The Oxford Handbook of U.S. Judicial Behavior
Edited by Lee Epstein and Stefanie S. Lindquist
Reviewed by Ruth Geos, Reference Librarian
Attorneys use their skills and experience to focus on advocacy of their claims or defenses: briefing the law and the facts of the case to the court in the most advantageous way, arguing the merits and demonstrating how both precedent and public policy goals support their position. The Oxford Handbook of U.S. Judicial Behavior offers another perspective, using social science empirical analysis to look at the dynamics of judicial decision-making beyond the law of the case. In asking other kinds of questions, these studies see the process of judicial decision-making as taking place with a larger institutional, social, and constitutional construct, subject to internal and external influences. Over a wide range of inquiries, the authors assess studies that measure the personal, psychological, financial, institutional, historical, and political influences that impact judicial behavior and ultimately, judicial decision-making.
By poking behind the curtain of the law in this way, a very different look at the courts is presented: how the courts function both as gatekeepers and reciprocal partners in public policy, with hints for the rest of us to glean along the way as to what might strengthen a case, settlement, an oral argument, or a petition for certiorari.
Some of the statistical rigor presented can be dense, but there is much to appreciate in the methodology, especially in the narratives that are caught in the same sociological net. One fascinating example of a study protocol is the use of plagiarism detection software to evaluate how much content of a lower court opinion or content from amicus briefs are included in Supreme Court opinions as a means of tracking influence from these sources. Meta-analysis from another study shows that ideology is a better predictor of votes at the Supreme Court level than at either the District Court or Circuit Court level. Descriptions about the workings of the courts, and particularly the U.S. Supreme Court, offer compelling inside-views, such as the expanded role of Supreme Court law clerks (who have their own law clerk dining room), describing the “cert pool,” established in the 1970s, by which petitions for certiorari are reviewed initially not by the Justices themselves but by a shared pool of law clerks for six of the eight justices (Justices Alito and Gorsuch currently opting out of the pool). Another chapter considers the influences that may have come to bear on Chief Justice Roberts when he shifted his initial position with the conservatives on the court, to join in the vote to uphold the Affordable Care Act. And a made-for-movie story is that of Chief Justice Burger wanting his childhood friend, Harry Blackmun, on the court, which didn’t turn out well for them, but opened a study into the significance of common social backgrounds.
The Oxford Handbook of U.S. Judicial Behavior is perhaps not the kind of book to read cover-to-cover, but it has treasures to ponder, along with an introduction to a new way of thinking about our court system—and the litigation we lay at its door.