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The puzzle of judicial behavior (analytical perspectives on politics)
From local trial courts to the United States Supreme Court, judges' decisions affect the fates of individual litigants and the fate of the nation as a whole. Scholars have long discussed and debated explanations of judicial behavior. This book examines the major issues in the debates over how best to understand judicial behavior and assesses what we actually know about how judges decide cases. It concludes that we are far from understanding why judges choose the positions they take in court.
Lawrence Baum considers three issues in examining judicial behavior. First, the author considers the balance between the judges' interest in the outcome of particular cases and their interest in other goals such as personal popularity and lighter workloads. Second, Baum considers the relative importance of good law and good policy as bases for judges' choices. Finally Baum looks at the extent to which judges act strategically, choosing their own positions after taking into account the positions that their fellow judges and other policy makers might adopt. Baum argues that the evidence on each of these issues is inconclusive and that there remains considerable room for debate about the sources of judges' decisions. Baum concludes that this lack of resolution is not the result of weaknesses in the scholarship but from the difficulty in explaining human behavior. He makes a plea for diversity in research.
This book will be of interest to political scientists and scholars in law and courts as well as attorneys who are interested in understanding judges as decision makers and who want to understand what we can learn from scholarly research about judicial behavior.
Lawrence Baum is Professor of Political Science, Ohio State University.
eBook
Murder and the reasonable man : passion and fear in the criminal courtroom
A man murders his wife after she has admitted her infidelity; another man kills an openly gay teammate after receiving a massage; a third man, white, goes for a jog in a “bad” neighborhood, carrying a pistol, and shoots an African American teenager who had his hands in his pockets. When brought before the criminal justice system, all three men argue that they should be found “not guilty”; the first two use the defense of provocation, while the third argues he used his gun in self-defense.
Drawing upon these and similar cases, Cynthia Lee shows how two well-established, traditional criminal law defenses—the doctrines of provocation and self-defense—enable majority-culture defendants to justify their acts of violence. While the reasonableness requirement, inherent in both defenses, is designed to allow community input and provide greater flexibility in legal decision-making, the requirement also allows majority-culture defendants to rely on dominant social norms, such as masculinity, heterosexuality, and race (i.e., racial stereotypes), to bolster their claims of reasonableness. At the same time, Lee examines other cases that demonstrate that the reasonableness requirement tends to exclude the perspectives of minorities, such as heterosexual women, gays and lesbians, and persons of color.
Murder and the Reasonable Man not only shows how largely invisible social norms and beliefs influence the outcomes of certain criminal cases, but goes further, suggesting three tentative legal reforms to address problems of bias and undue leniency. Ultimately, Lee cautions that the true solution lies in a change in social attitudes.
eBook
Judges and their audiences
What motivates judges as decision makers? Political scientist Lawrence Baum offers a new perspective on this crucial question, a perspective based on judges' interest in the approval of audiences important to them. The conventional scholarly wisdom holds that judges on higher courts seek only to make good law, good policy, or both. In these theories, judges are influenced by other people only in limited ways, in consequence of their legal and policy goals. In contrast, Baum argues that the influence of judges' audiences is pervasive. This influence derives from judges' interest in popularity and respect, a motivation central to most people. Judges care about the regard of audiences because they like that regard in itself, not just as a means to other ends. Judges and Their Audiences uses research in social psychology to make the case that audiences shape judges' choices in substantial ways. Drawing on a broad range of scholarship on judicial decision-making and an array of empirical evidence, the book then analyzes the potential and actual impact of several audiences, including the public, other branches of government, court colleagues, the legal profession, and judges' social peers.
eBook
Rule By Law
Scholars have generally assumed that courts in authoritarian states are pawns of their regimes, upholding the interests of governing elites and frustrating the efforts of their opponents. As a result, nearly all studies in comparative judicial politics have focused on democratic and democratizing countries. This volume brings together leading scholars in comparative judicial politics to consider the causes and consequences of judicial empowerment in authoritarian states. It demonstrates the wide range of governance tasks that courts perform, as well as the way in which courts can serve as critical sites of contention both among the ruling elite and between regimes and their citizens. Drawing on empirical and theoretical insights from every major region of the world, this volume advances our understanding of judicial politics in authoritarian regimes.
eBook
How to Save the Supreme Court
The consequences of Justice Brett Kavanaugh's Supreme Court confirmation are seismic. Justice Kavanaugh, replacing Justice Anthony Kennedy, completes a new conservative majority and represents a stunning Republican victory after decades of increasingly partisan battles over control of the Court. The result is a Supreme Court whose Justices are likely to vote along party lines more consistently than ever before in American history. That development gravely threatens the Court's legitimacy. If in the future roughly half of Americans lack confidence in the Supreme Court's ability to render impartial justice, the Court's power to settle important questions of law will be in serious jeopardy. Moreover, many Democrats are already calling for changes like court-packing to prevent the new conservative majority from blocking progressive reforms. Even if justified, such moves could provoke further escalation that would leave the Court's image and the rule of law badly damaged. The coming crisis can be stopped. But saving the Court's legitimacy as an institution above politics will require a radical rethinking of how the Court has operated for more than two centuries. In this Feature, we outline a new framework for Supreme Court reform. Specifically, we argue for reforms that are plausibly constitutional (and thus implementable by statute) and that are capable of creating a stable equilibrium even if initially implemented using \"hardball\" tactics. Under this framework, we evaluate existing proposals and offer two of our own: the Supreme Court Lottery and the Balanced Bench. Whether policymakers adopt these precise proposals or not, our framework can guide their much-needed search for reform. We can save what is good about the Court–but only if we are willing to transform the Court.
Journal Article
The Supreme Court and Public Opinion
Alexander Hamilton famously called the Supreme Court the \"least dangerous branch\" because it was reliant on Congress for funding and the President for enforcement. To manage its relationship with the political branches in a way that affords the Court both independence from them and the necessary assistance from them, the Court must cultivate the affection of the electorate. Several doctrinal tools facilitate that cultivation, and, historically, the Court has used those tools effectively to maintain relatively high public- approval rates. But over the last decade, those rates have fallen significantly to historic lows. This Article interrogates why that is. Tracing the Court's management of its relationship to the political branches and the public over the course of key moments in history--Marbury v. Madison, the Cherokee crisis, the \"switch in time, \" Brown v. Board, Bush v. Gore, and Lawrence v. Texas--I show a Court acutely attuned to its precarious position in the governmental structure I then contrast those moments with the current Court, showing that the Court's management today is being eroded by a steady barrage of jabs, some of which are the Court's own making. The result is that, today, the Court's flagging public support risks leaving it too vulnerable to stand up to the political branches in the country's greatest moment of need.
Journal Article
