The Distorting Slant in Quantitative Studies of Judging

Abstract

The study of judicial politics using empirical methods to gain insight into the process of judicial decision making has, until recently, belonged exclusively to political scientists. Now, however, the field of study is quickly gaining traction in the legal academy. Using judicial decisions and data about the judges making them could help expose judges who are overly political and help maintain the integrity of the legal system. Unfortunately, because political scientists bought into a false story about the legal community—that judges and legal scholars believe judicial decision making is a mechanical application of law to facts leading to a necessary result. Consequently, judicial politics studies are aimed at proving politics has some affect on judicial decision making, rather than trying to determine how much it affects decision making and at what point it becomes problematic. This Article demonstrates that judges have openly acknowledged that politics and personal preferences influence judicial decision making, but only rarely and to a limited extent, something borne out by judicial politics studies once the question becomes how much, not whether.