The Way Forward
We have tried in this book to add to the growing knowledge of judicial behavior, specifically the behavior of federal judges appointed in conformity with Article III of the Constitution (that is, district judges, circuit judges, and Supreme Court Justices). We have done this mainly by using statistical methodology to test hypotheses derived from a labor-market model of the judicial utility function—the weighted summation of a judge's preferences and aversions. We have shown, by what we believe to be a more comprehensive analysis than can be found in previous studies, that ideology influences judicial decisions at all levels of the federal judiciary. But the influence is not of uniform strength—we have found, for example, that it diminishes as one moves down the judicial hierarchy— and it does not extinguish the influence of conventional principles of judicial decision-making (what we call "legalism"); federal judges are not just politicians in robes, though that is part of what they are (in a noninvidious sense of "politician," as they are rarely partisan), owing to the indeterminate character of many cases to legalist analysis.
Moreover, ideology and a commitment (albeit qualified) to legalism do not exhaust the judicial utility function. We have found that like other workers judges exhibit in their judicial behavior leisure preference and, something that includes but goes beyond leisure preference, effort aversion—as when appellate judges yield to the views of colleagues rather than insisting on dissenting every time they hold contrary views, or dissent less frequently the heavier their caseload grows. A further example is the rules of standing that limit access to the federal courts. From the legalist standpoint that still dominates academic legal scholarship and judicial rhetoric, those rules are found in the text of Article III of the Constitution. Actually the text and the eighteenth-century practices that inform it do not dictate those rules; judges' desire to limit their workload should be taken seriously as a motivator of standing doctrine, and likewise the desire to limit types of litigation likely to conflict with a judge's ideological desires. We have also presented evidence that many judges, like many other workers, angle for promotion, that some seek celebrity status, and that such common judicial behavior as asking questions of lawyers at oral argument have more personal causes than just trying to apply "the law."
Many previous studies of judges, whether done by political scientists or by law professors, and whether conducted from a realist or a legalist perspective, have implicitly assumed that a judicial vote is costless and is therefore invariably cast in accordance with the judge's preferred outcome of the case. That is why the existence of dissent is an embarrassment for a legalist (for why cannot judges reason their way to an agreed-upon outcome, in all but the rarest cases?), while the existence of unanimity, especially in a court known to be ideologically diverse, such as the U.S. Supreme Court, is an embarrassment to the realist. More than 30 percent of Supreme Court decisions are unanimous—but by the same token, more than 60 percent have dissents, which is inexplicable except in terms of ideological division, unless one navely accepts that the various methodologies that different Justices purport to employ, such as originalism and "active liberty," are, though inconsistent, at least ideologically neutral.
The puzzle dissolves when effort aversion, which implies dissent aversion, is factored into the picture. It strengthens the realist approach by showing why rationally self-interested judges may often decide to mute disagreement, especially when the ideological stakes in a case are small, as they are even in a substantial number of Supreme Court cases, as we showed in chapter 3.
Although this book is the fullest statistical study of judicial behavior of which we are aware (and the only one, we believe, to consider all three levels of the federal judiciary and their interactions and to be thoroughly grounded in a realistic conception of judicial incentives and constraints), it is, unavoidably, far from comprehensive. We devote the balance of this conclusion to a discussion of promising areas for further research. We limit discussion to research that bears directly on the topic of this book—the behavior of federal judges—and disregard the many other interesting and important topics regarding judicial systems and the adjudicative process.