by Eileen Braman. Charlottesville and London: University of Virginia Press, 2009. 256pp. Cloth $45.00. ISBN: 9780813928296.
Reviewed by Paul M. Collins, Jr., Department of Political Science, University of North Texas. Email: pmcollins [at] unt.edu.
Political scientists studying law and courts have long adopted theories and methods from psychology into their analyses of judicial decision making. Yet, there remain two areas we have tended to overlook with regard to the theoretical and methodological leverage offered by psychological approaches. First, political scientists have generally failed to explore the cognitive processes that motivate judicial choice. That is, while we have incorporated a rich body of psychological literature into our studies of judging, we have been slow to explore the mental processes that judges experience as they decide cases. Second, though early analyses of judicial decision making exploited methods developed in psychology, we have not fully taken advantage of the experimental approaches that are the hallmark of our sister discipline.
In her superb new book, LAW, POLITICS, AND PERCEPTION, political scientist Eileen Braman illustrates the theoretical and methodological benefits of adapting approaches from social psychology to explore the determinants of judicial choice. Moreover, she does so while addressing a question of consuming interest to lay and academic audiences alike: if judges believe they are applying the objective rules of legal reasoning in adjudicating disputes, why is it that study after study indicates that attitudes influence judicial decision making? The answer, according to Braman, is that judges partake in motivated reasoning. That is, consciously or not, judges engage in a biased decision making process, viewing evidence and argumentation that supports their attitudes and values more favorably than evidence that contradicts their policy preferences. While others have alluded to this concept, Braman is the first to rigorously explore its theoretical foundations and provide empirical evidence of motivated reasoning in judicial choice. LAW, POLITICS, AND PERCEPTION represents the best of interdisciplinary legal scholarship. By incorporating theories developed in law, political science, and social psychology, Braman lucidly explains how these fields are intimately related and further illustrates how they can be integrated to address questions with significant normative punch.
The book opens with an overview of motivated reasoning and its application to judicial decision making. Braman notes that her analysis represents both a challenge to and an expansion of the dominant theoretical perspective on judicial choice, the attitudinal model, which holds that judges are primarily motivated by their policy preferences. On the one hand, her research challenges the attitudinal model by arguing that, while judges may be motivated by policy [*159] goals, judges sincerely believe they use the tools of legal reasoning to render their decisions. Judges’ beliefs that they are objectively applying the law stems from the reality that they are socialized, in law school and throughout their careers, to suppress their ideologies when adjudicating disputes. On the other hand, her research provides an expansion of the attitudinal model by way of providing the first solid theoretical account of motivated reasoning’s applicability to judicial choice. While Segal and Spaeth (2002: 433) briefly mention motivated reasoning, it is only an afterthought and they take no position as to whether judges consciously or unconsciously allow ideology to directly influence case outcomes. Laying the groundwork for an a priori theory of motivated reasoning alone makes this volume a significant contribution to the literature.
But, Braman does much more than simply provide a rich theoretical account as to why judges may engage in motivated reasoning. That is, the heart of the book provides empirical tests of two mechanisms of motivated reasoning. Chapter 3 focuses on analogical perception. This is the idea that judges may view the similarity of case authority differently, contingent on whether a particular case enables them to further their policy goals. To test this hypothesis, Braman utilizes two experiments. In the first, undergraduate students were given a mock newspaper article describing BOY SCOUTS OF AMERICA v. DALE, a U.S. Supreme Court case involving the Boy Scouts’ decision to dismiss a member of the organization after it was discovered he was homosexual. The subjects were told this case was currently pending before the Supreme Court. After reading the article, subjects were asked to determine how similar various cited authorities were to this case. Braman manipulated the cited authorities such that they involved a gay male (as in DALE), a female, and a black male. In addition, she varied the discriminatory institution, such that it was a scouting organization (as in DALE), an employer, or an insurance company. The results indicated that subjects were able to judge cases similar to DALE as most closely approximating DALE, but, more importantly, the decision makers perceived cases that supported their attitudes as more similar to the target case than identical cases that did not support their policy preferences. In other words, subjects engaged in motivated reasoning with regard to their analogical perceptions of case similarity.
In the second experiment, subjects were given a mock newspaper article that described WAZEERUD-DIN v. GOODWILL HOME AND MISSIONS, a Superior Court of New Jersey case involving whether faith-based treatment services can exclude clients who do not share their religious views. Importantly, Braman employed both undergraduate and law school students in the sample, thus allowing her to compare the cognitive processes of a lay audience (undergraduates) to a legal audience (law school students). As before, Braman manipulated the cited authorities such that the target of discrimination was an Islamic male (as in WAZEERUD-DIN), a gay male, or a black male. She also varied the discriminatory organization such that it was a religious organization (as in WAZEERUD-DIN), a community-service organization, or an insurance company. As in her first [*160] experiment, she finds evidence of motivated reasoning in both samples, although the pattern is stronger and more consistent in the law student sample. This suggests that legal socialization does not necessarily attenuate motivated judgments in terms of analogical perception. Clearly, such a finding has broad implications for our understanding of how judges interpret and apply precedent.
Chapters 4 and 5 explore motivated reasoning by analyzing separable preferences, which refers to whether judges can compartmentalize their reasoning when deliberating over distinct issues raised in a single legal dispute. Here, Braman is particularly interested in determining if decision makers are capable of separating their views on threshold issues, such as mootness and standing, from the substance of core legal questions implicated in litigation. Her empirical test of the seperability of preferences involves presenting subjects with a mock legal brief of INTERNATIONAL ASSOCIATION OF FIREFIGHTERS v. CITY OF FERGUSON. This was an U.S. Court of Appeals for the Eighth Circuit case involving a claim by the wife of a firefighter that her husband’s job was threatened after she attempted to run for public office on the grounds that there existed a city ordinance prohibiting municipal employees from supporting candidates, directly or indirectly, running for city office. The key threshold issue in the case involved whether she had standing to bring the suit since the ordinance did not threaten her directly, but only indirectly through the potential loss of her husband’s employment. The core substantive issue in the dispute involved First Amendment concerns stemming from the fact that the ordinance inhibited her free speech rights. Braman asked a sample of law school students to determine the standing issue and to provide a justification for their decision (thus closely mimicking the role of a judge). The results of Chapter 4 indicate that participants were able to separate their views on the standing issue from that of the free speech issue, but also that participants who supported free speech were more likely to determine that the plaintiff has standing, thereby supporting a motivated reasoning perspective. In Chapter 5, she explores how the subjects justified their decisions, providing compelling evidence that there are sufficient means by which judges can justify policy-driven conclusions based on legal doctrine.
Those skeptical of using experimental approaches to test theories of judicial decision making will no doubt raise concerns as to the validity of Braman’s empirical methodology. Yet, she is appropriately guarded in the interpretation of her results and is careful to acknowledge their limitations. Moreover, by providing an account of motivated reasoning’s applicability to the Rehnquist Court’s Commerce Clause jurisprudence (Chapter 3), in addition to suggesting a host of means by which scholars can test the intuitions derived from motivated reasoning, Braman makes it clear that the use of experimental methods is but one avenue to explore motivated reasoning’s application to judicial decision making.
It is not unfair to say that a good deal of contemporary political science scholarship on law and courts has become engrossed with providing more [*161] and more complex models of judicial decision making, focusing on increasingly sophisticated accounts of judging and methodological innovation to the detriment of more realistic theories of judicial choice. In light of this, LAW, POLITICS, AND PERCEPTION presents a most welcome breath of fresh air. Eighty years ago, Jerome Frank (1930) reminded us that judges are very much human. Yet, with few exceptions, we have forgotten this point. I am hopeful that Eileen Braman’s outstanding volume on motivated reasoning will act as a motivating force, compelling us to more seriously consider the fact that, like all of us, judges are people too and no doubt engage in the same type of biased deliberation that we all partake in on occasion.
Frank, Jerome. 1930. LAW AND THE MODERN MIND. New York: Brentano’s.
Segal, Jeffrey A., and Harold J. Spaeth. 2002. THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED. Cambridge: Cambridge University Press.
BOY SCOUTS OF AMERICA v. DALE, 530 U.S. 640 (2000).
INTERNATIONAL ASSOCIATION OF FIREFIGHTERS v. CITY OF FERGUSON, 283 F.3d 969 (8th Cir. 2002).
WAZEERUD-DIN v. GOODWILL HOME AND MISSIONS, 737 A.2d 683 (N.J. Super. AD 1999).
© Copyright 2010 by the author, Paul M. Collins, Jr.