Quantitative Analysis of Judicial Voting

Abstract

Empirical research on voting in constitutional cases is so difficult because there are so many potential influences on judges and such tremendous variance across countries. Some countries have written constitutions and some do not. For those that do, the scope of the rights and freedoms varies widely. Some countries have special courts to deal with constitutional matters while others allow lower courts to hear initial applications with appeals going to a generalist high court. At an even more basic level, empirical study of constitutional voting, and on judicial decision-making more generally, is made more challenging by the fact that there is not even a clear, agreed upon theory of how judges make decisions. As we will see, various models of how judges decide have been explored from the legal model (judges follow the law) to the widely used attitudinal and strategic models (examining the degree to which judges follow their personal preferences) and more recently a labour market model and explorations of other dimensions of judicial decisions.

In this paper we discuss empirical analysis of the various influences on judicial voting in constitutional cases. We begin with a brief discussion of what we are aiming to study – the judge’s vote – before turning to the judges themselves in Part 2. Does one judge vote differently from another because they are different people, with particular political or world views and certain characteristics such their gender? Studying how a judge’s attitudes influence her voting is a long-standing line of inquiry in empirical legal studies and political science. However, not surprisingly, a judge may also care about the law itself. For example, a judge may vote differently in a case involving striking employees if there is a broadly written right to association as opposed to a specific right to strike. What if there is no written constitution at all but instead some unwritten constitutional principles? Part 3 examines some approaches to determining how such differences in constitutional law may influence judges. Part 4 turns to the institutional structure surrounding the judge such as the structure of the court, the nature of the political system, and even the norms of decision-making by the judges themselves. We examine the influence of these institutional differences before considering in Part 5 contextual factors which may shift constitutional decision-making such as war or national security concerns. Our aim is to discuss both how existing analysis has been undertaken and the limitations of such analysis. We end the paper by pointing to the need for more comparative work.

Keywords: judicial decision-making, votes, voting, attitudinal, strategic, judicial preferences

JEL Classification: K00, K1, K2, K3, K4, K40, K41