Judicial Decision Making

Legal Approach

Proponents of the legal approach hold that judges decide cases based on “the law” without regard to personal policy preferences. By applying legal principles to the facts of cases, judges arrive at sound decisions without interjecting their personal beliefs into them. Although scholars have identified several such legal principles, three appear frequently in social science accounts of judging: stare decisis, intent, and textualism.

The legal principle of stare decisis, “let the decision stand,” requires judges relying on this principle to apply precedent to disputes. In applying precedent, judges look for factual similarities between previously decided cases and the case before them. Once they find similarities, they apply the rule declared in the previous case, the precedent, to the pending dispute. Reliance on stare decisis aims toward predictability and stability.

When judges apply the principle of intent, they determine what the creators of the regulation, statute, or constitution intended at the time of its drafting. In a U.S. federal constitutional dispute, for example, a judge may refer to the records of the Constitutional Convention, the state ratification debates, and the Federalist Papers. These historical documents are important because when one reads them together, they may reveal the specific goals the framers strove for when they created the legal rule.

Proponents of textualism, on the other hand, consider the words of a legal rule and give them the same meaning that the drafters of the regulation, statute, or constitution gave them. Proponents believe that if one uses modern definitions of words whose meanings have evolved over time, then one is amending the rule without following proper procedure. Textualists refer to contemporaneous dictionaries or other lexical materials to determine the proper meaning of disputed statutory or constitutional words and phrases. In so doing, they hope to avoid the pitfalls that judges encounter when they study historical documents to find expressed or unexpressed “intent.”

These and other “principled” legal approaches to decision making were fixtures in social-scientific scholarship on law and courts until the 1940s, when scholars began to collect data on judicial decisions. From these data, they observed that judges often voted according to their own policy (ideological) preferences and not according to legal principles. These empirical observations gave birth to new social scientific theories. Scholars argued that ideological or institutional factors, rather than legal factors, influenced judges' decisions. Three extralegal approaches—the attitudinal, strategic, and historical-institutional—dominate the field of judicial politics today. Although each approach differs from the others in important ways, they all embody the idea that any approach to judicial decision making that relies exclusively on legal principles is incomplete.

Attitudinal Approach

Supporters of the attitudinal approach emphasize the importance of judges' political ideologies. Typically, scholars examining ideologies characterize the degree to which a judge is liberal or conservative. For example, one might say, “Judge X holds conservative views on issues of criminal law” or “Judge Y holds liberal views on free speech.” This approach maintains, for instance, that when a case comes before the U.S. Supreme Court, each justice evaluates the facts of the dispute and arrives at a decision consistent with his or her personal ideology.

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