Bryan D. Lammon has posted his paper “What We Talk about When We Talk about Ideology: Judicial Politics Scholarship and Naive Legal Realism (forthcoming 83 St. John’s Law Review (2009)) on SSRN. Here’s the abstract.
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A large and growing body of law and psychology scholarship has posed new challenges to traditional assumptions about the behavior of legal actors. While mainstream legal thought has often treated individuals as more or less rational, autonomous actors, scholars in a variety of fields are presenting a new, empirically based, and more formal challenge to the law’s traditional conceptions of human behavior. One area with especially great potential is the use of psychology to improve our understanding of one of the more persistent questions of legal theory: How do judges decide cases? While law and psychology scholars are changing the way we think about the behavior of legal actors, the psychology of judicial behavior has gone relatively unexplored.
However, another school of thought on judicial behavior has made recent inroads into legal scholarship. In a field commonly known as “judicial politics,” political scientists (and more recently, legal scholars) have endeavored to uncover the determinants of judicial behavior using the tools of statistical analysis. While a few legal scholars outside of judicial politics have suggested that it should inform legal theory judicial politics as a field of study has been embraced by a few, regarded as unremarkable or obvious by some, and rejected by others. I suspect that this mixed reception is due in part to much of the scholarship being somewhat unclear in what it exactly means. That is, much of political science scholarship quite clearly suggests that judging is ideological. What “ideological” means, however, is much less clear. A bit of reading between the lines reveals that much of judicial politics scholarship conceives of ideology predominantly as partisan politics. Along these lines, much of the scholarship presents an image of judges as consciously and actively promoting a political agenda.
This conception of ideology and ideological judicial decisionmaking, however, is quite unsatisfying. It conceives of ideology predominantly in political or partisan terms, and, bearing the influence of traditional notions of individual rationality and autonomy, it portrays judges as rational actors that can consciously impose their policy preferences through their decisions. This portrayal reflects the same conception of rational, wholly autonomous individual behavior that law and psychology is challenging. However, even if one rejects judicial politics’ conception of ideology and its influence, one still must contend with the reams of empirical research that judicial politics scholars have amassed.
This lack of clarity coupled with scores of empirical studies that one cannot easily dismiss creates a number of problems for legal scholars. First, judicial politics effectively characterizes judicial decisionmaking as party politics. In so doing, it misunderstands the human side of judging and perverts our understanding of judicial behavior. Second, as noted above, some legal scholars are calling for the incorporation of judicial politics scholarship into legal scholarship. Yet, before turning to the normative implications of judicial politics scholarship, it is important to clarify what exactly this scholarship means. Finally, the language and conclusions of judicial politics scholarship enflame the myth of judicial activism.
In this Article, I look to the social psychological theory of naive realism in order to understand the empirical findings of judicial politics scholarship. Naive realism begins with the social psychological truism that all perception is subjective. However, we often fail to recognize the subjectivity of our own perception, instead believing that we are privy to the objective realities of the outside world. The problem of this disparity between how we think we see the world (objectively) and how we really see the world (subjectively) is that we often fail to appreciate the subjectivity of both our own and others’ perception. An appreciation of the subjectivity of perception central to naive realism indicates that what might appear to be political or partisan or “ideological” decisionmaking is instead the result of the inevitable influence of human decisionmakers perceiving their world subjectively.
This Article, however, is not confined to an internal debate between two approaches to judicial behavior – one based in psychology and one based in political science. In this Article, I also hope to show how the study of judicial behavior can inform legal theory. Throughout this piece, I hope to show how modern psychology can inform wider perspectives on judicial decisionmaking and legal theory in general.