The Facts Don’t Care About Your Honor’s Feelings

His honor assumes a fact not in evidence.

Ruth Marcus has an important op-ed which cites strong evidence that the party of the president who nominated federal judges helps one predict their opinions. I will fair use the important part.

“Now comes an intriguing study by a Harvard Law School professor that buttresses my point: If anything, it suggests we have underestimated the impact of party affiliation on judicial outcomes. Alma Cohen, whose training is as an economist, examined 630,000 federal appeals court cases from 1985 to 2020 and found that the impact of party affiliation went far beyond hot-button issues such as guns or abortion.

Rather, she wrote, “the political affiliations of panel judges can help predict outcomes in a broad set of cases that together represent over 90% of circuit court decisions. “


“Cohen’s hypothesis is that Democratic judges and Republican judges “systematically differ in their tendency to side with the seemingly weaker party.” For instance, in civil litigation between individuals and institutions, such as the corporations or the government, “panels with more Democratic judges are more likely than those with more Republican judges to reach a decision that favors the individual party.”

The same holds true for other types of cases. “In the categories of criminal appeals, immigration appeals, and prisoner litigation, increasing the number of Democrats on a circuit court panel raises the odds of an outcome favoring the weak party,” Cohen wrote. Overall, “switching from an all-Republican panel to an all-Democratic panel is associated with an increase of 55% in the baseline odds of a Pro-weak outcome.” In immigration cases, an all-Democratic panel was twice as likely to produce a finding for the immigrant as an all-Republican one during the 35-year period she studied.”

That is important research (which involved more work than I am willing to do — that is which involved work). Importantly, the empirical relationship does not correspond to alleged “judicial philosophies” such as respect for precedent, consideration of hypothetical original intent, textualism, or judicial restraint. Instead, it corresponds to the general ideology of Republicans Vs Democrats. Now I have to admit that judicial philosophy might be an omitted variable which would explain away a spurious association between support for the powerful and Republican judge’s decisions (it could be that Democratic judges favor the weak rather than follow the law and Republicans resist that temptation just as it could be that Democratic judges are lizard people).

To me the interesting thing is the quotation with which Marcus starts her op-ed. An un-named Reagan appointed judge wrote

“Why does the media insist on identifying the president who appointed the federal judges who make a newsworthy decision? It feeds the misimpression that our courts are just partisan policy arms of the party of the president behind their nomination. Competing judicial philosophies are the source of differences …” (if Marcus is honest (and I trust she is) her quote is a word for word copy of the complete e-mail as it contains no …s).

To me, the interesting thing is that judge presents no evidence and no hint of doubt. His e-mail is what (I think) lawyers call “conclusory”. I don’t want to be rude but he reminds me of Samuel Alito. I think that judges are used to having authority and think that they (unlike lawyers) are free to assume facts not in evidence.

In any case, it looks to me as if, in this case, data beat prejudice and social science might actually win one.