Comparing Ideological Decision Making in High Courts Udi Sommer, Associate Professor Tel Aviv University, Department of Political International Masters Prgoram in Conflict Resolution and Mediation Tel Aviv University Janury 2015

2 Major Contributions 1.The first to develop a theoretical framework to study the Attitudinal Model in various high courts (the model has only been studied in the US, Canadian, Israeli and Australian courts). 2.The project creates a measurement strategy (the first of its kind) to allow to empirically compare attitudinal decision making in high courts across different nations. Sommer, ConfRes ResMeth, January 2015

Why is comparing attitudinal decision making important? The scarcity of comparative research is by no means a reflection on its importance. Effects of justices' ideologies on their rulings has implications for the normative role of the judiciary in any democratic system (Dahl 1957; Funston 1975; Segal and Spaeth 2003) Especially true in this age of global judicial empowerment (Tate and Vallinder 1995; Hirschl 2004) Sommer, ConfRes ResMeth, January 2015

Why important? (2) A key test for the consequences of institutional arrangements (Epstein an Knight 1998) Used to explain trust in courts; judicial legitimacy; judicial activism (Gibson’s work) Assessment of the effects of institutional reforms. Sommer, ConfRes ResMeth, January 2015

How we normally measure political preferences Attempt to measure ideology independently of specific rulings. Two key sources: 1.Based on party ID and appointment process (e.g., in the United States - party or ideology of appointing president) 2.Based on expert opinion (e.g., content analysis of editorials published in key journals prior to appointment). Sommer, ConfRes ResMeth, January 2015

Key measurement (and theoretical) issues The problem: In many Common Law systems judicial appointments are not as political and public + Justices tend to keep their political affiliations to themselves.  It is difficult to identify judicial attitudes independent of rulings  And, anyway it might be unwise to do so theoretically (entails a formalistic view of law as separate from ideology).

Theory and assumptions Law and politics are intertwined. All judicial decisions have both legal and political components that are linked. The political component is the justice’s ideological worldview on the issue area The legal component is current law, when law is not the aggregation of text, intent and precedent. It is a shared mindset and common way of thinking among jurists (Richards and Kritzer 2002). Sommer, ConfRes ResMeth, January 2015

Law is inseparable from political preference The law is a shared mindset We operationally define the law as what supreme court justices say the law is, in a particular issue area and at a particular time. Captures the dynamics and relativity of the concept of law, and Supreme Court justices in Common Law systems really do create law. This is not to say that the agreed upon law is not ideological, but only that it is the current law. Sommer, ConfRes ResMeth, January 2015

Methodology of the scale Three parameters determine the score in each issue area: (1)Consistency in ideology of justices’ votes. (2)Dissent rate. (3)Contentiousness among the brethren (MWC). The scale is representative of a limited timeframe. Not intended to provide proof for a universal attitudinal decision making mode. Sommer, ConfRes ResMeth, January 2015

Calculating the scale n = number of votes of all justices (j) J = number of justices Number of dissents / majority votes (liberal) Number of dissents / majority votes (conservative) maximum number of consistent dissents / majority votes Sommer, ConfRes ResMeth, January 2015

Calculating the scale (2) The consistency of dissent / majority votes in an ideological direction The score for an individual justice Scale in issue area (in a specific court) Sommer, ConfRes ResMeth, January 2015

Institutional variation and hypotheses Institutional differences between the courts are likely to produce different degrees of sincere attitudinal voting: 1. Judicial appointments USSC > CSC > India > Israel = Philippines 2. Panel effects USSC = CSC > India = Israel = Philippines 3. Caseload and agenda setting USSC = CSC > India = Israel = Philippines 4. Religious Rights in India 5. Political Rights in the Philippines Sommer, ConfRes ResMeth, January 2015

Robustness and validity Sommer, ConfRes ResMeth, January 2015

Robustness and Validity (2) Sommer, ConfRes ResMeth, January 2015

Robustness and Validity (3) Sommer, ConfRes ResMeth, January 2015

Scale Results Sommer, ConfRes ResMeth, January 2015

Conclusions We find support for the theory that compares judicial decision making in high courts of different countries, with special attention to the effects of institutional environment and political context. On the empirical side, CAM seeks to further advance comparative judicial studies in line with current comparative institutional scholarship. Enables scholars to estimate and compare attitudinal decision making in all supreme courts with reasoned individual opinions (based on Common Law legal systems). Possible to compare over time or across issue areas. Sommer, ConfRes ResMeth, January 2015

Scale Results Sommer, ConfRes ResMeth, January 2015