As a final guest post, I want to briefly discuss a few variables that arguably have been neglected in the recent body of empirical studies of judicial decisionmaking. This list obviously is highly subjective, although it reflects not only my thoughts but those generously shared by other researchers that I’ve informally polled in recent days. And given our natural human tendency to think that whatever we’re working on at the moment is the most important thing that could occupy the attention of any researcher, we are likely to regard whatever variable we are grappling with at the moment as the one most deserving of greater attention. As demonstrated in my discussion of the religion variable at the end of this posting, I am no exception to that tendency.
If this list of supposedly “neglected” variables were to be periodically updated, it would also prove to be a very fluid one, changing constantly with new developments and new contributions to the literature. In essence, what follows is one person's (my) impression of what lies on the cutting edge of empirical study of the courts today.
Wealth as an Influence on Judicial Decisionmaking:
Based upon my informal poll of researchers, it appears that the influences of wealth on judicial decisionmaking is becoming a hot topic. The longstanding interest in the potential influence or relationship of money to politics is being extended to judicial politics and may prove to be fodder for empirical examination.
The interest may focus on the wealth of the judge him or herself, in terms of socio-economic background or the remunerative nature of a legal practice before going on the bench. The interest instead may focus on the wealth of others in gaining undue influence or unequal access to the court system. Do lawyers who have generously contributed to judicial campaigns benefit from greater access (even aside from the direct “pay-to-play” scenario that has received attention in professional responsibility circles in recent years)? Do parties or entities that have a significant impact on local economy receive better treatment in judicial ruling?
As with other neglected variables, the neglect often turns not so much on a failure of creativity or curiosity on the part of social scientists, but rather on the difficulty of finding the information to study the matter. Data about the personal wealth of judicial appointees is limited and difficult to interpret. Information about campaign contributions may not be readily available. Determining how to objectively measure economic impact of parties in a community, in a manner that is comparable to other parties and other communities, would be a challenge (although potentially a very interesting challenge that could result in a major contribution to the literature).
Case Type Variables:
While it is common practice in models for studying Supreme Court decisions, inclusion of case-type or fact pattern variables in study of decisions by other courts is not standard practice. Case-type control variables should be included if possible to ensure that any relationship discovered between any particular variable and the dependent variable is not an artifact of some correlation between that variable and a particular type of case. As Donald Songer and Susan Tabrizi explain, “integrated models will be incompletely specified unless they include the particular case facts that are most relevant for the type of cases examined.” Donald R. Songer & Susan J. Tabrizi, The Religious Right in Court: The Decision Making of Christian Evangelicals in State Supreme Courts, 61 J. Pol. 507, 511 (1999).
In addition to serving other purposes (such as allowing examination of a hypothesized relationship between a particular case category or fact pattern and a dependent variable), the inclusion of case-type variables ought to reduce the chance that some oddity about or concentration of claims around a particular type of case might be driving the overall result. Of course, case-type variables generally must be defined with some degree of breadth and can never be perfectly and individually specified (as every case is different in at least some respects from every other case), nor should we place excessive interpretive weight upon the inclusion of such control variables in a statistical model.
Including case-type or fact variables often requires additional work, as the researcher may not be able to rely upon a data-set previously gathered by others, but may have to actually review each decision. That in turn may raise problems about sources of information (the general theme of my postings this week), as unpublished decisions may lack sufficient detail to identify every salient type or fact and trial court decisions, especially at the state level, may not be recorded with any beyond a disposition.
At this point, I turn more directly to shameless self-promotion, as religion as a variable has been and continues to be the focus of my current empirical interest in judicial decisionmaking. But I am not only in seeing potential in this factor, as Donald Songer and Susan Tabrizi also note, in the article cited above, that “religious affiliation may provide a useful indicator of judicial values that has been ignored by previous studies examining the impact of judges’ values on their decisions.”
In my collaborative work with Michael Heise and Andrew Morriss, we focused upon various religion-oriented variables in studying religious liberty decisions. Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Searching for the Soul of Judicial Decisionmaking: An Empirical Study of Religious Freedom Decisions, 65 Ohio St. L.J. 491 (2004). During the past half century, constitutional theories of religious freedom have been in a state of great controversy, perpetual transformation, and consequent uncertainty. Given the vitality of religious faith for most Americans and the vigor of the enduring debate on the proper role of religious belief and practice in public society, a searching exploration of the influences upon judges in making decisions that uphold or reject claims implicating religious freedom is long overdue. Many thoughtful contributions have been to the debate about whether judges should allow their religious beliefs to surface in the exercise of their judicial role. Yet much less has been written about whether judges’ religious convictions do affect judicial decrees, that is, whether religious beliefs influence court decisions, consciously or unconsciously.
In our comprehensive empirical study of federal circuit and district judges deciding religious freedom cases, the vitality of religious variables to a more complete understanding of judicial decisionmaking became abundantly clear. Indeed, the single most prominent, salient, and consistent influence on judicial decisionmaking was religion—religion in terms of affiliation of the claimant, the background of the judge, and the demographics of the community, independent of other background and political variables commonly used in empirical tests of judicial behavior. Thus, in light of the findings of this study, when searching for the soul of judicial decisionmaking in the legal or political sense, we concluded that researchers should not neglect the presence and influence upon the judicial process of matters that affect the soul in the theological sense.
Of course, if religious variables were to have an influence, one would expect it to emerge in cases that involve religious liberty. Is there justification for studying religious variables in the context of other research questions? Only time – and experimentation – will tell.