It has become a relatively common aphorism, at least in certain circles, that ‘we are all realists now.’ (The we, in this case, are members of the legal community. The rest of society, living in reality, may be asking where have y’all been all this time?) Indeed, legal realist insights have empowered legal movements as diverse as Critical Legal Studies and Law & Economics. Legal realism has also helped empower greater honesty from judges about the nature of the judging process. A variety of judges, ranging from Richard Posner to Patricia Wald, have acknowledged the heavy role of hunch and instinct which first causes a judge to lean towards the eventual direction that their decision will take. However, a ‘hunch’ hardly seems to summon the ‘correctness’ that we expect from the law, nor match the ultimate solemnity of a judicial opinion. If a ‘hunch’ is the driving cause of the ultimate outcome of a judicial decision, which is then subsequently reified into a formal legal document, how much can we trust the final document? Furthermore, a ‘hunch’ hardly accords with the Talmudic process of asthmatic inducing research in dusty law books (or, thanks to technology, carpal tunnel from Westlaw searches) that is supposed to produce the legal certainty and ‘correctness’ that we demand, even as we know it’s a fool’s errand, from the judicial process. (See Roberts, John and his infamous strike zone.) Indeed, how do judges, themselves, manage to summon, in their opinions, the certainty, expressed in at least relatively formal legal reasoning which they undermine with their extra-judicial descriptions of the very same process. If only a legal academic could investigate these pressing issues! The legal academic who does follows after the jump.
Dan Simon is a professor at USC Law School, who also holds a joint appointment in the Psychology department. Professor Simon’s work focuses on psychological examination of the judicial decision making process. Professor Simon is particularly intrigued with the psychological mechanisms that judges display in attempting to achieve coherence and cognitive closure in their judicial opinions.
In his article, a ‘Psychological Model of the Judicial Decisionmaking’, Simon applies a variety of psychological mechanisms to demonstrate how a judge’s conception of a legal question evolves from an initial state of profound conflict of an eventual coherent solution. Simon emphasizes three particular mental processes that judges use to produce certainty and finality in their judicial opinions. First, Gate Keeping is the selective admission of either facts or legal materials (case precedents, statutes, persuasive authorities) to the field of the judicial opinion. Gate keeping can produce very different factual narratives from judges which come down on opposite sides of the same opinion. Second, Bolstering is then applied to the propositions which are admitted into the field of materials which the judge uses to construct his decision. As its name implies, bolstering is selective biased reinterpretations of those same propositions, which somewhat changes their nature and helps to more smoothly construct the ultimate judicial opinion. The process of bolstering has been acknowledged by judicial icons such as Cardozo, who wrote that a judge ‘must (permit himself) a certain margin of misstatement.’ As subsequent factual investigations have demonstrated, Cardozo certainly permited himself that margin. Third, rule selection ultimately determines the outcome of the judicial decision. As amply demonstrated by Karl Llewellyn, a judge has a wide variety of techniques for handling precedent. With so many potential techniques and methods of interpretation a judge will generally not be challenged to find one method which will favor whichever side of the binary result he favors. Simon does not dispute that rules contribute to judicial decisions; rather, rules, by themselves, cannot ‘do the job by themselves’. Simon writes that ‘the applicability of a rule is determined both by the force of the rule itself and by forces induced on it by the global structure.’
Through a meticulous examination of the Supreme Court’s 5-4decision in Ratzlaf v. United States, Simon shows how each side used these techniques to create a fully coherent judicial decision. The two sides, who spanned the typical ideological divide of the court, drew upon the same general mass of legal materials. Each side faced the same six major issues in reaching their decision. However, each side systematically used the techniques discussed by Simon to ensure that every possible piece of legal material favored them, and each of the six issues was therefore resolved in their favor. As Simon writes, there are a ‘motley assortment of propositions whose sole binding theme is that they lend argumentative support to the same decision.’ Most entertainingly, each side was equally vociferous in condemning the faulty reasoning used by the other side. It’s no coincidence that pots, kettles, and supreme court justices all favor the color black.
Simon’s model poses a challenge to the theories of ideal jurisprudence postulated by scholars such as Dworkin. Simon and Dworkin both agree that a process of judicial interpretation and creation works to transform a state of chaotic legal materials into a finished decision. However, Dworkin views the finished decision as representing a ‘single, coherent scheme of justice and fairness.’ For Dworkin, law as integrity demands that judges find coherent schemes which underlie and unify legal practice. However, Simon finds that idealistic model fails to match the reality of judging. In Simon’s psychological model, the judicial style of closure is a natural consequence of the coherence bias. Legal closure in a judicial opinion is not produced by a careful reading of the legal sources but is ‘a feature forced upon the materials.’ Simon ultimately believes that once the pressure for coherence created by the act of judging is removed, the ‘legal materials lose their recently-acquired character, and return to their ambiguous existence within the world of multiple meanings.’