Law, Politics, and Perception

How Policy Preferences Influence Legal Reasoning

Eileen Braman

• Publisher: University of Virginia Press
• Year: 2009
• Print ISBN: 9780813928296
• eBook ISBN: 9780813928371
• Topic: Politica e relazioni internazionali
• Subtopic: Storia e teoria politica

Are judges' decisions more likely to be based on personal inclinations or legal authority? The answer, Eileen Braman argues, is both. Law, Politics, and Perception brings cognitive psychology to bear on the question of the relative importance of norms of legal reasoning versus decision markers' policy preferences in legal decision-making. While Braman acknowledges that decision makers' attitudes—or, more precisely, their preference for policy outcomes—can play a significant role in judicial decisions, she also believes that decision-makers' belief that they must abide by accepted rules of legal analysis significantly limits the role of preferences in their judgements. To reconcile these competing factors, Braman posits that judges engage in "motivated reasoning," a biased process in which decision-makers are unconsciously predisposed to find legal authority that is consistent with their own preferences more convincing than those that go against them. But Braman also provides evidence that the scope of motivated reasoning is limited. Objective case facts and accepted norms of legal reasoning can often inhibit decision makers' ability to reach conclusions consistent with their preferences.

1
The Case for Investigating Motivated Reasoning in Legal Decision Making

ONE

OUTLINING A THEORY OF MOTIVATED COGNITION IN LEGAL DECISION MAKING

Judges play a special role in our constitutional system. Federal judges, and many state judges, are not elected but appointed by other political actors. Judges do not have the same democratic authority as elected officials to act in accordance with their personal preferences. Neutrality is vital if judges’ decisions are to be accepted and their distributive allocations are to be enforced with the authority of the state. This raises a critical dilemma because judges are, after all, human (Frank 1931a, 1931b). They are bound to have personal preferences, shaped by their ideology, attitudes, and experience, with respect to cases they are asked to decide.

The dilemma is addressed with reference to the unique knowledge judges acquire through their specialized training. We abide their substantial influence in our democratic system because of the expertise judges possess as interpreters of the law. On this view, judges are not free to decide cases according to their personal views because they are constrained by appropriate sources of legal reasoning and cannons of interpretation. Technical training in the tools of legal analysis enable judges to separate reason from personal biases in their deliberations, and it is the predominance of reason that endows judge-made law with legitimacy in our constitutional system.

Notwithstanding the extensive training they experience, there is substantial evidence that the policy preferences of judicial decision makers affect case outcomes. More than a half century of empirical research tells us that judges tend to decide cases in ways that are consistent with their policy predispositions. Indeed, the main thrust of much empirical research on decision making has been to demonstrate the substantial disconnect between what judges do (represented by case votes) and the objective criteria that judges say guides their decisional behavior. To make this point, political scientists researching the courts have borrowed extensively from theory and methods in a sister discipline, psychology.

The Psychological Tradition in Studies of Judicial Behavior

C. Herman Pritchett's 1948 investigation of justices on the Roosevelt Court represents the watershed study prompting judicial scholars to look at personal preferences as a major determinant of judges’ voting behavior. The study is often cited as starting a “second generation” of research in political science, signaling a break between “judicial behavioralists” and those who studied legal decision making using more traditional, doctrinal, techniques (Shapiro 1993; Gibson 1991; Slotnick 1991).

Pritchett analyzed voting behavior of justices on the Court from 1937 to 1947. Classifying cases as involving “labor” or “free speech,” he demonstrated that the justices could be systematically ordered in terms of their support for liberal outcomes in cases that were the subject of his investigation. The study was groundbreaking because it was first to analyze judicial voting behavior rather than explanations the justices authored themselves. It was also the first to explicitly link observed voting patterns to the ideology of the justices.

When it was published, Pritchett's study met with considerable criticism due to the challenge its findings posed to traditional portrayals of Supreme Court decision making. The most serious criticism came from legal scholars who argued that his approach was inadequate to capture the nuances of judicial reasoning. Legally trained scholars argued that merely looking at the way the justices voted, without considering the justification for their decisions, was not adequate to understand the complex process of case-by-case decision making. Early critiques emphasized the fact that legal reasoning is highly contextual—dependent on the facts and issues raised in particular cases. Critics also pointed out that judges on collegial courts often differ in their assessment of what authority should control legal analyses in cases involving multiple issues, rendering Pritchett's single-issue classification scheme too simplistic to capture the complexity of real-world decision making (Mendelson 1963; Tanenhaus 1966).

Despite these concerns, numerous scholars followed Pritchett's lead. There was a distinct rise in the number of behavioral studies of judicial decision making over the next two decades. This trend toward “behavioralism” was influenced by, but distinct from, the “behaviorist” movement that occurred in psychology (McGraw 2000). As part of this trend, researchers in political science continued to move away from legal doctrine, choosing to analyze case votes as the primary observable response to different classes of case stimuli.

This movement away from doctrine was partly strategic; it allowed judges’ behavior to be analyzed across cases by focusing on the outcome choice common to all decisions. More significantly, it reflected a fundamental change in approach where case votes were viewed as a more accurate indication of judicial proclivities than the doctrinal justifications judges gave for their own decisions (Schubert 1962). Many judicial scholars came to view opinions written by judges as an imperfect account of decision making (Pritchett 1941; Spaeth 1961). They argued that the reasons decision makers gave for their outcome choices were subject to manipulation by judges concerned with self-presentation.

As political science broke away from doctrinal approaches to studying decision making, investigators increasingly relied on theory and methods from psychology. The first generation of behavioral studies focused on patterns of dissent and interagreement between justices on the Supreme Court. Findings from these studies showed that particular groups of justices voted together in cases, while others tended to vote in opposition. Judicial scholars explained the existence of identifiable “voting blocs” using extralegal factors. They argued analyses of case votes did not generate the type of random variation one would expect if the justices were engaged in unbiased application of their common legal training. Instead, observed patterns were taken as evidence of attitudinal decision making where like-minded justices voted in concert.¹

Starting in the 1960s, researchers used “scaling” techniques explicitly developed in psychology to conduct more intricate analyses of judicial voting behavior. Originally attitudinal scales were developed as a series of questions in testing instruments to measure constructs like racial tolerance across survey respondents. One famous scale measured the degree of social interaction survey respondents were willing to accept between members of different races. Questions that described various levels of contact between people with distinct racial backgrounds were grouped together and ordered for analysis.² Typically, survey respondents manifested a “breakpoint”; as the behavior in questions became more intimate, responses would shift from “acceptant” to “not acceptant” of the interracial contact questions described. Different respondents manifested unique breakpoints. Individuals who demonstrated a willingness to accept a greater number of increasingly close interactions were categorized as having higher levels of racial tolerance (Bem 1972).

In studies of judicial behavior, researchers analyzed case votes rather than responses to survey questions, but the underlying logic was the same. According to this approach, cases involving different underlying issues represented distinct classes of stimuli. Similar cases could be grouped together and scaled like the questions on psychological testing instruments. Scaling studies demonstrated Supreme Court justices, like participants in psychological survey research, manifested unique breakpoints with regard to scaled cases involving similar legal issues.³

Schubert (1962) formalized the first attitudinal theory of judicial behavior to explain such findings. Explicitly borrowing from psychology, he posited that case outcomes were determined by where in an attitudinal “issue space” a dispute fell in relation to the justices’ preferences. Later Murphy (1964) offered an explanation incorporating the concept of goal-directed behavior, suggesting that judges act strategically to obtain desired outcomes. Rohde and Spaeth (1976) took this idea further, adding the controversial insight that policy goals trump legal considerations in judges’ decision making.

To date, Segal and Spaeth's “attitudinal model” (1993, 2002) is the most comprehensive statement of the role policy preferences play in judicial decision making. Their model builds on earlier theoretical works and adds substantially to them by offering a detailed account of how it is that judges are free to make decisions consistent with their preferences, in direct contrast to the role they are expected to play in our constitutional system.

Explicitly invoking stimulus/response (S-R) principles from behaviorist psychology, Segal and Spaeth argue that judicial voting behavior is driven by judges’ attitudinal responses to differential case stimuli (1993, 215). Judges’ choices are determined by their policy preferences concerning the issues raised in litigation. They argue that Supreme Court justices are free to act in accordance with their preferences because they are appointed for life and, therefore, they are not democratically accountable for their decisions.⁴ In making this argument, Segal and Spaeth turn democratic theory on its head. They argue that the measures the Framers took to insulate judicial actors from politics so they could make decisions based on their expert interpretation of the law have the exact opposite effect, freeing judges to make decisions consistent with their political preferences.

According to these authors, the law does not constrain judicial actors in any meaningful way. Instead, the adversarial nature of our legal system facilitates policy-directed behavior because it allows judges to pick and choose authority from arguments made by competing parties. Thus, judges do not use legal authority to reason through cases; the law serves as a post hoc justification for choices consistent with their political policy preferences.

Like Pritchett's research, Segal and Spaeth's account of judicial decision making has met with resistance from some legal scholars (Kahn 1994; Cross 1997). For many political scientists, however, Segal and Spaeth's attitudinal model, and the substantial evidence they have amassed to support it, represents the culmination of fifty years of behavioral research on the role of attitudinal forces in legal decision making.

Current Trends and Lingering Questions

The role of policy preferences having been firmly established, political science seems to have moved on to a “third generation” of research (Shapiro 1993). Scholars who study the courts have been influenced by the trend that is occurring in political science more broadly. They are increasingly turning to game theory and utility maximization models to explain judges’ behavior. As a result, current research is influenced more by economic theory than psychology (Epstein and Knight 2000; Bonneau and Hammond 2005).

Today most political scientists take for granted that attitudinal considerations predominate in judges’ decisions. Investigating the law as a constraint on decision making has taken a back seat to looking at how other institutions shape judges’ behavior. Rather than seeking to establish that personal preferences influence voting behavior, per se, judicial scholars are interested in understanding how forces like decision rules (Hall and Brace 1989), the preferences of other judges (Epstein and Knight 1998) or actors in other democratic branches (Spiller and Gely 1992) moderate the expression of judges’ policy goals in decision making.

This shift toward explaining judicial behavior with rational choice models leaves a significant question scholars have not yet addressed, or, more accurately, have “skipped over” in the rush to assess the influence of institutional forces on judicial behavior: If judges say (and believe) they are using objective tools of legal analysis to decide cases, how is it that policy preferences exercise such a strong and consistent influence on their outcome choices?

Specifically, scholars who study judicial behavior have treated the process of legal reasoning like a “black box,” remaining content with demonstrating a connection between attitudes and case votes without fully understanding the mental processes that underlie the relationship. The “black box” metaphor is borrowed from cognitive psychologists, who argued that their own discipline should move beyond the S-R paradigm to achieve a richer understanding of the mental processes underlying observed patterns of behavior. Starting in the 1950s, psychologists began to do just that, resulting in what is referred to as the “cognitive revolution” in psychology. Research on judicial behavior, however, never moved beyond the S-R paradigm. Instead, scholars continued to focus on judicial votes as the primary response to differential case stimuli without delving further into how judges arrive at those responses in the process of complex decision making.

In an especially thoughtful assessment of the contributions and limits of the behavioral paradigm, Rowland and Carp (1996) lament the failure of judicial scholars to make the leap from behavioral to cognitive approaches to understanding decision making: “Given the obvious implications of psychology's cognitive perspective for judicial decision making, one could have anticipated an explosion of inquiry that paralleled the parent discipline's more general inquiry into social cognition….Unfortunately, however, the anticipated inclusion of cognitive processes into the attitudinal model never took hold in political science” (144).

There are several reasons judicial scholars did not make the transition from behavioral to cognitive approaches. First, investigating mental processes requires researchers to “get inside the heads” of individuals they are interested in studying. Judges, as elite decision makers, pose a knotty problem of access. Moreover, they are notoriously secretive about how they go about reaching decisions. Finally, strong norms discouraging judges from divulging policy views and rendering decisions in hypothetical cases make it highly unlikely that they would be willing participants in the kind of experimental studies widely utilized in cognitive psychology.⁵

To overcome similar obstacles, psychologists and political scientists have used content analysis techniques to investigate the reasoning processes of other elites studied at a distance.⁶ Because judicial scholars remain highly skeptical of the doctrinal explanations judges give for their own decisions, however, few have engaged in the rigorous content analysis of case opinions.⁷

Finally, at precisely the time one might have expected scholars to delve deeper into decision-making processes, rational choice models took hold in the discipline (Shapiro 1993; Slotnick 1991). The assumption that judges were single-minded seekers of policy was calcified because it was convenient for scholars applying game theoretic models to judicial behavior. Consequently, the question of how judges arrived at those decisions seems to have been glossed over.

Taking Norms Seriously: A Theory of Motivated Reasoning in Legal Decision Making

One problem with much of the research on judicial behavior is that it fails to take seriously the idea that judges sincerely believe they are using appropriate legal criteria to reach decisions. Many behavioral scholars have assumed, from overwhelming evidence of attitudinal influence, that policy preferences are driving decision processes. They have failed to consider the possibility that such findings could be a reflection of the fact that there are many ways attitudes can influence legal reasoning as decision makers try to use legal criteria to achieve norm-appropriate ends.

Rowland and Carp argue, “if the study of political jurisprudence is to move beyond its current comfort zone, we must develop a theory of judicial behavior that can accommodate political and jurisprudential influences without assuming away the judicial reasoning process” (1996, 136). The time has come to get a more sophisticated understanding of how judges reach decisions that are consistent with their preferences in the context of using legal criteria they see as central to the appropriate exercise of their own authority. Toward this end, I suggest a different approach to studying attitudinal influence in legal reasoning. The goal is to see how attitudes affect the cognitive processes of decision makers as they make choices within the confines of accepted decisional rules. This book differs from others in that the main focus of the inquiry in on legal decision making. Although many of the intuitions guiding my hypotheses come from findings about judges, I am less interested in judicial behavior, per se, than in exploring how people think in the context of complex norms.

Borrowing Segal and Spaeth's intuition, I test the idea that individuals may engage in motivated reasoning when thinking about legal authority. Starting with the premise that decision makers believe they are employing appropriate tools of legal reasoning, I investigate how decision makers with different views make legal judgments given identical case information. I use experimental methods to investigate how policy preferences interact with case characteristics and the norms of legal decision making. The goal is to gain a more sophisticated understanding of the possible mechanisms for motivated reasoning and to discover their limiting conditions.

This conception of influence falls squarely on the “sincere” side of the debate about whether decision makers are sincere or strategic pursuers of policy outcomes. It has two main components that distinguish it from other theories of attitudinal influence. First, I posit that because legal decision makers have been subject to strong socialization emphasizing the importance of stylized rules of legal reasoning, they sincerely believe they are utilizing appropriate norms of legal analysis when making judgments. Indeed, their primary goal in making these decisions is to achieve “legal accuracy” within the confines of accepted decisional norms. Second, I allow for the influence of sincere preferences, positing that “directional” (policy) goals can influence legal reasoning processes in subtle ways such that decision makers themselves may be unaware of their influence. Consistent with evidence from psychology demonstrating limits on motivated decision processes, I propose that the law can inhibit attitudinal behavior where it prevents decision makers from constructing “reasonable justifications” for their attitudinally preferred outcome choices (Segal and Spaeth 1996b, 1075, quoting Kunda 1990).

To be clear, my approach to understanding legal decision making represents both an expansion and a significant departure from Segal and Spaeth's psychological account of legal behavior. Motivated reasoning is by no means central to Segal and Spaeth's theory of decision making. In fact, they do not mention motivated reasoning in their initial book on the attitudinal model (1993). It is first mentioned in a symposium where they pit the model against more traditional modes of decision making (Segal and Spaeth 1996a, 1996b).

Moreover, when...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication Page
• Contents
• Acknowledgments
• Introduction
• Part 1 - The Case for Investigating Motivated Reasoning in Legal Decision Making
• Part 2 - Testing the Mechanisms
• Appendixes
• Notes
• References
• Index