How Judges Think
It is a fact of life that judges hold immense power in influencing policy, public opinion, and the law of the land. The power of the judge depends on their court’s position in the hierarchy, the lower the court the more adherent to legalistic standards/rules and precedent it is. So the question becomes: is the judge a state court judge, subject to the whims of higher courts' decisions; or an appellate court judge, who’s making legislative decisions with deference to the precedents and legislative bodies but with more leeway, or are we talking about the nines of the supreme court which is the most independent and has the highest degree of discretion in deciding cases?
The world inside the courts is arcane and mysterious to the average person or the laity. We only hear of major overruling of cases or an enactment of a new ruling that happens to have an immense consequences on our society. But how do these decisions get made? how do judges think?
First and foremost, we need to understand how a judge becomes one in the first place.
Judges don’t become judges until they’ve lived a life and garnered enough experience, tacit knowledge that is, and only then do they aspire to become judges.
Let's focus on the nines: Supreme court judges get appointed by the president and get approved by the senate.
Now, you might think, wait, if that’s the case, then they’re definitely politicians in robes. But hold on, If the employer is the government, what would the employee do, please the employer? make sure they hit the performance metrics so they get a promotion, or a salary raise? That would be true in a standard labor market, but this is a monopsony, and the carrots and sticks (incentives) are absent here.
The role of a judge is more symbolic and poetic than a mere fancy job. The pay is not attractive and wanna-be judges, with their legal experience, can easily land any other job and make 10x what they make as judges, but judges believe that they’re taking the job to wanna do good by their country; they care more about making a dent and their place in society, more than any monetary benefits could confer. There is only one incentive their employer had promised them, and that is independence. "It is true that the president appointed me, but once I’m appointed, it’s for life(unless impeached of course, which defies my wanting to be a judge cause reputation is everything for me) and I make my own decisions in a way that sanctify the law and advance society."
There is no quantitative measure to assess judges’ job. That’s why no one can point out to a judge’s decision and say with certainty that they messed up. Law professors, legal philosophers and law review articles can criticize the work of judges, but you have to realize that there has been an widening bridge between the bar and the bench. Judges are in the arena. Law professors live in their theory land which is why their criticism is usually met with insouciance.
okay, so if judges want us to believe that they’re good and not politically motivated (attitudinal theory), than how do they make their decisions?
Enter legalism, which, in simple terms, means upholding the law to the letter, if it applies to facts of case at hand, or open a tiny room for interpretation and adaptability (distinguishing precedents, overruling precedents, or enacting new rules). Now, the problem with legalists' theory is that legalism is limited in its scope and adaptability, The American legal system is one of case law, it can work on cases(mostly civil) in lower courts that can be adapted to statutes and precedents, but when cases get to the highest court, that means that the issue is more complicated than a legalist way of thinking can solve; it has religious, economic, constitutional interpretation implications, and that's when things become more complicated owing to an ancient constitution that was distributed among loose constructionist, strict constructionists, originalists, textualists, and living constitution advocates; a precedent that doesn't apply anymore, and a dearth of relevant statutory body of law.
You're probably thinking if legalism fails, and judges say they don’t make political decisions, where do they direct their focus then? this is where things get interesting. It is that time again where Judges find themselves in what's called the open area, an area full of uncertainty, and limited knowledge about policies and social consequences. It is where judges decide to put their legislators hat on.
Time is limited and national interest is at stake, what happens in the mind of judges then?
Allow me to put myself in the judge's shoes for a second:
Ok, 1 min mediation; inhale, exhale, phew. what do we have here? let's see: I am a generalist so I need to think about everything super fast and to the best of my knowledge. Where does public opinion stand on this, what does my experience tell me? Should I lean into that? does my gender has any say here? Man, I probably have deep seated biases and beliefs That I am not aware of that are bound to influence my decision, but I wanna do good. I truly do. It’s true that a republican appointed me; or was it a democrat? exactly, that has nothing to do with my decision, right? right? I feel like I already have an intuition about how we should adjudicate this, I need to weigh everything we have here against that and see. But, what if that’s the wrong way to go about it and my intuition succeeds because it was stronger than the facts, policy implications, and future of law. Sorry Bayes, but I can't put all my eggs in your basket. Besides, I want the other judges to respect me, so if the issue doesn’t absolutely warrant dissent, I won’t dissent. Should I dissent, the case will become more popular than ever. Do I want that? It’s really crucial that I show deference to the continuation of the institution of law too. okay, I guess I am ready to make a semblance of a decision now. hey-- my talented law clerk who writes all of my opinions so I have some leisure to think-- show me what you wrote.
Inescapably, there are more factors at play here, but this roughly how judges think under pressure. In short, you cannot say that judges are politicians or absolute legalists, they are more like pragmatist, real pragmatists; they think about the consequences of their decisions in terms of social consequences and ensuring the continuing respect for the law. since they’re still limited humans, they’re prone to be influenced by bias, personality traits, life experience, and yes, sometime political bent.
Lawyers can help judges in lower courts particularly, by bringing to bear legislative data that goes beyond facts of the case and dive into second order implications on real world events.
Respect of statutes, precedent, and a constitution open to interpretations, goes only so far. Fortunately we have an indirect mechanisms to lessen, albeit minimally, the effect of unbound discretion, through congress and the public opinion. The process might not be 100% democratic, But it is democratic nonetheless.
I guess what I've taken from 'how judges think' is that no matter how much your decisions matter in real world consequences, the human element of it all can not be taken out of the decision, there is something not rational about making a decision that can not be put into words. It is just there. Don't try to explain it, even.