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Thursday, January 16, 2025

Polarization, but not just polarization

This is the second installment of Chad Oldfather's series of posts on his new book, Judges, Judging, and Judgment.

                As I mentioned in my first post, Judges, Judging, and Judgment (out today!) arose generally out work I’ve been doing for the entirety of my time in legal academia, and more directly out of materials I developed and continually refined for the Judging and the Judicial Process course I’ve consistently taught for over fifteen years. What resulted is thus very much a work of synthesis, a weaving together of strands of in law, philosophy, political science, and psychology in an effort to tease out what ails us.

                It’s plain that we live in a polarized world. It’s nearly as plain that polarization has affected the workings of the judiciary. We’re all Realists now, as the saying has it, and as such are sensitized to the ways in which things other than law, however we define it, can influence decision-making. The Realists led to the Crits and the attitudinalists and in turn to the suggestion that there are Obama judges and Trump judges, all of which is nowadays mostly greeted with a shrug. Chief Justice Roberts of course resisted the suggestion, but I’ve heard federal judges openly acknowledge its truth, including as recently as last week at the AALS annual meeting. Quantitative empirical research supports the claim, and research into cognitive biases and our blindness to them, including especially motivated reasoning, describes the likely mechanism.

                We’ve mostly been taught to believe these realizations are of relatively recent vintage, that until the Realists arrived everyone believed in some form of mechanical jurisprudence. Brian Tamanaha has shown that story to be inaccurate when it comes to the beliefs of those operating within the system. What’s more, the very design of the judicial system likewise suggests that our legal culture has long been mindful of the sway of non-legal influences. Features like the adversarial process, the expectation that decisions will be justified in written opinions, the doctrine of precedent, and the existence of multi-member courts all have historically served to minimize the influence of sloppy and biased thinking. There are external forces as well, things like ethics codes, selection processes, and media coverage. Perhaps most powerful of all are shared norms, tacit understandings of how things are done.

                What’s often overlooked, largely because the erosion has been so gradual, is that the influence of these mechanisms, their ability to channel judicial behavior, has weakened. An earlier generation of scholars and judges decried the delegation of opinion-writing to clerks, the heavy reliance on non-precedential opinions, the vanishing trial, and the bureaucratization of judging. Today they’re largely accepted as just the way things are. Media coverage of the courts once devoted space to description of the competing arguments but tends now almost exclusively to rely on reductionist characterizations of judges as liberal or conservative. Judicial selection has become an overtly partisan affair, and ethical norms appear to hold little sway over the justices on the highest court in the land.

                Meanwhile the profession, reflecting society more generally, has become polarized. To my mind one of the more important books of the last quarter-century is Neil Devins and Larry Baum’s The Company They Keep: How Partisan Divisions Came to the Supreme Court. Their central point is that the justices, like people generally, are significantly influenced by their salient personal audiences. We shape our behavior to meet the expectations of those whose approval we value. For judges, or at least many of them, the salient personal audience is no longer “the legal profession,” but rather an ideologically inflected subset of it. Shared norms serve as a form of dark matter, with a gravitational pull that invisibly influences behavior. When those norms are no longer shared, or when their violation is overlooked in service of expediency, that source of discipline also erodes. Criticism from those on “the other side” can be dismissed as just another partisan gripe.

                The first two-thirds or so of Judges, Judging, and Judgment, the diagnostic portion, explores all of this. It attempts to survey the landscape in a manner that is both comprehensive and concise (and suitable for use in the classroom!). The last third attempts, much more tentatively, to tackle what we might do about it. More on that tomorrow.

Posted by Howard Wasserman on January 16, 2025 at 10:36 AM in Books, Judicial Process | Permalink

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