Notes on a Theory…

Thoughts on politics, law, & social science

Joseph Tanenhaus on Judicial Decisions and Political Science

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In my investigation of how scholars of judicial politics adopted the decision as the core concept of the thing to be explained, part of my argument has been that this wasn’t unique to the behavioralists, but was true of ‘traditionalists’ as well.  Joseph Tanenhaus, a participant in this conflict, agrees, in his Journal of Politics article “Supreme Court Attitudes Toward Federal Administrative Agencies” (1960). It’s easy to get distracted by the dispute between quantitative and qualitative approaches, but there is more here than that.

In the current controversy over the suitability of quantitative methods for the study of appellate-court behavior, there is a tendency to overlook a rather important similarity among the majority of contenders on both sides. Most contemporary analysts of appellate-court decisions, whether they be lower-court judges, practicing lawyers, journalists, professors of law, or political scientists, tend to comb discrete decisions in a search for uniformities and inconsistencies [my emphasis]. However much their motives may vary, analysts of both schools strive to generalize about phenomena which are, in some ways, unique. Utilizing the techniques it considers most apposite, each group collects and classifies data which it hopes to cast into formularies characterizing the behavior of a court and its individual members.

Fundamental though their common objective may be, the differences between the generalizers who quantify (the quantifiers) and those who do not (the qualifiers) can hardly be put aside. Two of those differences seem presently relevant. In the first place, the quantifier tends to place greater emphasis on systematic and objective classification. He seeks to devise procedures which will permit trained analysts to come up with highly comparable results. On the other hand, the qualifier tends to feel that such striving for reliability sacrifices too much that is vital. In his view the richest ore is mined by those who devote their energies to nuances too elusive for systematic objectivity.

In the second place, the quantifier is more disposed than the qualifier to study the voting behavior of judges as distinguished from the opinions they father. To the qualifier,a judge’s vote grossly  oversimplified the hard choice he is frequently obliged to make among competing principles, values and interests. And what is more, each of a judge’s votes is counted equally by the quantifiers, although some decisions are obviously more important than others. How, the qualifier asks, can one equate Korematsu v. United States (sustaining the wartime Japanese evacuation) and Martin v. Struthers (invalidating a city ordinance against doorbell-ringing by peddlers of literature)? Though each case may have involved a fundamental freedom, Korematsu dealt with the physical internment of many thousands of persons, while the Struthers case involved only a minor inconvenience to a small group of proselytizers. A vote against the national government in the evacuation case was of such vastly greater moment than a vote against the city in the doorbell-ringing case that they cannot seriously be treated as equal.

Despite these troublesome objections, the quantifier persists in his use of voting data-in part because of the relative ease in recording them in a systematic and ostensibly value-free way. But only in part. Other reasons are, I think, more important.

For one thing, since an appellate judge normally votes far more frequently than he writes opinions, his voting behavior may often be the only data available. For another thing, what a judge says in one case is not always an accurate guide to what he will do in others. Appellate courts are collegial bodies. Though they employ a division of labor in writing opinions, a majority statement is always in a sense a group product. It reflects the style and sentiments of its author, but only as tempered by necessary deference to the wishes of other members of the majority. [More recent work acknowledges this is potentially true of votes as well] Moreover, and this applies to concurring and dissenting opinions as well as to majority opinions, a judge may be unwilling or unable to articulate the premises on which his decision is based. [my emphasis] Opinions, in fine, like voting records, have their limitations as data.

But fine for what? As the preceding italicized sentence shows, fine for inferring what factors drive the decision.  Both focus on the formal ruling on the merits, the disagreement goes only to how best to do that.  And that means, despite what the behavioralists claimed, they remained formalists. Their ‘realism’ extended only to questioning whether judges made decisions based on law, but assumed (implicitly) that once those decisions were made, that other actors treated them as authoritative. This assumes away the bulk of the politics. And while most knew that not to be the case, the study of what caused decisions and what happened to decisions once made were kept separate, with the former placed at the center of the field, and the latter more of an afterthought.  (And at least some behavoiralists saw any deviation of attention from formal rules as a move towards traditionalism, even when done by  other behavioralists).  But that only makes sense if you fail to notice it.

Written by David Kaib

May 11, 2013 at 4:12 pm

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