How Judges Think

1. Judges are Workers in an Unusual Labor Market

American judges, at least, are not formalists, or (the term I prefer, as it carries less baggage) legalists.

Labor market dynamics. Judges, especially in the U.S. federal system, operate within a unique labor market. The "buyers" are the President and Senate, seeking individuals to resolve legal disputes. The "sellers" are lawyers who find the role of a judge preferable to other career options.

Incentives and motivations. Unlike typical jobs, federal judges have significant job security and limited opportunities for promotion. This unusual structure shapes their motivations, emphasizing non-pecuniary rewards like power, prestige, and the intrinsic satisfaction of being a "good" judge.

Self-selection and vocational behavior. The judicial labor market attracts individuals who value leisure, public recognition, and risk aversion. The desire to be seen as a competent and ethical judge further influences their behavior, leading to a "judicial work ethic" that often surpasses standard self-interest motivations.

2. Judicial Independence Balances Political Goals

Judicial review is established and maintained by elected officials.

Tension between independence and politics. Appointing authorities seek judges who will impartially enforce legal norms, but also align with their political goals. This creates a tension, as judges with lifetime tenure have little incentive to toe a political line once appointed.

Political influence through appointments. Presidents and senators attempt to influence the judiciary by appointing judges who share their political leanings. However, the screening process and the desire to be seen as a "good" judge often temper partisan behavior.

Democratic accountability. The political nature of judicial appointments can be seen as a means of ensuring democratic accountability. Judges who align with the ideology of the appointing President may amplify the people's choice, though this view is controversial.

3. Appellate Judges are Occasional Legislators

Especially if they are appellate judges, even intermediate ones, they are “occasional legislators.”

Beyond umpires. The legalist view of judges as mere "umpires" calling balls and strikes is unrealistic. Appellate judges, in particular, exercise legislative power by creating law through their decisions, especially in cases where existing rules are unclear.

Constraints and freedoms. Judges' legislative activity is constrained by rules of standing, limitations on consultation, and professional norms. However, they also enjoy freedoms not available to legislators, such as the absence of constituent pressures.

The duty to decide. Judges have a duty to decide cases, even when legalist methods fail to provide a clear answer. This necessitates the exercise of discretion and the making of policy judgments, blurring the line between adjudication and legislation.

4. Judges' Decisions are Shaped by Preconceptions

We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own.

Bayesian decision theory. Judges' decisions are influenced by preconceptions, or "priors," shaped by their experiences, temperament, and ideology. These priors affect how they interpret evidence and assess the credibility of witnesses.

Unconscious influences. Judges may be unaware of the extent to which their decisions are shaped by these preconceptions. Bayesian theory helps explain how judges can act in good faith while still exhibiting patterns of behavior consistent with the attitudinal model.

Fact discretion. Even in fact-finding, judges' priors can play a significant role. While judges strive to be impartial, their personal backgrounds and experiences inevitably influence their perceptions and judgments.

5. External Constraints on Judges are Attenuated

The judicial utility function is missing many of the arguments of other workers’ utility functions, but one that remains, as we know, is leisure.

Limited external controls. Federal judges are largely insulated from external pressures. They cannot be easily removed from office, their salaries cannot be reduced, and their opportunities for promotion are limited.

The judicial work ethic. Despite the lack of strong external incentives, many judges exhibit a strong work ethic. This suggests that intrinsic motivations, such as the desire to be a "good" judge, play a significant role in shaping their behavior.

The role of objective evaluations. Objective evaluations of judicial performance could potentially serve as an external constraint. However, the difficulty of obtaining reliable information and the contested nature of judicial criteria make such evaluations challenging.

6. Term Limits and Salaries Impact Judicial Behavior

The judicial mentality would be of little interest if judges did nothing more than apply clear rules of law created by legislators.

Term limits. Imposing term limits on federal judges could increase their responsiveness to public opinion and reduce shirking. However, it could also lead to instability and politicization of the judiciary.

Judicial salaries. Raising judicial salaries could attract more talented individuals to the bench. However, it could also make judgeships more attractive to those motivated by financial gain rather than a genuine desire to serve.

Balancing act. The optimal judicial environment requires a careful balance between independence and accountability. Policies that alter tenure and salary structures must be carefully considered to avoid unintended consequences.

7. Legalism is a Tactic, Not a Comprehensive Strategy

Legalism treats law as an autonomous discipline, a “limited domain.”

The limits of legalism. Legalism, the view that judicial decisions are determined solely by preexisting rules, is an incomplete description of judicial behavior. In many cases, legal rules are unclear or conflicting, requiring judges to exercise discretion.

Legalism as a pragmatic strategy. Legalism can be understood as a pragmatic strategy for managing uncertainty and promoting legal predictability. However, it is not always the most effective or desirable approach.

The open area of judging. When legalist methods fail, judges enter the "open area" where they must draw on other sources of judgment, including their own political opinions, policy preferences, and personal experiences.

8. Academic Critique is Alienated from the Judiciary

Judicial behavior cannot be understood in the vocabulary that judges themselves use, sometimes mischievously.

The gap between theory and practice. A growing divide exists between the legal academy and the judiciary. Academic criticisms of judges often fall on deaf ears due to unrealistic assumptions and a lack of understanding of the judicial process.

The decline of the traditional model. Changes in legal education have shifted the focus away from practical skills and towards interdisciplinary scholarship. This has led to a decline in the number of academics with experience in legal practice.

The need for realistic critique. To be effective, academic critique must be grounded in a realistic understanding of the constraints and incentives that shape judicial behavior. It must also be constructive and offer practical suggestions for improvement.

9. Pragmatic Adjudication is Often Inescapable

A pragmatic judge assesses the consequences of judicial decisions for their bearing on sound public policy as he conceives it.

Consequences matter. Pragmatic adjudication emphasizes the consequences of judicial decisions for public policy. It involves assessing the likely effects of different outcomes and choosing the one that will produce the best results.

Constrained pragmatism. Pragmatic judges are not unconstrained. They are bound by norms that require impartiality, predictability, and respect for the written word. They must also consider the institutional consequences of their decisions.

The limits of objectivity. While pragmatic judges strive to make sound policy judgments, their decisions are inevitably influenced by their own values, experiences, and political leanings. This underscores the importance of a diverse and representative judiciary.

10. The Supreme Court is a Political Body

So it is in the Supreme Court, especially when it is deciding constitutional cases, that we expect, and find, the most strenuous and least successful efforts to demonstrate that judges are, or can be, legalists.

A political court. The U.S. Supreme Court, especially in constitutional cases, operates as a political body. The Justices are influenced by their political preferences, and their decisions often reflect ideological considerations.

Fewer constraints. The Justices operate with even fewer constraints than lower federal judges. This gives them greater freedom to shape the law in accordance with their own views.

The importance of public opinion. Public opinion plays a significant role in shaping the decisions of the Supreme Court. The Justices are aware of the potential for political backlash and may temper their decisions accordingly.

Last updated: April 9, 2025