Judges and Ideology: Public and Academic Debates about Statistical Measures

Scholars who use empirical methods to study the behavior of judges long have labored in relative obscurity, unknown outside of academic circles (and indeed they only recently have emerged into the mainstream of the legal academy). However, the seclusion of the ivory tower has been breached as public attention has become increasingly focused upon studies that suggest the influence of ideological or partisan variables upon the outcomes of court cases. Over the last few years, the statistical work of scholars on judicial decisionmaking has provoked controversy in the wider legal community and has been enlisted by one side of the ongoing debate in the political arena about appointment of federal judges. In this Article, we begin by highlighting three episodes in which empirical legal scholarship on judicial decisionmaking emerged from obscurity to become the subject of disputation in a larger societal or academic arena--two disputes that unfolded before the public eye and another which was played out at the highest level of legal academic discourse. We outline each controversy; identify the prominent political, judicial, and academic players that initiated or were drawn into the debate; briefly describe the empirical research involved; and summarize the opposing arguments concerning the implications of the research for public policy or the substance of the academic debate. Next, through separate accounts pertinent to each venue/subject--the public/policy versus the academic/methodological--we submit new evidence for consideration, which is drawn from our own continuing research on decisionmaking in the lower federal courts. We report the results of our comprehensive empirical study of religious freedom decisions in the federal district courts and courts of appeals, the most extensive and multi-faceted study of such decisions to date, with special focus here upon variables that attempt to quantify the anticipated ideological leanings of judges. As frequently but not invariably found in other studies, ideology emerged as significant in certain aspects of our study, but not in a ubiquitous or dominating manner. Finally, we attempt to place each of these controversies, the public and the scholarly, into a larger context, suggesting a more nuanced appreciation of the public policy implications of empirical work and submitting that it is unwise to make expansive assertions on either policy or methodological grounds regarding statistical analysis of judicial behavior