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An Empirical Study of Judicial Reasoning

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NEW YORK UNIVERSITY LAW REVIEW VOLUM:E 73 NOVEMEBER 1998 NUMBER 5 CHARTING THE INFLUENCES ON THE JUDICIAL MIND: AN EMPIRICAL STUDY OF JUDICIAL REASONING GREGORY C. SISK* MICHAEL HEISE:** ANDREW P. MoRmss*** In 1988, hundreds of federal districtjudges were suddenly confronted with the need to render a decision on the constitutionality of the Sentencing Reform Act and the newly promulgatedcriminal Sentencing Guidelines. Never before has a question of such importance and involving such significant issues of constitutional lan, man- dated the immediate and simultaneous attention of such a large segment of the fed- eral trial bench. Accordingly, this event provides an archetypalmodel for exploring the influence of social background,ideology, judicialrole and institution,and other factors on judicial decisionmaking. Based upon a unique set of written dccisions involving an identical legalproblem, the authors have produced an unprecedented empiricalstudy of judicial reasoning in action. By exploiting this treasure trove of * Professor of Law, Drake University ([email protected]). B.A., 1981, Montana State University, J.D., 1984, University of Washington. In 1988, 1 was a member of a small team of attorneys in the United States Department of Justice leading the government's defense against constitutional challenges to the Sentencing Guidelines in district courts and courts of appeals throughout the nation. I want to thank several people whose support and generous contribution of time and information were essential to this project. John Steer, general counsel, and Mary McDowell, staff attorney, at the United States Sentencing Com- mission, provided thoughtful advice on background research and access to invaluable data, while securing my agreement to protect the confidentiality of judges who had reported oral rulings on the constitutionality of the Sentencing Guidelines in 19S8. Professor Sheldon Goldman of the University of Massachusetts at Amherst very kindly shared information on American Bar Association ratings and racial background of judges from his invaluable database of information, thereby encouraging a young scholar to persevere with this pro- ject. Bill Davis at the National Archives Legislative Records Center spent many hours locating legislative materials on judicial nominees. Others reviewed drafts, provided valua- ble comments on substance and technique, shared data or information, assisted in other ways, or offered encouragement, including Frank Bowman, Robert Carp, Frank Cross, Barry Friedman, Sheldon Goldman, Stanley Ingber, Douglas Letter, Bryan Liang, Deborah Jones Merritt, Thomas Millet, and Kevin Saunders. As my research assistants, 1377 Imaged with the Permission of N.Y.U. Law Review NEW YORK UNIVERSITY LAW REVIEW [Vol. 73:1377 data, the authors have looked deeper into the judicial mind and observed the emer- gence of influences upon the manner in which a judge examined the constitutional issues, adopted a constitutionaltheory, and engaged in legal reasoning. I. Introduction ............................................ 1380 II. Prior Studies, the Present Study, and Their Value and Lim itations .............................................. 1385 A. Prior Empirical Research on Judicial Decisionmaking ..................................... 1385 1. Studies of Social Background and Other Factors Influencing Judicial Decisionmaking ............ 1385 2. The Problems of Incomparability, Inauthenticity, and Superficiality in Prior Studies .............. 1392 B. The Sentencing Guidelines Crisis of 1988 as a Basis for the Study of Judicial Decisionmaking ........... 1396 1. The Sentencing Guidelines Crisis of 1988 ....... 1396 2. The Sentencing Guidelines Cases Database ..... 1407 3. The Value and Limitations of the Sentencing Guidelines Decisions for Empirical Study ...... 1409 a. Resolving the Problem of Incomparability: The Identical Legal Problem ............... 1409 b. Deepening the Search: Analyzing the Content of Judicial Reasoning in Opinions. 1410 Candace Dunley, Drake Law School Class of 1995, skillfully organized numerous judicial background factors into a data ledger, and Julie Bettenhausen, Drake Law School Class of 1998, charted the chronology of precedents and carefully proofed drafts. I gratefully ac- knowledge Drake University for awards of faculty research grants and Deans David Walker and Peter Goplerud and the Board of Governors of the Drake University Law School Endowment Trust for the award of research stipends that supported the completion of this project. Most importantly, I appreciate my coauthors who caught the vision of this project and recognized the richness of the data, and whose determination, hard work, ex- pertise, and wisdom made completion of the project possible. An earlier version of this Article was presented on a panel at the American Political Science Association's 1998 an- nual meeting in Boston. ** Assistant Professor of Law, Director of the Program in Law and Education, Indiana University-Indianapolis ([email protected]). A.B., 1983, Stanford University; J.D., 1987, University of Chicago; Ph.D., 1990, Northwestern University. Generous faculty research grants provided financial support for this Article. My thanks to Barry Friedman, Eric Muller, Ronald Krotoszynkski, and Daniel Cole for comments on the draft. *** Professor of Law and Associate Professor of Economics, Case Western Reserve Uni- versity ([email protected]). A.B., 1981, Princeton University; J.D., M. Pub. Aff., 1984, University of Texas at Austin; Ph.D. (Economics), 1994, Massachusetts Institute of Tech- nology. I thank Deans Michael Gerhardt and Gerald Korngold at Case Western Univer- sity for research support and my coauthors for everything Greg said and more. Thanks to my colleagues Jonathan Entin, Neil Kinkopf, and Ann Southworth, several anonymous promotion and tenure reviewers, and participants at a Cornell Law School faculty seminar for additional suggestions. Imaged with the Permission of N.Y.U. Law Review November 1998] JUDICIAL REASONING c. The Strength and Weakness of Using a Single Legal Problem ....................... 1412 d. Federal District Judges as a Subject of Study ....................................... 1415 I. The Independent Variables ............................. 1417 A. Demographic Variables ............................. 1417 B. Political Variable .................................... 1419 C. Prior Employment Variables ........................ 1420 D. Judicial Role or Institution Variables ............... 1421 E. Promotion Potential ................................ 1423 F. Precedent ........................................... 1427 G. Summary of Independent Variables ................. 1429 IV. The Dependent Variables-Outcome and Reasoning ... 1430 A. Analysis of Judicial Decisions-Outcome as Dependent Variable ................................ 1430 B. Analysis of Judicial Decisions-Reasoning Categories as Dependent Variables ................. 1434 1. Method of Analyzing Opinions ................. 1434 2. Methodology and Summary of Results ......... 1438 a. Constitutional Claims Rulings .............. 1438 i. Separation of Powers-Branch Location ................................ 1438 ii. Separation of Powers-Judge Members. 1441 iii. Non-Delegation Doctrine Rulings ...... 1441 iv. Due Process Claim Rulings ............. 1443 b. Reasoning Approach ....................... 1444 i. Practical Versus Theoretical Reasoning. 1444 ii. Originalist Versus Nonoriginalist Reasoning .............................. 1446 V. Findings and Interpretation ............................. 1451 A. Demographic Variables ............................. 1451 1. Sex ............................................. 1451 2. R ace ............................................ 1454 3. A ge ............................................. 1459 4. Region .......................................... 1460 5. Crime Rate ..................................... 1461 6. Law School Education .......................... 1463 B. Political/Ideological Variables ....................... 1465 C. Prior Employment Variables ........................ 1470 1. Criminal Defense Lawyer ....................... 1470 2. Government/Political Positions .................. 1473 a. Prosecutorial Experience ................... 1473 b. Political Experience ......................... 1474 Imaged with the Permission of N.Y.U. Law Review 1380 NEW YORK UNIVERSITY LAW REVIEW [Vol. 73:1377 c. Executive, Legislative, and Judicial Positions .................................... 1475 3. State or Local Judge ............................ 1477 4. Military Service ................................. 1478 5. Law Professor .................................. 1479 D. Judicial Role or Institution Variables ............... 1480 1. American Bar Association Rating .............. 1480 2. Caseload/Workload ............................. 1483 3. Seniority on the Federal Bench ................. 1486 E. Promotion Potential Factor ......................... 1487 F. Precedential Influences ............................. 1493 V I. Conclusion .............................................. 1498 I INTRODUCTION Either it is not the same or it is not real-lack of comparability among cases or the absence of authenticity are the Scylla and Charyb- dis of empirical study of judicial decisionmaking.' A study of judicial behavior based on a large sample of real decisions is inevitably weak- ened by incomparability caused by differences in parties, time period, issues, and facts. A study that escapes the pitfall of incomparability
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