizability.Moreover, considering every goal is unnecessary. We believe it is possible to construct a more realisticconception of judicial motivation that expands the set of relevant motivations while continuing to facilitate thepursuit of general explanations of judicial decisions. An advance toward a more realistic conception of judicialmotivations is offered by Posner and developed more fully by Epstein, Landes, and Posner. This researchintroduces the importance of personal motivations for judicial choice without downgrading the political scientists’emphasis on ideology or the law community’s interest in legal motivations.The basic argument is as follows. Because there are only 24 hours in a day, judges must decide how to allocatetheir time among judicial activities (e.g., hearing and deciding cases, working with colleagues and staff), non-judicial work (e.g., writing books, participating in conferences, teaching), and leisure. Given time constraints,judges seek to maximize their preferences over a set of personal factors (most of which also have implications forideological and legal goals):(1) Job satisfaction. By this we mean “the internal satisfaction of feeling that one is doing a good job” as well asthe more social dimensions of judicial work, such as relations with other judges, clerks, and staffs. Surelymaximizing policy preferences is part and parcel of a judge’s internal satisfaction with the job but it is not the onlyinfluence. Another is the discretion a judge enjoys. As for the social dimensions, judges frequently refer to theimportance of collegiality, and just as frequently, scholars reject it. We should not. As most of us know all too well,maintaining good collegial relations is not some abstract squishy concept; it has a direct effect on job satisfaction.(2) External satisfactions. Many studies emphasize the external satisfactions that come from being a judge,including “reputation, prestige, power, influence, and celebrity.” Some of these are likely related to the policy goal.But the quest for external satisfaction can take more direct forms. Levy argues that “reputation seeking behavior”is a “human concern” that academics certainly pursue and judges do too.In the formal economics literature, there is a long-standing debate over the extent to which reputation (or power-seeking) judges ought to be followers (by applying existing doctrine) or more avant-garde. Either way, thisliterature reinforces the idea that there is a more important connection between law and the decisions judgesmake than an exclusive focus on ideology allows.(3) Leisure. A preference for leisure plays almost no role in the political science literature but it comes to the forein many economic analyses of judging.  If these accounts are right, we would expect judges to engage inbehaviors designed to increase or, at the least, protect their existing leisure time. The decline in the U.S. SupremeCourt’s plenary docket may be an example (see Figure 3). In general, though, leisure will be of greater concern forjudges with heavier workloads and less staff than the Supreme Court. In addition to decreasing leisure time,backlogs can decrease respect and thus external satisfaction, not to mention job satisfaction. Along these linesCohen reports that district court judges with heavier dockets were more likely to invalidate sentencing guidelineson the theory that the guidelines would discourage plea bargaining and, thus, increase trials.(4) Salary/income. All else equal, judges, like most of us, prefer more salary, income, and personal comfort toless. And the empirical literature provides some evidence that they attempt to maximize these goals by acting inways consistent with the preferences of their “bosses”—of which the legislature is certainly one. Because electedrepresentatives control raises, court budgets (and so, for example, can augment or reduce the number of staff),and pension plans, it is not surprising to find some deference to their preferences.(5) Promotion. Promotion would seem to be an important factor influencing the personal utility that judges gainfrom their work. It could be coincident with policy preferences: the higher judges sit in the hierarchy, the moreimportant the cases they hear and the greater the opportunity to influence the law. So too, promotion tends toincrease job satisfaction, prestige and reputation, and, of course, salary. Perhaps this explains the growingnumber of empirical studies showing that judges motivated by the possibility of promotion to higher status (andpaying) jobs —the “auditioners”— make choices based on their interest in advancement. For example, Epstein,Landes & Posner show that auditioners, not wanting to appear soft on crime, impose harsher sentences oncriminal defendants.The upshot of this is that there is now a large and growing body of empirical literature providing evidence for (or atleast consistent with) each of these elements in the judge’s personal utility function.Assuming you find the evidence as compelling as we do, the question becomes: what now? How can we movetoward a more realistic conception of judicial behavior? For starters, political scientists should dismiss theattitudinal model qua model. Because it focuses exclusively on ideological (or, in some applications, partisan orpolitical) motives, it cannot form the basis for a realistic conception of judicial behavior. This is not to say that theattitudinal model hasn’t produced important insights into judicial decision making. The evidence of ideologicalvoting is too extensive to ignore as we move forward. But ideological motivations are just one of several kinds ofmotivations that should be incorporated into a realistic and comprehensive conception of judicial behavior.Next, we must begin to flesh out the details of a motivational model of judges that would form the basis of a morerealistic conception. If the process of judicial decision making is best characterized as a complicated mix ofmotivations, then the motivational framework should allow us to accommodate this complexity and, perhaps, todistinguish the conditions under which different types of motivations apply.At the end of the day, we realize that we’re calling for nothing short of a restructuring of the very foundation of the(political science) study of judging. But this should be a cause for celebration, not dismay. In reimagining ourcorner of political science, there will be plenty of challenges, yes, but plenty of opportunities for new theoretical,empirical, and substantive breakthroughs. U.S. Supreme Court Credit : OZinOH (Creative Commons BY NC)This article is based on the paper “Reconsidering Judicial Preferences” from the May 2013 Annual Review ofPolitical Sciences. Please read our comments policy before commenting.    Note:  This article gives the views of the authors, and notthe position of USApp– American Politics and Policy, norof the London School of Economics.Shortened URL for this post: http://bit.ly/18G0GQ3_________________________________About the authors Lee Epstein - University of Southern CaliforniaLee Epstein is the Provost Professor of Law and PoliticalScience and the Rader Family Trustee Chair in Law at theUniversity of Southern California. She is also now servingas a Phi Beta Kappa Visiting Scholar, a GuggenheimFellow, and a Lecturer in Law at the University Chicago.Professor Epstein is a Fellow of the American Academy ofArts and Sciences and the American Academy of Politicaland Social Science.Jack Knight – Duke Law SchoolJack Knight is the Frederic Cleaveland Professor of Lawand Political Science at Duke University. His scholarlywork focuses on modern social and political theory, lawand legal theory, and political economy. He holds a joint appointment with Duke Law School andDuke’s Trinity College of Arts and Sciences, where he teaches in the Politics, Philosophy andEconomics Program.CC BY-NC-ND 3.0 2014 LSE USAPP

U.S. federal judges are motivated by much more than putting their policy and political preferences into law

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