WEBVTT NOTE Judicial Decision-Making: An Austrian Perspective 1 00:00:00.000 --> 00:00:08.640 Welcome to a little bit of a political science version of Austrian analysis. 2 00:00:08.640 --> 00:00:15.360 The concern I had with political science theories is that they seem to be too narrowly focused 3 00:00:15.360 --> 00:00:22.840 on predictive qualities and so forth, and not as much so on, explaining why judges decide 4 00:00:22.840 --> 00:00:24.520 cases the way they do. 5 00:00:24.520 --> 00:00:31.200 So this paper I focus on the Supreme Court, it's more interesting to most and it's easier 6 00:00:31.200 --> 00:00:33.920 to follow along. 7 00:00:33.920 --> 00:00:42.920 So the predominating models of judicial decision-making include one is the legal model and another 8 00:00:42.920 --> 00:00:47.960 is the attitudinal model and this is where much of the debate exists. 9 00:00:47.960 --> 00:00:53.580 The legal model, which is familiar with everyone, especially lawyers and judges, that the rule 10 00:00:53.580 --> 00:01:08.580 The rule of law and the facts of the case determine the outcome, so the judges look over the case and decide objectively what the best decision may be, they're not supposed to include their own biases and so forth. 11 00:01:08.580 --> 00:01:14.520 However, the attitudinal model made popular recently 12 00:01:14.520 --> 00:01:19.740 by Siegel and Spath posits that the legal understandings 13 00:01:19.740 --> 00:01:22.560 or the legal model which is based 14 00:01:22.560 --> 00:01:27.980 on this observance of the rule of law is hogwash. 15 00:01:27.980 --> 00:01:33.020 Instead of reasoning through cases and precedents, 16 00:01:33.020 --> 00:01:36.140 judges simply decide what their policy preferences are, 17 00:01:36.140 --> 00:01:39.860 and they rationalize using previous cases. 18 00:01:39.860 --> 00:01:42.180 And this makes sense to us. 19 00:01:42.180 --> 00:01:44.660 We understand that most people make decisions 20 00:01:44.660 --> 00:01:46.860 or all people make decisions based on their preferences. 21 00:01:46.860 --> 00:01:49.820 What they want to see happen in the future, 22 00:01:49.820 --> 00:01:51.740 that dictates their decisions. 23 00:01:54.060 --> 00:01:56.500 So the problem I have with the two 24 00:01:56.500 --> 00:01:59.720 is that because of this narrow focus on predictability, 25 00:01:59.720 --> 00:02:02.380 one tries to kick the other one out. 26 00:02:02.380 --> 00:02:03.540 As Siegel and Spaeth put it, 27 00:02:03.540 --> 00:02:10.100 because they predict 7% of the cases more accurately than the legal models do that they 28 00:02:10.100 --> 00:02:14.320 should be the one that exists and we should throw out all considerations of the institution 29 00:02:14.320 --> 00:02:15.920 of legal training. 30 00:02:15.920 --> 00:02:21.040 So I propose that we change, that political scientists should offer or should have a change 31 00:02:21.040 --> 00:02:22.040 in focus. 32 00:02:22.040 --> 00:02:28.660 Instead of which one predicts better, we should see how and to what extent do institutions 33 00:02:28.660 --> 00:02:34.900 and institutional changes affect the advancement of those preferences. 34 00:02:34.900 --> 00:02:42.780 Now to give an example, the debate that's going on between the two, we can illustrate 35 00:02:42.780 --> 00:02:50.100 it with just a 16-year-old boy who wants to buy a car, his first car, and what's going 36 00:02:50.100 --> 00:02:55.340 on is you have, let's imagine you have two camps, you want to predict what kind of car 37 00:02:55.340 --> 00:02:56.340 this boy is going to buy. 38 00:02:56.340 --> 00:03:04.340 Now we know that his number one preference is for a Corvette. He likes a Corvette, you know, it's got a V8 engine, got a lot of power, and so that's at the top of his preferences. 39 00:03:04.340 --> 00:03:10.340 And he also has the option of buying a Kia. It's a four-door, it's not as sporty, but it gets better gas mileage. 40 00:03:10.340 --> 00:03:19.340 So he has to weigh the pros and cons, and the 16-year-old boy, you know, with everything else, you know, as is, he's going to take that Corvette. 41 00:03:19.340 --> 00:03:30.340 Now, the attitudinalist approach to this would be, well, we want to determine that this boy is going to buy the Corvette if he has enough money in his pocket. 42 00:03:30.340 --> 00:03:38.340 We'll call this the money in the pocket model of 16-year-old new car buying boy decision making. 43 00:03:38.340 --> 00:03:45.340 And then you have the opponents of this who say, well, that can't be the case because we have insurance to consider. 44 00:03:45.340 --> 00:03:47.540 Insurance premiums would be way too high, 45 00:03:47.540 --> 00:03:49.060 and so we're gonna have the insurance model 46 00:03:49.060 --> 00:03:51.220 of predicting this output. 47 00:03:51.220 --> 00:03:52.100 Both of them are fighting 48 00:03:52.100 --> 00:03:54.300 because one predicts better than the other, 49 00:03:54.300 --> 00:03:56.500 and so we should kick the other one out, right? 50 00:03:56.500 --> 00:03:59.360 Well, we all know that more considerations 51 00:03:59.360 --> 00:04:03.180 go into the purchasing habits of a 16-year-old boy. 52 00:04:03.180 --> 00:04:05.380 You know, they have to deal with the pressures 53 00:04:05.380 --> 00:04:07.340 from mom and dad who don't want to see him 54 00:04:07.340 --> 00:04:09.620 in a two-door sports car with a V8 engine, 55 00:04:09.620 --> 00:04:12.540 and also the pressure of friends and so forth 56 00:04:12.540 --> 00:04:13.820 who would like to be able to ride around 57 00:04:13.820 --> 00:04:16.980 and a Convertible Corvette. 58 00:04:16.980 --> 00:04:20.580 So we have the similar thing going on here. 59 00:04:20.580 --> 00:04:26.140 And so to understand how that boy is going to buy that car, 60 00:04:26.140 --> 00:04:28.300 yes, we need to know how much money he has on hand. 61 00:04:28.300 --> 00:04:30.460 But we also need to know how important 62 00:04:30.460 --> 00:04:33.820 the institutional constraints on him are. 63 00:04:33.820 --> 00:04:38.220 And so if we start from the free market point of adjudication, 64 00:04:38.220 --> 00:04:39.940 we have no government. 65 00:04:39.940 --> 00:04:43.100 And when we have disputes lit against, 66 00:04:43.100 --> 00:04:47.900 will have to find a third party to resolve their case. 67 00:04:47.900 --> 00:04:50.740 And so that third party is incentivized by something. 68 00:04:50.740 --> 00:04:52.820 Now, in order for those two parties 69 00:04:52.820 --> 00:04:57.660 to agree upon someone to handle the case, 70 00:04:57.660 --> 00:04:59.240 right off the bat, people have concerns. 71 00:04:59.240 --> 00:05:03.420 Well, one party is just going to find a judge who 72 00:05:03.420 --> 00:05:05.260 will side with him. 73 00:05:05.260 --> 00:05:08.660 I pay him money on the side, and he decides my case, right? 74 00:05:08.660 --> 00:05:10.260 Well, in the free market, there would 75 00:05:10.260 --> 00:05:20.260 So there would be an incentive for those judges to act according to a profit, the profit incentive is maximized by just adjudication, right? 76 00:05:20.260 --> 00:05:35.260 In order for that judge to get customers, if you don't go from one case to the next, people have to be confident that he's going to be objective and he's not going to base his decisions upon the side payments of one of the parties. 77 00:05:35.260 --> 00:05:40.780 Force and free market, you don't have the show of force, the judges wouldn't be able 78 00:05:40.780 --> 00:05:46.140 to enforce their decisions by gunpoint, and so ostracism would be used instead, so we 79 00:05:46.140 --> 00:05:49.940 understand that. 80 00:05:49.940 --> 00:05:56.480 We have two considerations that are recognized by political scientists and within the models 81 00:05:56.480 --> 00:06:03.020 of judicial decision making, but their institutional concern is much too limited. 82 00:06:03.020 --> 00:06:09.060 are interested in how Congress or the presidency affects judicial decision making. 83 00:06:09.060 --> 00:06:13.900 So in the case of Congress, the political scientists would want to see, okay, what's 84 00:06:13.900 --> 00:06:17.660 the makeup of Congress and what's the makeup of the court? 85 00:06:17.660 --> 00:06:26.300 The court has to temper its decision based on the fear of having their jurisdiction reduced 86 00:06:26.300 --> 00:06:32.020 or eliminated or a law changing their decision forever. 87 00:06:32.020 --> 00:06:36.780 and then there's also a strategic model of decision making which is more specifically 88 00:06:36.780 --> 00:06:42.740 concerning the certification process or the cert process which they vote on cases that 89 00:06:42.740 --> 00:06:48.420 they come in on the dock whether or not to hear them so an interesting point about that 90 00:06:48.420 --> 00:06:54.140 is that you only need a minority of votes I believe it's four to hear a case so you 91 00:06:54.140 --> 00:07:01.840 could have a case where there are three judges who really want to hear it and the other 92 00:07:01.840 --> 00:07:08.480 The other six don't, not much, but maybe you have someone in the middle that, okay, I'll hear it if, right? 93 00:07:08.480 --> 00:07:13.320 So you can run into situations where there's a strategic way for judges to vote, 94 00:07:13.320 --> 00:07:20.720 so you're dependent more on the moderate judges here on furthering either a conservative or a liberal cause. 95 00:07:20.720 --> 00:07:25.720 And within that they have, this can be seen through the jurisprudential and the outcome mode. 96 00:07:25.720 --> 00:07:45.280 The jurisprudential mode is the mode in which the judges are apparently don't really care about a public policy preference and you're more likely to see the 9-0 decisions here, but not necessarily, of course, versus the outcome mode where the judges are very interested in the policy outcomes, like a highly contentious case. 97 00:07:45.280 --> 00:07:55.880 What happens here is when they go through an outcome or a jurisprudential mode, they have to determine whether or not the case will be a great vehicle for furthering their cause, whatever that is. 98 00:07:55.880 --> 00:08:07.080 So if a case comes to them that one justice wants to advance a certain cause, but it's a bad case, it's not going to provide a very good precedent, they might pass over it. 99 00:08:07.080 --> 00:08:07.880 They're not going to vote for it. 100 00:08:07.880 --> 00:08:12.880 Even though they want that policy, they're going to skip that, wait until a better case comes along. 101 00:08:12.880 --> 00:08:19.880 So there are institutional effects within the court itself to decide whether or not the court hears a certain case. 102 00:08:19.880 --> 00:08:25.880 Now the effect of government institutions here, pretty straightforward. The Constitution sets the tone. 103 00:08:25.880 --> 00:08:29.880 We can imagine lifetime tenure, how that affects judicial decision making. 104 00:08:29.880 --> 00:08:33.880 It states what their jurisdiction is. 105 00:08:33.880 --> 00:08:41.880 They're allowed a monopoly on the final arbiter of a law. 106 00:08:41.880 --> 00:08:52.880 And they have the use of force behind them now, we all know how that can affect it, and however the important distinction here is that power replaces the profit incentive for the judges. 107 00:08:52.880 --> 00:09:07.880 So no longer does the judge have to, not so much concerned with the just outcome as much as he's able to grab more power for the court here. 108 00:09:07.880 --> 00:09:29.880 Now this can be just simply viewed with just by looking at the number of important or cases over the course of the history of the court and I looked at three major political events here and we have Adams Court Packing Scheme, the Civil War and then FDR's Court Packing Scheme. 109 00:09:29.880 --> 00:09:37.880 Now, we usually don't call Adam's court packing, you know, or we don't usually call it a court packing, but it really was the first court packing scheme. 110 00:09:37.880 --> 00:09:43.880 It was just the successful one, right? And the midnight judges, he was able to get a lot of Federalists on the court. 111 00:09:43.880 --> 00:09:51.880 Because why? He was scared that the structure of the court would not institutionally protect the Federalist causes. 112 00:09:51.880 --> 00:09:56.880 So one way to do that is to put as many Federalist judges as you can on there as possible. 113 00:09:56.880 --> 00:10:05.880 And the Civil War, of course, is the next. This ended the threat of nullification and secession from the states. 114 00:10:05.880 --> 00:10:19.880 And we can see there that without a legitimate threat of the states, that relates significantly to the free market example of judicial decision making. 115 00:10:19.880 --> 00:10:29.880 In a free market, this is the gypsonian idea of concurrent review, where the states would be able to decide for themselves whether or not they agree with it, correct? 116 00:10:29.880 --> 00:10:38.880 So, by getting rid of that, that increases the power grabbing capabilities of the Supreme Court. 117 00:10:38.880 --> 00:11:01.880 And of course, the FDR's court packing scheme, which changed the, since the Civil War won the federal state battle, that was over with. Now, under the FDR's effect, was that the judges could focus more on their policy preferences, specific policy preferences, not just federal state battles. 118 00:11:01.880 --> 00:11:30.880 So the first example was the Marbury versus Madison, Chief Justice John Marshall was the Chief Justice at this time, and there are two possible paths that they could have taken, and that was the Marshallian judicial review, which ended up to succeed, and the Jeffersonian concurrent review, and this of course was the freer market version between the two paths. 119 00:11:30.880 --> 00:11:44.880 Now the institutional effects of this is that Marbury and Madison, you know, there was less consideration for other branches and state preferences, greater judicial authority and power, and this resulted in longer judicial tenure. 120 00:11:44.880 --> 00:11:53.880 Those of you who know any court history, the first, you know, before Jefferson was elected president, there wasn't that prestigious to be a Supreme Court Justice. 121 00:11:53.880 --> 00:11:57.880 Why? Well, because they didn't perceive it as having that great of power. 122 00:11:57.880 --> 00:12:06.960 John Jay retired from his position to go be governor of, I forget which state now, and 123 00:12:06.960 --> 00:12:10.560 there were other judges who were appointed that never even bothered showing up. 124 00:12:10.560 --> 00:12:17.880 But after judicial review and Marshall's establishment of judicial review, people could see the Supreme 125 00:12:17.880 --> 00:12:24.560 Court as being a vehicle for having powerful influence in federal government. 126 00:12:24.560 --> 00:12:28.600 And so what happens here is Marbury versus Madison specifically opens the door for Martin 127 00:12:28.600 --> 00:12:36.080 versus Hunter Lessie, which allows the Supreme Court to question or review the decisions 128 00:12:36.080 --> 00:12:38.040 of state Supreme Courts. 129 00:12:38.040 --> 00:12:45.400 And as you can see here, this first source from the University of Houston, it's rating 130 00:12:45.400 --> 00:12:49.360 the most significant or milestone decisions in Supreme Court history. 131 00:12:49.360 --> 00:12:53.880 And you can see that in the 1790s, before Jefferson, there was only one, they regard 132 00:12:53.880 --> 00:12:57.480 are only one significant decision. 133 00:12:57.480 --> 00:12:59.720 And then after judicial review, then we 134 00:12:59.720 --> 00:13:01.440 started seeing an increase. 135 00:13:01.440 --> 00:13:03.800 But it's still relatively low to these others. 136 00:13:03.800 --> 00:13:06.800 After Civil War, you can see it balloons. 137 00:13:06.800 --> 00:13:09.600 It more than doubles throughout the decade. 138 00:13:09.600 --> 00:13:15.160 And then we see in the 30s, once FDR is in power, 139 00:13:15.160 --> 00:13:23.040 you see almost another double of milestone decisions. 140 00:13:23.040 --> 00:13:25.520 This here is from constitution.org, 141 00:13:25.520 --> 00:13:29.880 which is a lot more friendly with the limited government 142 00:13:29.880 --> 00:13:30.800 angle. 143 00:13:30.800 --> 00:13:36.280 And as you can see, they also place the kind 144 00:13:36.280 --> 00:13:38.680 of steady influence early. 145 00:13:38.680 --> 00:13:40.480 But then after the Civil War, you 146 00:13:40.480 --> 00:13:43.600 see a doubling of the milestone decisions. 147 00:13:43.600 --> 00:13:46.360 And then again, almost another doubling 148 00:13:46.360 --> 00:13:50.120 of the milestone decisions. 149 00:13:50.120 --> 00:13:52.560 And before you think that, OK, after all of this 150 00:13:52.560 --> 00:13:57.760 This is done, the Supreme Court has settled the federal-state power structure, all the 151 00:13:57.760 --> 00:14:00.840 power is going toward them. 152 00:14:00.840 --> 00:14:06.920 The illustration of how a case that could seemingly be returning power back to the states, 153 00:14:06.920 --> 00:14:10.640 but really doesn't, can be illustrated by the District of Columbia versus Heller. 154 00:14:10.640 --> 00:14:19.040 This was the handgun case, and while this was a celebration at first glance, U.S. versus 155 00:14:19.040 --> 00:14:26.120 Dr. Dorrisen and Mullinex versus BATF illustrates how the Supreme Court was able to grab power 156 00:14:26.120 --> 00:14:32.720 or grab influence in this right to bear arms area. 157 00:14:32.720 --> 00:14:40.420 Because the first, or these two, in both opinions, Scalia and, I don't know if you wrote the 158 00:14:40.420 --> 00:14:49.000 other one, but they stated that Heller, the supposedly second amendment protecting case, 159 00:14:49.000 --> 00:14:55.880 didn't allow unlimited access to the right to bear arms, and that you could. 160 00:14:55.880 --> 00:15:04.440 And so now we have two cases built upon the first, but they create more powerful influence 161 00:15:04.440 --> 00:15:10.320 from the Supreme Court over the right to bear arms. 162 00:15:10.320 --> 00:15:16.400 And so the Austrian approach to understanding judicial decision making can be illustrated 163 00:15:16.400 --> 00:15:22.440 with Garrison's comparison are his two causes of depressions, you know, illustrating that 164 00:15:22.440 --> 00:15:26.540 inflation on the one hand can cause it as it did during the Great Depression and then 165 00:15:26.540 --> 00:15:32.680 expanding fiscal policy such as taxing and spending to create later depressions. 166 00:15:32.680 --> 00:15:35.220 The same thing can be said for judicial decision-making. 167 00:15:35.220 --> 00:15:41.960 There are two influences on Supreme Court decision-making, the preferences of the justices 168 00:15:41.960 --> 00:15:47.460 to themselves, and the institutions that incentivize their use of them or constrain them. 169 00:15:47.460 --> 00:15:52.040 And so again, I recommend a change in focus for political scientists. 170 00:15:52.040 --> 00:15:55.320 We know that preferences matter. 171 00:15:55.320 --> 00:15:58.120 This is something that economists have known for some time. 172 00:15:58.120 --> 00:16:07.440 Why it took until 2002 for political scientists to settle upon that is kind of funny. 173 00:16:07.440 --> 00:16:11.880 So the change of focus should be how does institutional changes, how do they affect 174 00:16:11.880 --> 00:16:18.880 The Advancement of a Justice's Preferences. Thank you.