Law, Politics, and Perception: How Policy Preferences Influence Legal Reasoning

Notes

Introduction .  U.S.  (). . Newdow,  U.S.  at  (quoting, complaint). . A “threshold issue” is one a court must decide before it can hear a matter or invoke a particular standard of review. See chapter  for further discussion. ONE Outlining a Theory of Motivated Cognition in Legal Decision Making . Some of the most significant early studies using bloc analysis techniques include: Pritchett (), looking at patterns of agreement for all justices on the Court from  to ; Spaeth (), discussing levels of “ideational” agreement between particular pairs of justices; and Ulmer (), explaining subgroup formation in terms of fluid case “coalitions” and more stable policy “cliques.” . For instance, scaling-study respondents may be asked questions such as: () Would you be willing to work in the same office as someone of another race? () Would you invite someone of a different race over to your home for dinner? () Would you accept it if your son/daughter dated someone from another race? () Would you accept it if your child married someone from a different race? . Some of the most prominent research efforts demonstrating the importance of preferences in judicial voting behavior have used scaling techniques. Examples include Ulmer’s () study looking at civil liberties cases in the s; Schubert’s () study creating the “C” (civil liberties), “E” (economic liberalism), and “F” (fiscal) scales to explain votes of the justices during the Court’s  term; Rohde and Spaeth’s () book using cumulative scaling techniques to predict the votes of justices in cases arrayed along “freedom,” “equality,” and “New Dealism” scales, and Segal and Spaeth’s () study looking at the voting behavior of judges on the Supreme Court over eleven issue areas. . Segal and Spaeth’s model is specifically designed to explain the behavior of Supreme Court justices. The authors leave open the possibility, however, that the model has broader application, stating, “it is our judgment that the attitudinal model will explain the decision making of other courts to the extent the environment on these courts approximates that of the Supreme Court” (, xv). . There is a series of impressive experiments by Rachlinski and his colleagues with federal magistrate and specialized judges that looked at things like susceptibility to anchoring and prospect theory in damage awards and settlement negotiations (see, for NOTES 204 Notes to Pages – instance, Guthrie, Rachlinski, and Wistrich ; Wistrich, Guthrie, and Rachlinski ). Significantly, however, judges in these studies are not asked to divulge their political preferences. . See, for example, Tetlock (, ), looking at cognitive styles of U.S. senators and members of the British House of Commons through content analysis of speeches and debates; Winter (), looking at motives of U.S. presidents by analyzing inaugural speeches; and Kaarbo and Hermann (), comparing cognitive styles of prime ministers using spontaneous utterances reported in the media. . This is changing a bit with the advent of sophisticated software systems designed to detect linguistic patterns in large volumes of text. Prior to the availability of such programs , a handful of systematic content analyses were conducted, mostly by psychologists interested in decision-making phenomena (see, for instance, Gruenfeld ; Gruenfeld, Kim, and Preston ; and Tetlock, Bernzweig, and Gallant ). . The influence of this self-selection is further magnified by the institutional and self-selection noted by Posner (discussed below) regarding the “types” of individuals that become judges. See Eagly and Johnson () for general discussion of self- and institutional selection processes. . “Resocialization” is a term used in sociology to describe the process by which certain institutions indoctrinate new members. In its most extreme form, it can involve an attempt to “break down” prior personality traits, beliefs, and/or modes of behavior and replace them with role-appropriate traits, beliefs, and behavior. Many law schools still use the Socratic method to accomplish this task (which some consider only slightly less harrowing than techniques used by the military to resocialize new recruits). Admittedly, the resocialization that occurs in law school is not as all-encompassing as that which might occur in other institutions like the military. But the comparison is not wholly inappropriate; moreover, it is not entirely original (see Scott Turow’s One L for a popular account of the resocialization that occurs in the first year of law school). . Political scientists refer to this as the “d-term” or “duty” term in models of voting behavior. Of course, judicial votes generally yield more influence. Therefore, the utility judges derive from voting is a composite of values, one of which is purely consumptive. . See, generally, Moscovici ; and Nemeth ; see also...