Judicial Decision-Making: An Austrian Perspective

0:00Welcome to a little bit of a political science version of Austrian analysis. The concern I had with political science theories is that they seem to be too narrowly focused on predictive qualities and so forth, and not as much so on, explaining why judges decide cases the way they do. So this paper I focus on the Supreme Court, it's more interesting to most and it's easier to follow along. So the predominating models of judicial decision-making include one is the legal model and another is the attitudinal model and this is where much of the debate exists.

0:47The legal model, which is familiar with everyone, especially lawyers and judges, that the rule The rule of law and the facts of the case determine the outcome, so the judges look over the case and decide objectively what the best decision may be, they're not supposed to include their own biases and so forth. However, the attitudinal model made popular recently by Siegel and Spath posits that the legal understandings or the legal model which is based on this observance of the rule of law is hogwash. Instead of reasoning through cases and precedents, judges simply decide what their policy preferences are, and they rationalize using previous cases.

1:39And this makes sense to us. We understand that most people make decisions or all people make decisions based on their preferences. What they want to see happen in the future, that dictates their decisions. So the problem I have with the two is that because of this narrow focus on predictability, one tries to kick the other one out. As Siegel and Spaeth put it, because they predict 7% of the cases more accurately than the legal models do that they should be the one that exists and we should throw out all considerations of the institution of legal training. So I propose that we change, that political scientists should offer or should have a change in focus. Instead of which one predicts better, we should see how and to what extent do institutions and institutional changes affect the advancement of those preferences.

2:34Now to give an example, the debate that's going on between the two, we can illustrate it with just a 16-year-old boy who wants to buy a car, his first car, and what's going on is you have, let's imagine you have two camps, you want to predict what kind of car this boy is going to buy. Now we know that his number one preference is for a Corvette. He likes a Corvette, you know, it's got a V8 engine, got a lot of power, and so that's at the top of his preferences. And he also has the option of buying a Kia. It's a four-door, it's not as sporty, but it gets better gas mileage. So he has to weigh the pros and cons, and the 16-year-old boy, you know, with everything else, you know, as is, he's going to take that Corvette. Now, the attitudinalist approach to this would be, well, we want to determine that this boy is going to buy the Corvette if he has enough money in his pocket.

3:30We'll call this the money in the pocket model of 16-year-old new car buying boy decision making. And then you have the opponents of this who say, well, that can't be the case because we have insurance to consider. Insurance premiums would be way too high, and so we're gonna have the insurance model of predicting this output. Both of them are fighting because one predicts better than the other, and so we should kick the other one out, right? Well, we all know that more considerations go into the purchasing habits of a 16-year-old boy. You know, they have to deal with the pressures from mom and dad who don't want to see him in a two-door sports car with a V8 engine, and also the pressure of friends and so forth who would like to be able to ride around and a Convertible Corvette.

4:16So we have the similar thing going on here. And so to understand how that boy is going to buy that car, yes, we need to know how much money he has on hand. But we also need to know how important the institutional constraints on him are. And so if we start from the free market point of adjudication, we have no government. And when we have disputes lit against, will have to find a third party to resolve their case. And so that third party is incentivized by something. Now, in order for those two parties to agree upon someone to handle the case, right off the bat, people have concerns. Well, one party is just going to find a judge who will side with him.

5:05I pay him money on the side, and he decides my case, right? Well, in the free market, there would So there would be an incentive for those judges to act according to a profit, the profit incentive is maximized by just adjudication, right? In order for that judge to get customers, if you don't go from one case to the next, people have to be confident that he's going to be objective and he's not going to base his decisions upon the side payments of one of the parties. Force and free market, you don't have the show of force, the judges wouldn't be able to enforce their decisions by gunpoint, and so ostracism would be used instead, so we understand that. We have two considerations that are recognized by political scientists and within the models of judicial decision making, but their institutional concern is much too limited.

6:03are interested in how Congress or the presidency affects judicial decision making. So in the case of Congress, the political scientists would want to see, okay, what's the makeup of Congress and what's the makeup of the court? The court has to temper its decision based on the fear of having their jurisdiction reduced or eliminated or a law changing their decision forever. and then there's also a strategic model of decision making which is more specifically concerning the certification process or the cert process which they vote on cases that they come in on the dock whether or not to hear them so an interesting point about that is that you only need a minority of votes I believe it's four to hear a case so you could have a case where there are three judges who really want to hear it and the other The other six don't, not much, but maybe you have someone in the middle that, okay, I'll hear it if, right?

7:08So you can run into situations where there's a strategic way for judges to vote, so you're dependent more on the moderate judges here on furthering either a conservative or a liberal cause. And within that they have, this can be seen through the jurisprudential and the outcome mode. The jurisprudential mode is the mode in which the judges are apparently don't really care about a public policy preference and you're more likely to see the 9-0 decisions here, but not necessarily, of course, versus the outcome mode where the judges are very interested in the policy outcomes, like a highly contentious case. What happens here is when they go through an outcome or a jurisprudential mode, they have to determine whether or not the case will be a great vehicle for furthering their cause, whatever that is.

7:55So if a case comes to them that one justice wants to advance a certain cause, but it's a bad case, it's not going to provide a very good precedent, they might pass over it. They're not going to vote for it. Even though they want that policy, they're going to skip that, wait until a better case comes along. So there are institutional effects within the court itself to decide whether or not the court hears a certain case. Now the effect of government institutions here, pretty straightforward. The Constitution sets the tone. We can imagine lifetime tenure, how that affects judicial decision making. It states what their jurisdiction is. They're allowed a monopoly on the final arbiter of a law.

8:41And they have the use of force behind them now, we all know how that can affect it, and however the important distinction here is that power replaces the profit incentive for the judges. So no longer does the judge have to, not so much concerned with the just outcome as much as he's able to grab more power for the court here. Now this can be just simply viewed with just by looking at the number of important or cases over the course of the history of the court and I looked at three major political events here and we have Adams Court Packing Scheme, the Civil War and then FDR's Court Packing Scheme.

9:29Now, we usually don't call Adam's court packing, you know, or we don't usually call it a court packing, but it really was the first court packing scheme. It was just the successful one, right? And the midnight judges, he was able to get a lot of Federalists on the court. Because why? He was scared that the structure of the court would not institutionally protect the Federalist causes. So one way to do that is to put as many Federalist judges as you can on there as possible. And the Civil War, of course, is the next. This ended the threat of nullification and secession from the states. And we can see there that without a legitimate threat of the states, that relates significantly to the free market example of judicial decision making.

10:19In a free market, this is the gypsonian idea of concurrent review, where the states would be able to decide for themselves whether or not they agree with it, correct? So, by getting rid of that, that increases the power grabbing capabilities of the Supreme Court. And of course, the FDR's court packing scheme, which changed the, since the Civil War won the federal state battle, that was over with. Now, under the FDR's effect, was that the judges could focus more on their policy preferences, specific policy preferences, not just federal state battles. So the first example was the Marbury versus Madison, Chief Justice John Marshall was the Chief Justice at this time, and there are two possible paths that they could have taken, and that was the Marshallian judicial review, which ended up to succeed, and the Jeffersonian concurrent review, and this of course was the freer market version between the two paths.

11:30Now the institutional effects of this is that Marbury and Madison, you know, there was less consideration for other branches and state preferences, greater judicial authority and power, and this resulted in longer judicial tenure. Those of you who know any court history, the first, you know, before Jefferson was elected president, there wasn't that prestigious to be a Supreme Court Justice. Why? Well, because they didn't perceive it as having that great of power. John Jay retired from his position to go be governor of, I forget which state now, and there were other judges who were appointed that never even bothered showing up. But after judicial review and Marshall's establishment of judicial review, people could see the Supreme Court as being a vehicle for having powerful influence in federal government.

12:24And so what happens here is Marbury versus Madison specifically opens the door for Martin versus Hunter Lessie, which allows the Supreme Court to question or review the decisions of state Supreme Courts. And as you can see here, this first source from the University of Houston, it's rating the most significant or milestone decisions in Supreme Court history. And you can see that in the 1790s, before Jefferson, there was only one, they regard are only one significant decision. And then after judicial review, then we started seeing an increase. But it's still relatively low to these others. After Civil War, you can see it balloons. It more than doubles throughout the decade.

13:09And then we see in the 30s, once FDR is in power, you see almost another double of milestone decisions. This here is from constitution.org, which is a lot more friendly with the limited government angle. And as you can see, they also place the kind of steady influence early. But then after the Civil War, you see a doubling of the milestone decisions. And then again, almost another doubling of the milestone decisions. And before you think that, OK, after all of this This is done, the Supreme Court has settled the federal-state power structure, all the power is going toward them.

14:00The illustration of how a case that could seemingly be returning power back to the states, but really doesn't, can be illustrated by the District of Columbia versus Heller. This was the handgun case, and while this was a celebration at first glance, U.S. versus Dr. Dorrisen and Mullinex versus BATF illustrates how the Supreme Court was able to grab power or grab influence in this right to bear arms area. Because the first, or these two, in both opinions, Scalia and, I don't know if you wrote the other one, but they stated that Heller, the supposedly second amendment protecting case, didn't allow unlimited access to the right to bear arms, and that you could.

14:55And so now we have two cases built upon the first, but they create more powerful influence from the Supreme Court over the right to bear arms. And so the Austrian approach to understanding judicial decision making can be illustrated with Garrison's comparison are his two causes of depressions, you know, illustrating that inflation on the one hand can cause it as it did during the Great Depression and then expanding fiscal policy such as taxing and spending to create later depressions. The same thing can be said for judicial decision-making. There are two influences on Supreme Court decision-making, the preferences of the justices to themselves, and the institutions that incentivize their use of them or constrain them.

15:47And so again, I recommend a change in focus for political scientists. We know that preferences matter. This is something that economists have known for some time. Why it took until 2002 for political scientists to settle upon that is kind of funny. So the change of focus should be how does institutional changes, how do they affect The Advancement of a Justice's Preferences. Thank you.