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75 U. Chi. L. Rev. 853 (2008)
Does Political Bias in the Judiciary Matter: Implications of Judicial Bias Studies for Legal and Constitutional Reform

handle is hein.journals/uclr75 and id is 857 raw text is: Does Political Bias in the Judiciary Matter?: Implications of Judicial Bias Studies for Legal and Constitutional Reform Eric A. Posnert INTRODUCTION This issue attests to the increasing significance of the empirical study of judges and judicial decisions. The two new empirical articles' are just the latest in a cataract of studies that show that the political biases of judges, and other legally irrelevant characteristics of judges (such as race and sex), influence the voting patterns of judges and the outcomes of cases.2 Thomas Miles and Cass Sunstein are right that this t Kirkland and Ellis Professor of Law, The University of Chicago. Thanks to Jake Gersen, Todd Henderson, Daryl Levinson, Jens Ludwig, Richard McAdams, Tom Miles, Matthew Ste- phenson, David Strauss, Adrian Vermeule, Noah Zatz, and participants at a workshop at The University of Chicago Law School for helpful comments. 1 Thomas J. Miles and Cass R. Sunstein, The Real World of Arbitrariness Review, 75 U Chi L Rev 761 (2008) (presenting empirical data suggesting that judges' political preferences influ- ence their review of agency decisions); Max M. Schanzenbach and Emerson H. Tiller, Reviewing the Sentencing Guidelines: Judicial Politics, Empirical Evidence, and Reform, 75 U Chi L Rev 715 (2008) (providing evidence that political ideology matters in criminal sentencing). 2 In the political science literature, see generally Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge 2002). In the legal literature, see generally Stephen J. Choi and G. Mitu Gulati, Bias in Judicial Citations: A New Window into the Behavior of Judges?, 37 J Legal Stud (forthcoming 2009) (showing that judges base decisions to cite judges outside of their circuit in part on the political party of the cited judge, that they are more likely to engage in biased citation practices in certain high stakes situations, and that they demonstrate reciprocity in citation); Adam B. Cox and Thomas J. Miles, Judging the Voting Rights Act, 108 Colum L Rev 1 (2008) (providing evidence and concluding that judicial ideology and race are closely related to findings of liability in voting rights cases); Cass R. Sunstein, et al, Are Judges Political? An Empirical Analysis of the Federal Judiciary (Brookings 2006) (identifying, based on three-judge panel decisions, four distinct phenomena: significant splits between Repub- lican and Democratic appointees on ideological issues, hesitance to dissent publicly notwith- standing a possible disposition to do so, group polarization, and a whistleblower effect among judges); Frank B. Cross, Decisionmaking in the U.S. Circuit Courts of Appeals, 91 Cal L Rev 1457 (2003) (finding that legal and political factors influence judicial decisions, with legal factors having the greatest impact); Frank B. Cross and Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals, 107 Yale L J 2155 (1998) (concluding that judges defer to agencies along political lines, but that the presence of a whistleblower-an appointee of the opposite political party-mitigates partisan effects); Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va L Rev 1717 (1997) (finding significant influence of ideology on voting, a higher prevalence of ideological voting in situations where Supreme Court review is unlikely, and a high degree of sensitivity among judges to the composition of the panels on which they sit). 853

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