Judging the judges

Duke Law Journal

Volumn 58, Issue 7, 2009, Pages 1383-1437

  Cross, Frank B ^a,b   Lindquist, Stefanie ^b,c  

^a UNIVERSITY OF TEXAS AT AUSTIN   (United States)

^b University of Texas Law School   (United States)

^c UNIVERSITY OF TEXAS AT AUSTIN   (United States)

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[No Author keywords available]

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EID: 68049086144     PISSN: 00127086     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (229)

1. Stephen J. Choi & G. Mitu Gulati, Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance, 78 S. Cal. L. Rev. 23 (2004) [hereinafter Choi & Gulati, Choosing the Next].
2. Stephen J. Choi & G. Mitu Gulati, Mr. Justice Posner? Unpacking the Statistics, 61 N.Y.U. Ann. Surv. Am. L. 19 (2005) [hereinafter Choi & Gulati, Mr. Justice Posner?].
3. Stephen Choi & Mitu Gulati, Essay, A Tournament of Judges?, 92 Cal. L. Rev. 299 (2004) [hereinafter Choi & Gulati, A Tournament].
4. See, e.g., Michael J. Gerhardt, Merit vs. Ideology, 26 Cardozo L. Rev. 353, 353-54 (2005)
5. William P. Marshall, Be Careful What You Wish for: The Problems with Using Empirical Rankings to Select Supreme Court Justices, 78 S. Cal. L. Rev. 119, 119-21 (2004)
6. Werl, On Tournaments for Appointing Great Justices to the U.S. Supreme Court, 78 S. Cal. L. Rev. 157, 157-58 (2004)
7. Lawrence B. Solum, A Tournament of Virtue 1-2 (U. San Diego Legal Studies, Research Paper No. 05-16, 2004), available at http://ssrn.com/abstract=588322. The Choi and Gulati tournament has spawned a symposium for an entire issue of a law review. Symposium, Empirical Measures of Judicial Performance, 32 Fla. St. U. L. Rev. 1001 (2005). Their research has also been discussed in the Chronicle of Higher Education. David Glenn, Jousting with Gavels, Chron. Higher Educ., May 23, 2003, at A16.
8. See Choi & Gulati, Choosing the Next, supra note 1, at 26 n.2.
9. See Frank B. Cross, Decision Making in the U.S. Courts of Appeals 1-2 (2007) ("[T]he circuit courts are much more important [than the Supreme Court] in setting and enforcing the law of the United States.")
10. Richard A. Posner, Judicial Behavior and Performance: An Economic Approach, 32 Fla. St. U. L. Rev. 1259, 1273 (2005) ("[T]he Supreme Court reviews only a minute percentage . . . of court of appeals decisions. Entire fields of law are left mainly to the courts of appeals to shape.").
11. David E. Klein, Making Law in the United States Courts of Appeals 51 (2002).
12. See Adam Liptak & Jonathan D. Glater, Alito's Dissents Show Deference to Lower Courts, N.Y. Times, Nov. 3, 2005, at A1 (referencing this study's findings on Supreme Court treatment of Alito's circuit court decisions).
13. See Choi & Gulati, A Tournament, supra note 1
14. Choi & Gulati, Choosing the Next, supra note 1, at 33.
15. Id. at 68-69.
16. Id. at 73.
17. Choi & Gulati, A Tournament, supra note 1, at 299
18. Choi & Gulati, Choosing the Next, supra note 1, at 38
19. Professors Choi and Gulati suggest that their standards "enable transparency in the nomination process" and create a "de facto presumption-one that the president has to rebut (or else face public pressure to the extent that the tournament's objective winners are easy to observe)." Id. at 81.
20. Daniel A. Farber, Supreme Court Selection and Measures of Past Judicial Performance, 32 Fla. St. U. L. Rev. 1175, 1177 (2005). He suggests, for example, that the decision to publish precedents may reflect only the "self-centeredness" of the judge. Id. A count of unpublished opinions might be added to this measure.
21. Choi & Gulati, Choosing the Next, supra note 1, at 44
22. Even if the Supreme Court were to double the number of cases it accepts, which Professors Choi and Gulati believe might be beneficial, its annual opinion output would still be much less than that of the median circuit court judge
23. See Frank B. Cross & Emerson H. Tiller, Essay, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L.J. 2155, 2168-73 (1998) (showing the effect of the ideological composition of court panels on judicial voting).
24. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1751-58 (1997) (reporting the effects of other panel members on judicial decisions).
25. This association is apparent from casual observation of the Supreme Court. Justices Stevens and Souter were appointed by Republican presidents, as were Justices Scalia and Thomas, but the two sets frequently disagree with one another on ideologically patterned grounds. There are now "judicial common space" scores that place circuit court judges on a continuum of ideology, based on their votes, and there are significant differences even among appointees from the same president. Lee Epstein et al., The Judicial Common Space, 23 J.L. ECON. & ORG. 303, 304, 320 (2007).
26. See Marshall, supra note 2, at 127 (noting that the measure "rewards a judge who is outside the ideological mainstream").
27. See Frank B. Cross, Decisionmaking in the U.S. Circuit Courts of Appeals, 91 Cal. L. Rev. 1457, 1504-09 (2003) (demonstrating that ideology explains only a small portion of circuit judges' voting behavior and has lesser explanatory power than legal factors).
28. There is some evidence that the Choi & Gulati scores are indeed influenced by this effect. See Werl, supra note 2, at 177 (noting that the highest independence scores were associated with Reagan appointees that were the most "extreme" Republican judges on the circuit courts).
29. See, e.g., David C. Vladeck, Keeping Score: The Utility of Empirical Measurements in Judicial Selection, 32 Fla. St. U. L. Rev. 1415, 1437-40 (2005) (suggesting that although judges who vote together against the desires of their appointing president should be given credit for independence, the measure gives them no credit).
30. Professors Choi and Gulati conceded that this measure might really capture "cantankerousness and unwillingness to compromise as opposed to real independence." Choi & Gulati, Mr. Justice Posner?, supra note 1, at 38. The willingness to author a separate opinion might also be a reflection of judicial self-centeredness. See Farber, supra note 14, at 1177.
31. See James J. Brudney, Foreseeing Greatness? Measurable Performance Criteria and the Selection of Supreme Court Justices, 32 Fla. St. U. L. Rev. 1015, 1031 (2005) ("[J]udges are often critical of any pronounced tendency to write separate opinions. They fear the erosion of institutional integrity that may result . . . . [and] worry that a judicial inclination to write separately may reflect a somewhat arrogant unwillingness to deliberate and genuinely consider alternative views, an unwillingness that in turn leads to poorer work products."). Circuit court judges have written on the values of collegiality.
32. See, e.g., Harry T. Edwards, The Effects of Collegiality on Judicial Decision Making, 151 U. PA. L. REV. 1639, 1640-41 (2003) ("[C]ollegiality mitigates judges' ideological preferences and enables us to find common ground and reach better decisions.")
33. Deanell Reece Tacha, Judges on Judging: The "C" Word: On Collegiality, 56 OHIO ST. L.J. 585, 586 (1995) ("I nevertheless believe that there is a value in collegiality that affects the quality of judicial decisionmaking."). Scholars consider collegiality a criteria that good judges should possess. See Gerhardt, supra note 2, at 358.
34. Professors Choi and Gulati take note of the possibility that some citations may be attributable to "outrageously" bad decisions and hence measure negative citations for a subset of their judges. Choi & Gulati, Choosing the Next, supra note 1, at 55. They found that negative citations did not explain the high citation rates of their top judges. Id. at 56-57.
35. William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A Citation Analysis of Federal Courts of Appeals Judges, 27 J. LEGAL STUD. 271, 272-75 (1998) (setting out these and other potential criticisms of citation analysis in detail).
36. Professors Choi and Gulati have recognized the widespread belief that circuit court opinions are often written by clerks. They tried to isolate those judges most likely to draft their own opinions. See Stephen J. Choi & G. Mitu Gulati, Which Judges Write Their Opinions (and Should We Care)? 3 (N.Y. Univ. Law Sch. Law & Econ., Working Paper No. 05-06, 2005), available at http://ssrn.com/abstract=715062 ("We use generic techniques from computational linguistics, as well as several methods tailored for the judicial setting, to explore both the desirability and feasibility of determining the authorship of judicial opinions.").
37. Vladeck, supra note 22, at 1432.
38. Farber, supra note 14, at 1178.
39. Richard A. Posner, An Economic Analysis of the Use of Citations in the Law, 2 Am. L. Am. L. & Econ. Rev& Econ. Rev. 381, 390 (2000).
40. For some discussion of this point, see id.
41. The Choi and Gulati results are limited to three years of opinions. This is not a criticism, as the data collection efforts required for such a study are daunting. However, it counsels some caution in interpretation, as a larger sample might yield different results, and judges' quality may change over their tenure on the bench.
42. Farber, supra note 14, at 1179.
43. Klein, supra note 5, at 94.
44. See Steven Goldberg, Federal Judges and the Heisman Trophy, 32 Fla. St. U. L. Rev. 1237, 1237 (2005)
45. WERL, supra note 2, at 165-67.
46. See Lee Epstein, Jack Knight & Andrew D. Martin, The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court, 91 Cal. L. Rev. 903, 905 (2003) (addressing the increased reliance on promotion from circuit courts).
47. Professors Choi and Gulati acknowledge this point and suggest the possibility of empirically measuring candidates from other fields as well. Choi & Gulati, A Tournament, supra note 1, at 319-20.
48. See Solum, supra note 2 (manuscript at 1-2).
49. Id. (manuscript at 4-8).
50. Id. (manuscript at 8-10).
51. See, e.g., Henry J. Abraham, Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II, at 1-2 (5th ed. 2008) (suggesting eight standards including judicial temperament, knowledge of the law, and the ability to handle judicial power sensibly).
52. Albert P. Blaustein & Roy M. Mersky, The first one Hundred Justices 50-51 (1978) (suggesting standards including analytical powers, knowledge, courage, and character).
53. Solum, supra note 2 (manuscript at 11).
54. Id. (manuscript at 15-17) (noting that other variables, such as the ease with which that authority can be located, influence the probability that a given authority will be cited).
55. Id. (manuscript at 1).
56. Id. (manuscript at 22).
57. It is possible that this is not the case, because of the nature of opinions receiving more citations, which we will discuss extensively below. See infra Part III.A.1.
58. Solum, supra note 2 (manuscript at 2).
59. See id. (manuscript at 11-12). His proposals range from the insignificant (Supreme Court appointees should be over thirty years old), id. (manuscript at 11), to the unhelpful (they should be screened for the "lawfulness" of their opinions), id. (manuscript at 12). Solum contends that "we have good reason to believe" that we can screen for his virtues, id., but he offers no specifics on how to do so or how likely the government is to adopt any such specifics, should they be identifiable.
60. Absent such specification, the criteria for quality judges are not helpful. See Frank B. Cross, Gay Politics and Precedents, 103 Mich. L. Rev. 1186, 1208 (2005) (book review) (observing that critics of the present system have produced only "amorphous" standards for judicial quality and have failed to offer examples of "quality judges," such that their criticism offers little value to the confirmation process).
61. Marshall, supra note 2, at 122-23.
62. Id. at 131.
63. Solum, supra note 2 (manuscript at 18-20).
64. Gregory C. Sisk, Michael Heise & Andrew P. Morriss, Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 N.Y.U. L. Rev. 1377, 1488-93 (1998). Similar results were found by Mark A. Cohen.
65. See Mark A. Cohen, Explaining Judicial Behavior or What's "Unconstitutional" About the Sentencing Commission?, 7 J.L. ECon. & org. 183, 198 (1991). Judges seeking promotion "have to toe the popular line or at least a line acceptable to the Senate Judiciary Committee." Pamela S. Karlan, Two Concepts of Judicial Independence, 72 S. Cal. L. Rev. 535, 545 (1999) (footnote omitted).
66. See, e.g., Vladeck, supra note 22, at 1417 ("[T]he talents one needs to be a superior Supreme Court Justice are light years apart from those needed to stand out on the court of appeals, and thus even a stellar performance on the court of appeals is no predictor of success on the high court.")
67. see also Goldberg, supra note 35, at 1242-43 (drawing the analogy between success in college football and failure at the professional level). James Brudney uses a comparison of Burger and Blackmun's records on the circuit court and Supreme Court to make this same point. See Brudney, supra note 24, at 1029-38.
68. Choi & Gulati, A Tournament, supra note 1, at 310.
69. Choi & Gulati, Choosing the Next, supra note 1, at 26.
70. See Cross, supra note 49, at 1206-09 (reviewing the criticisms of the current nomination process).
71. See, e.g., Bruce Fein, A Court of Mediocrity, A.B.A. J., Oct. 1991, at 74, 74 (stating that since Benjamin Cardozo, "subsequent Supreme Court nominees and appointees have been invariably pedestrian").
72. See Stephen Carter, The Confirmation Mess: Cleaning up the Federal Appointments Process passim (1994).
73. Stephen Carter, The Confirmation Mess, Revisited, 84 NW. U. L. REV. 962 passim (1990). Other descriptions use words like "mess, abysmal, broken, going in the wrong direction, and downright disorderly, contentious, and unpredictable." Lee Epstein et al., The Role of Qualifications in the Confirmation of Nominees to the U.S. Supreme Court, 32 Fla. St. U. L. Rev. 1145, 1146 (2005) (footnotes omitted) (internal quotation marks omitted).
74. Mark Silverstein, Judicious Choices: The new Politics of Supreme Court Confirmations 175 (updated college ed. 1994).
75. See Choi & Gulati, Choosing the Next, supra note 1, at 26 ("The genesis of this project lies in our frustration with the current appointment process. As best as we can tell, the entire focus in analyzing a candidate's qualifications is on predicting their expected votes on a handful of issues.").
76. Professors Choi and Gulati acknowledge this point to some degree, and argue that their measures are simply a tool to make politicians openly acknowledge ideological influence. Id. at 27-28. Given the nature of the process, though, this hardly seems necessary. It is an open secret that ideology largely determines Supreme Court appointments. Choi and Gulati go on to refer to it as an "informal norm," id. at 37, and, in another work, they concede that "it is well recognized that politics in fact does play a large (and constitutional) role in both the nomination and confirmation of federal judges," Choi & Gulati, A Tournament, supra note 1, at 301 n.5. It seems unlikely that either voters or senators seriously credit presidential claims that appointments are based on quality.
77. See Brannon P. Denning, Empirical Measures of Judicial Performance: Thoughts on Choi and Gulati's Tournament of Judges, 32 Fla. St. U. L. Rev. 1123, 1132 (2005) ("[P]erhaps [Choi and Gulati] simply overestimate the degree to which voters and Senators credit presidential claims of merit.").
78. Terri Jennings Peretti, In Defense of a Political Court (1999).
79. Id. at 85-89.
80. Id. at 100-01.
81. See Charles L. Black, Jr., The People and the Court: Judicial Review in a Democracy 174 (1977) (observing that such legal acumen is "not a sufficient condition . . . for dealing competently with questions of constitutional law" when political judgment is inevitable)
82. Brudney, supra note 24, at 1044 (contending that the "real world seeks considerable value" in the interplay of law and politics in the Supreme Court)
83. For a review of this evidence, see Peretti, supra note 63, at 102-11. The classic work of empirical research on this question is Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model (1993). Their findings have been confirmed by considerable subsequent research. A meta-analysis of the empirical research shows consistent ideological associations in decisionmaking, which are particularly pronounced at the Supreme Court level. Daniel R. Pinello, Linking Party to Judicial Ideology in American Courts: A Meta-analysis, 20 Just. Sys. J. 219, 243 (1999).
84. Cross, supra note 49, at 1211. This claim does not depend on the Justices being particularly willful and law-disregarding.
85. it is a feature of the Court taking the sorts of close cases for which traditional legal materials cannot answer the questions presented. See id.
86. See id. (noting that the evidence shows that judges compromise their ideological preferences when the law is plainly to the contrary).
87. Epstein et al., supra note 59, at 1160 fig.3, 1162 fig.4.
88. Id. at 1171. The results of the study show that ideological agreement is significant, that qualifications are significant, and that qualifications are even more significant when the appointee is ideologically more distant from the voting senator. Id. at 1171-72.
89. See id. at 1170.
90. see also Kevin T. Mcguire, Understanding the U.S. Supreme Court 38-40 (2002) (reviewing recent nominations and finding that great importance was placed on a nominee's qualifications).
91. Michael Comiskey, Seeking Justices: The Judging of Supreme Court Nominees 18 (2004).
92. Id. at 86-87. Comiskey's results provided some support for the suggestion that modern confirmation prevents the appointment of "great" Justices because none of the modern Justices were categorized as great. See id. at 98-99 (observing that Antonin Scalia, the highest-rated appointee since 1967, received a rating significantly below the "greatness" cutoff). This may simply reflect a reluctance of the evaluators to ascribe greatness to their contemporaries, whose decisions have not yet stood the test of time. See Cross, supra note 49, at 1210 ("[P]erceptions of greatness appear only after time."). Moreover, this effect is more than counterbalanced by the apparent ability of the current process to screen out unusually bad Justices, evidenced by the higher mean evaluation of quality.
93. Michael J. Gerhardt, The Art of Judicial Biography, 80 Cornell L. Rev. 1595, 1641-45 (1995) (book review) (arguing that it is virtually impossible to predict the greatness of a Justice in advance).
94. See William M. Landes & Richard A. Posner, Legal Precedent: A Theoretical and Empirical Analysis, 19 J.L. & Econ. 249, 271 (1976).
95. Posner, supra note 30 passim.
96. Landes et al., supra note 26, at 276-79.
97. Id. at 288.
98. Id. at 298.
99. David Klein & Darby Morrisroe, The Prestige and Influence of Individual Judges on the U.S. Courts of Appeals, 28 J. Legal Stud. 371, 379 (1999).
100. Id. at 376. This invocation measure was used because such a citation is unnecessary to the citing opinion, except insofar as the naming of a judge lends some persuasive import to the cited decision. Id. at 375-76.
101. Id. at 376.
102. Id. at 381.
103. Id. at 384-85.
104. Klein, supra note 5, at 40-41
105. Id. at 78-79. Other significant determinants included the relative ideology of the judges and whether the decision was from the same circuit, confirming both the political and the legal model of judicial decisionmaking. Id. at 79.
106. Jeffrey A. Berger & Tracey E. George, Judicial Entrepreneurs on the U.S. Courts of Appeals: A Citation Analysis of Judicial Influence 2-3 (Vanderbilt U. Law Sch. Law & Econ., Working Paper No. 05-24, 2005), available at http://ssrn.com/abstract=789544.
107. Id. (manuscript at 3).
108. Id. (manuscript at 15).
109. Choi & Gulati, Mr. Justice Posner?, supra note 1, at 28-29. The Posner effect may be biased by his extensive outside writings as a public intellectual.
110. See Vladeck, supra note 22, at 1435 (expressing doubt that "the Supreme Court always has the better argument")
111. See Cross, supra note 20, at 1499-500 (discussing the "difficulty in independently verifying the correctness of a decision")
112. Supreme Court cases receive far more information from amici than those at the circuit court level. Similarly, the litigants themselves typically devote more time and resources to briefing cases at the Supreme Court level. The Court also has the benefit of more support from clerks and the opportunity to choose the very best clerks from the circuit court level, after they have proved their adeptness in a prior circuit court clerkship.
113. See, e.g., Donald R. Songer, Jeffrey A. Segal & Charles M. Cameron, The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions, 38 Am. J. Pol. Sci. 673, 673 (1994) (addressing the principal-agent relationship between the courts).
114. Brannon Denning seemingly disputes this and argues that "[a]n appeals court could make a good-faith effort to apply Court precedent, only to have the Court adopt an equally plausible interpretation of its own precedent or repudiate its prior decisions and proceed in an entirely new direction." Denning, supra note 62, at 1141. This is a potential shortcoming of the measure, but he offers no argument for how frequently this occurs, and its occurrence would again fall within the category of statistical noise, discussed above, which affects all conceivable quantitative metrics of evaluation.
115. Landes et al., supra note 26, at 325-26.
116. See supra note 67.
117. See Choi & Gulati, A Tournament, supra note 1, at 307 (noting that this measure "may unfairly penalize judges with different political views from those on the Court").
118. Posner, supra note 4, at 1273 ("[M]any reversals by the Supreme Court reflect ideological differences . . . .").
119. Michele Landis Dauber, The 9th Circuit Follows, LEGAL Times, Aug. 19, 2002, at 36. This conclusion might be challenged, though, given the persistence of the circuit's high reversal rate even after the Rehnquist Court had worked to change the law. In addition, the Ninth Circuit had an unusually high rate of unanimous reversals, joined by liberal Justices, which suggests that this is not the true explanation.
120. See Marybeth Herald, Reversed, Vacated, and Split: The Supreme Court, the Ninth Circuit, and the Congress, 77 Or. L. Rev. 405, 435-36 (1998).
121. See Stefanie A. Lindquist & David E. Klein, The Influence of Jurisprudential Considerations on Supreme Court Decisionmaking: A Study of Conflict Cases, 40 Law & Soc'y Rev. 135, 148 (2006) (finding that, independent of ideology, the Court is more likely to follow the reasoning process adopted by the majority of circuits and more likely to adopt the position of more prestigious circuit court judges).
122. E.g., Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 Stan. L. Rev. 953, 1047 n.257 (2005) (observing that "error correction is not a sufficient basis" for the Court to take a case)
123. Kermit Roosevelt III, Essay, Light from Dead Stars: The Procedural Adequate and Independent State Ground Reconsidered, 103 Colum. L. Rev. 1888, 1916 (2003) ("[T]he Supreme Court does not ordinarily engage in error-correction.").
124. Vladeck, supra note 22, at 1435. However, this is another factor that amounts only to statistical noise and is refuted somewhat by the nature of the results in Part II.C, which suggest a systematic effect.
125. This conclusion might be contested. Because the Court takes the most difficult cases, it may not screen for the most blatant legal errors in easier cases. The latter may be left to correction by lower courts.
126. Posner, supra note 4, at 1259
127. See, e.g., Jerome Farris, Judges on Judging: The Ninth Circuit-Most Maligned Circuit in the Country-Fact or Fiction?, 58 Ohio St. L.J. 1465, 1465 (1997) (noting the high reversal rate for Ninth Circuit opinions reviewed by the Supreme Court).
128. These are among the top five judges as measured by Professor Choi and Gulati's quality measure of number of outside citations
129. See Choi & Gulati, Mr. Justice Posner?, supra note 1, at 28.
130. For a review of the practice of dissenting on circuit courts, see generally Virginia A. Hettinger, Stefanie A. Lindquist & Wendy L. Martinek, Judging on a Collegial Court (2006). The overall probability of a dissenting opinion on the circuit courts is about 4 percent. Id. at 66 tbl.2.
131. Reviewscore is based on the following weights: 1. Authored opinion affirmed by the Supreme Court = 2 2. Joined opinion affirmed by the Supreme Court = 1 3. Dissented from opinion affirmed by the Supreme Court = -2 4. Authored opinion reversed by the Supreme Court = -2 5. Joined opinion reversed by the Supreme Court = -1 6. Dissented from opinion reversed by the Supreme Court = 2 This system gave particular credit to judges whose opinions were affirmed by the Supreme Court or those who dissented from circuit court opinions later reversed by the Supreme Court.
132. See Micheal W. Giles, Virginia A. Hettinger & Todd Peppers, Picking Federal Judges: A Note on Policy and Partisan Selection Agendas, 54 Pol. Res. Q. 623, 624 (2001). The estimates for individual judges were based on presidential ideology plus consideration of senatorial ideology when senatorial courtesy was relevant to the appointment. Id. at 626-27.
133. See Werl, supra note 2, at 174 (reporting a statistically significant association between appointment by a Republican president and higher citation counts)
134. Klein & Morrisroe, supra note 81, at 375-76.
135. Berger & George, supra note 88 (manuscript at 3).
136. Choi & Gulati, Mr. Justice Posner?, supra note 1, at 42.
137. See J. Woodford Howard, Jr., Courts of Appeals in the Federal Judicial System (1981).
138. Id. at 160 (internal quotation marks omitted).
139. Id. at 161 (internal quotation marks omitted).
140. Id. at 162.
141. Klein, supra note 5, at 22 tbl.2.1.
142. Id. at 26.
143. See Farber, supra note 14, at 1178. He suggests that a "judge who is willing to cut corners on fidelity to the record can publish more opinions," but notes that such a judge "is also decreasing the ability of the legal system to respond accurately to the facts of cases" and degrading the overall performance of the system and fairness to individual litigants. Id.
144. Montgomery N. Kosma, Measuring the Influence of Supreme Court Justices, 27 J. Legal Stud. 333, 340 (1998).
145. In a different context, Professor Vladeck suggests that "a less interventionist Court is not necessarily a less effective or influential Court." Vladeck, supra note 22, at 1437.
146. See generally George L. Priest & Benjamin Klein, The Selection of Disputes for Litigation, 13 J. Legal Stud. 1 (1984) (proffering empirical explanations as to which cases will reach trial and which will settle).
147. See, e.g., Choi & Gulati, Mr. Justice Posner?, supra note 1, at 30-31 (observing that "the judge who invests a great deal of resources into writing a good description of the standard of review might obtain a large number of cites" but that those resources might be better spent on other tasks). Professors Choi and Gulati also note that certain judges, such as those with an academic background, may "write in an especially provocative and pedagogic fashion" that might generate high citation numbers independent of the substance of their opinions. Id. at 32
148. see also Vladeck, supra note 22, at 1432 (suggesting that the high frequency of citations to Judge Learned Hand was more due to the "nimbleness of his pen" than to "the force of his logic")
149. See Farber, supra note 14, at 1179 (suggesting that citation counts may reflect the "insertion of unnecessary dicta or address issues not raised by the lawyers or addressed by the trial judge," none of which seem to be "particularly beneficial behaviors")
150. See David J. Walsh, On the Meaning and Pattern of Legal Citations: Evidence from State Wrongful Discharge Precedent Cases, 31 Law & Soc'y Rev. 337, 357 (1997) (finding that longer opinions received more citations).
151. See Brian N. Lizotte, Publish or Perish: The Electronic Availability of Summary Judgments by Eight District Courts, 2007 Wis. L. Rev. 107, 140 n.159 (arguing that this makes intuitive sense "because a reversal alters the status quo set by the district court, meriting a more careful explanation, and also indicates that the law is uncertain").
152. There is a canon of statutory interpretation that statutes should be construed to avoid constitutional issues when possible. See, e.g., NLRB v. Catholic Bishops of Chi., 440 U.S. 490, 504-07 (1979) (construing a statute narrowly to avoid a potential constitutional question).
153. Choi & Gulati, Mr. Justice Posner?, supra note 1, at 24 (observing that Judge Posner "writes multiple books and articles every year"). The same is true for Judge Easterbrook, though to a lesser degree. Id. at 25 n.18.
154. See Farber, supra note 14, at 1183 (discussing the superstar effect and how it influences citations and invocations). Professor Solum provides a slightly different explanation for this effect. He argues that some decisions are situated more prominently in the network of citations, which causes them to be more frequently cited, which in turn creates a positive feedback loop that induces still more citations. Solum, supra note 2 (manuscript at 16).
155. Vladeck, supra note 22, at 1432.
156. Posner, supra note 4, at 1277.
157. See id. at 1263-64 (discussing unadventurous career, bureaucrat, and leisure-seeking types of judges).
158. See, e.g., Frank R. Baumgartner & Bryan D. Jones, Agendas and Instability in American Politics 3-4 (1993) (discussing the concept of policy entrepreneurship).
159. Nathan W. Polsby, Political Innovation in America: the Politics of Policy Initiation 171 (1984). They are those "willing to invest their resources in return for future policies they favor." John W. Kingdon, Agendas, Alternatives, and Public Policies 214 (1984).
160. Kingdon, supra note 138, at 189.
161. See Nancy C. Roberts & Paula J. King, Policy Entrepreneurs: Their Activity Structure and Function in the Policy Process, 2 J. Pub. Admin. Res. & Theory 147, 148 (1991) (setting forth these activities).
162. Michael Mintrom, Policy Entrepreneurs and the Diffusion of Innovation, 41 Am. J. Pol. Sci. 738, 739 (1997).
163. Id. at 740.
164. For descriptions of the idiosyncratic behavior of such judges, see generally Wayne V. Mcintosh & Cynthia L. Cates, Judicial Entrepreneurship: The Role of the judges in the marketplace of ideas (1997)
165. Berger & George, supra note 88.
166. Cynthia L. Cates & Wayne V. McIntosh, Retail Jurisprudence: The Judge as Entrepreneur in the Marketplace of Ideas, 11 J.L. & Pol. 709 (1995).
167. Mcintosh & Cates, supra note 143, at 5 (emphasis omitted)
168. See Cates & McIntosh, supra note 143, at 710 (ascribing this quality to Justice Oliver Wendell Holmes).
169. Howard, supra note 115, at 161.
170. Cates & McIntosh, supra note 143, at 716.
171. Id. at 717.
172. Id. at 716.
173. Solum, supra note 2 (manuscript at 17)
174. Brown v. Bd. of Educ., 347 U.S. 483 (1954).
175. See, e.g., Michael C. Dorf, Identity Politics and the Second Amendment, 73 Fordham L. Rev. 549, 556 (2004) ("It is by now commonplace that Brown was more a feature of Cold War ideological struggle than of discerning the Equal Protection Clause's 'true' meaning.").
176. Farber, supra note 14, at 1179
177. See generally Cass R. Sunstein, One case at a time: Judicial Minimalism on the Supreme court (1999) (propounding the notion of judicial minimalism).
178. Id. at 4-5.
179. Id. at 10-14.
180. Id. at 5.
181. Id. at 46.
182. Id. at 47.
183. Id. at 49.
184. Id. at 52.
185. Klein, supra note 5, at 99
186. Sunstein, supra note 157, at 5
187. see also Cass R. Sunstein, The Supreme Court, 1995 Term-Foreword: Leaving Things Undecided, 110 Harv. L. Rev. 4, 7 (1996) (discussing the "constructive uses of silence" (emphasis omitted)). This is not limited to the linguistic content of opinions, but it extends to the basis for judicial decisions. For example, he suggested that Bowers v. Hardwick should have been dismissed for mootness. Id. at 68 n.309.
188. Posner, supra note 4, at 1276
189. Neil Devins, The Democracy-Forcing Constitution, 97 Mich. L. Rev. 1971, 1993 (1999) (book review).
190. Sheldon Gelman, The Hedgehog, the Fox, and the Minimalist, 89 Geo. L.J. 2297, 2314 (2001) (book review).
191. See Christopher J. Peters, Assessing the New Judicial Minimalism, 100 Colum. L. Rev. 1454, 1458 (2000) (arguing that minimalism "significantly underestimates both the legitimacy and the competence of the judiciary in making decisions about individual and minority rights").
192. Sunstein, supra note 157, at 50
193. The effect of different judge types on precedent has been modeled. Sophie Harnay & Alain Marciano, Judicial Conformity Versus Dissidence: An Economic Analysis of Judicial Precedent, 23 Int'l Rev. L. & Econ. 405, 411-17 (2003).
194. On the need for and benefits of some judicial creativity and problem solving, see generally Frank B. Cross, What Do Judges Want?, 87 Tex. L. Rev. 183 (2008) (book review).
195. Leonard Kaufman & Peter J. Rousseeuw, Finding groups in data: an Introduction to Cluster analysis 1 (2005). For a further general review of the procedure, see generally Brian S. Everitt, Sabine Landau & Morven leese, cluster Analysis (4th ed. 2001).
196. Thomas Hill & Pawel Lewicki, Statistics: Methods and Applications 117 (2006)
197. Judge Posner warns of this effect. Posner, supra note 4, at 1276 ("[N]umerical rankings are questionable when the rankings are multidimensional, so that the weighting of the different dimensions becomes critical to the rankings."). Professors Choi and Gulati are responsive to this concern, though, by calculating the best judges under different weightings ascribed to their different dimensions.
198. The clustering procedure used the Ward's Algorithm with the variables standardized. It is based on a program described in Matthias Schonlau, The Clustergram: A Graph for Visualizing Hierarchical and Nonhierarchical Cluster Analyses, 2 Stata J. 391, 391-402 (2002).
199. Clusters 8 and 9 are most distinctly characterized by very low Reviewscore measures, a featured shared by many of the Ninth Circuit judges. Clusters 4 through 9 have higher Choi and Gulati quality scores than the first three clusters.
200. Landes et al., supra note 26, at 324.
201. Id. at 324-25.
202. Id. at 325.
203. Kosma, supra note 124, at 368-70 & n.70.
204. Russell Smyth & Mita Bhattacharya, What Determines Judicial Prestige? An Empirical Analysis for Judges of the Federal Court of Australia, 5 Am. L. Am. L. Am. L. & Econ. REV& Econ. Revamp; Econ. Rev. 233, 241-59 (2003).
205. Id. at 241-42.
206. Id. at 255-56.
207. This group presents the classic "countermajoritarian" argument against ideological judicial action. Judges are not elected and are given life tenure so that they cannot be removed if their decisions are contrary to the public will.
208. Professor Howard suggests that judges' ideological orientations are mediated by their perceptions of the policy role they should be playing in determining the policy outcomes of judicial decisions. HOWARD, supra note 115, at 172-78.
209. See, e.g., Richard A. Posner, Against Constitutional Theory, 73 N.Y.U. L. Rev. 1, 9-10 (1998) (discussing disputes over how judicial minimalism should be applied to resolve significant disputes and the influence of "Sunstein's politics").
210. Howard, supra note 115, at 175
211. Id. at 178. This effect was not universal, though, and it varied by the type of case under consideration. Id. at 179.
212. The United States Courts of Appeals Database, developed by Professor Donald Songer of the University of South Carolina and others, is available through The Judicial Research Initiative at the University of South Carolina. The Judicial Research Initiative, Dep't of Political Sci., Univ. S.C., Appeals Courts Data, http://www.cas.sc.edu/poli/juri/appctdata.htm (last visited Mar. 20, 2009). See generally Frank B. Cross, Comparative Judicial Databases, 83 Judicature 248, 248-49 (2000) (contrasting this database to others).
213. More recent data with a larger sample size bear this out
214. Posner is now behaving like a very moderate judge with little ideological leaning. See Epstein et al., supra note 18, at 320 (scoring Judge Posner near the median in the judicial common space).
215. Judge Easterbrook had the fewest cases of these judges with only forty-six coded in the database
216. See Cross, supra note 20, at 1500 ("Given the legal standard's command of some measure of deference to district courts, one would expect that appellees would prevail more often than appellants if circuit court judges were adhering to the legal model.").
217. See Frank B. Cross & Blake J. Nelson, Strategic Institutional Effects on Supreme Court Decisionmaking, 95 NW. U. L. Rev. 1437, 1483-91 (2001) (testing Supreme Court votes based on both legal and institutional deference).
218. See generally Geoffrey P. Miller, Bad Judges, 83 Tex. L. Rev. 431, 431 (2004) (discussing such "bad judges" and their actions).
219. Howard, supra note 115, at 151 tbl.5.8.
220. "Feed Me, Stephanie Seymour!": Supreme Court Feeder Judge Rankings, Underneath Their Robes, Aug. 17, 2004, http://underneaththeirrobes.blogs.com/main/2004/08/feed_me_seymour.html. 199. See sources cited supra note 17.
221. Individual panels face some risk of reversal by their full circuit. See generally Tracey E. George, The Dynamics and Determinants of the Decision to Grant En Banc Review, 74 Wash. L. Rev. 213 (1999) (discussing en banc review).
222. Howard, supra note 115, at 171
223. For a discussion of this theory, see Cross, supra note 20, at 1491-94
224. See Daniel Klerman, Commentary, Nonpromotion and Judicial Independence, 72 S. Cal. L. Rev. 455, 461 (1999) (reporting that during the 1990s, the probability of circuit court judge promotion to the Supreme Court was 3 percent and the probability of district court judge promotion to the circuit court was 6 percent).