Appellate lawyers are to a considerable degree in the business of anticipating the views and inclinations of appellate judges and justices. At every phase of litigation, whether it be selecting cases which should (or should not) be brought before an appellate court, to crafting arguments in a way most likely to garner the votes of a majority of the panel, counsel must try to understand not only the philosophy and jurisprudence of the judges on the appellate court, but also the influences which might cause an appellate judge to vote contrary to his or her judicial philosophy in a given case (a matter we’ll consider on this blog later).
During the past sixty years, a considerable scholarly literature has developed which applies empirical techniques – largely, sophisticated statistical analysis – to these very questions.[1] Despite the recurring posting of “Stat Packs” on SCOTUSBlog and the publication of The Behavior of Federal Judges, by Lee Epstein, William M. Landes and Judge Richard A. Posner,[2] these techniques are still not well known among the bar. Anecdotal “conventional wisdom” remains commonplace among lawyers practicing in the appellate courts regarding issues which could – and have – been rigorously measured.
Judge Posner and Professors Epstein and Landes succinctly captured the value of this kind of research to the appellate bar: “The better that judges are understood, the more effective lawyers will be both in litigating cases and, as important, in predicting the outcome of cases, thus enabling litigation to be avoided or cases settled at an early stage.”[3]
Image courtesy of Flickr by Torley (no changes).
[1] The first well-known application of statistical techniques to understanding appellate decision-making was likely “Divisions of Opinion among Justices of the U.S. Supreme Court, 1939-1941,” by C. Herman Pritchett. 35 American Political Science Review 890 (1941). Pritchett later expanded on his analysis in a book, The Roosevelt Court (MacMillan, 1948). The literature analyzing the work of the U.S. Supreme Court and the Federal Circuits is enormous; lower federal courts and state courts have received considerably less attention. Important works include Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge Univ. Press: 2002); Scott A. Comparato, Amici Curiae and Strategic Behavior in State Supreme Courts (Praeger Pub.: 2003); Laura Langer, Judicial Review in the State Supreme Courts: A Comparative Study (State Univ. Press of N.Y.: 2001); Andreas Broscheid, “Comparing Circuits: Are Some U.S. Courts of Appeals more Liberal or Conservative than Others?” 45 Law & Society Review 171 (2011); Denise M. Keele, An Analysis of Ideological Effects in Published Versus Unpublished Judicial Opinions, 6 Journal of Empirical Legal Studies 213 (2009); Stephen J. Choi and G. Mitu Gulati, “Trading Votes for Reasoning: Covering in Judicial Opinions,” 81 Southern California Law Review 735 (2008); Frank B. Cross, Decision Making in the U.S. Courts of Appeals (2007: Stanford Univ. Press); Cass R. Sunstein et al., Are Judges Political? An Empirical Analysis of the Federal Judiciary (Brookings Institution Press: 2006); Gregory C. Sisk and Michael Heise, Judges and Ideology: Public and Academic Debates about Statistical Measures, 99 Northwestern University Law Review 743 (2002); Michael Giles, Virginia Hettinger and Todd Peppers, An Alternative Measure of Preferences for Federal Judges, 54 Public Research Quarterly 623 (2001).
[2] The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice, (Cambridge: Harvard Univ. Press, 2013).
[3] Id., p. 6.