Vol. 30 No. 10 (November 2020) pp. 154 - 157THE CONSCIENTIOUS JUSTICE: HOW SUPREME COURT JUSTICES’ PERSONALITIES INFLUENCE THE LAW, THE HIGH COURT, AND THE CONSTITUTION, by Ryan C. Black, Ryan J. Owens, Justin Wedeking and Patrick C. Wohlfarth. New York: Cambridge University Press, 2020. 350 pp. Hardback $110.00. ISBN: 9781107168718.
Reviewed by Robert M. Howard, Department of Political Science, Georgia State University. Email: rhoward@gsu.edu.
Almost a quarter century ago, Lawrence Baum wrote a seminal book entitled THE PUZZLE OF JUDICIAL BEHAVIOR (Baum 1997). Baum’s premise was that scholars had made only limited development in understanding judicial behavior. Baum tried to determine what existing scholarship had and had not done before concluding that although much progress has been made, the puzzle of judicial behavior ultimately remains and will continue to remain unsolved despite significant scholarly progress.
While the puzzle still remains, law and courts scholars have made significant advances in our understanding over the ensuing years. Many scholars have demonstrated the importance of law and legal concepts, interest groups, strategic bargaining, opinion writing, negotiation, and personal interactions.
This book is a wonderful example of that progress. The authors add to the above emerging list by examining the influence of personality on Supreme Court decision making. It seems so obvious that personality traits would influence the Supreme Court that it also seems strange that there has been so little study of personality and judicial behavior. Gibson’s (1981) early analysis on self-esteem and trial court judges was 40 years ago, and despite its importance, there has been relatively little follow up since the early 1980’s with the few notable exceptions detailed by the authors in the early chapters. It is this gap that Black, Owens, Wedeking, and Wohlfarth so admirably fill with their book THE CONSCIENTIOUS JUSTICE: HOW SUPREME COURT JUSTICES’ PERSONALITIES INFLUENCE THE LAW, THE HIGH COURT, AND THE CONSTITUTION. Throughout their book the authors show how personality is an important factor in the behavior of a Supreme Court justice from agenda setting to opinion writing.
Chapters 1 and 2 lay out the framework and theory of the book. The authors introduce the reader to scholarship on the personality traits of conscientiousness, agreeableness, neuroticism, openness, and extraversion. The book focuses on conscientiousness, defined as “a spectrum of constructs that describe individual differences in the propensity to be self-controlled, responsible to others, hardworking, orderly, and rule abiding” (p. 22). Conscientious people are careful, rule following, and well organized. In contrast, non-conscientious individuals are impulsive and seek immediate gratification. As the authors show in their theory chapter, conscientiousness is an important trait to examine because it comes close to our ideal of judicial temperament and we should see differences in behavior between conscientious judges and non-conscientious judges. [*155]
Chapter 3 introduces the reader to the measurement of conscientiousness, the conscientiousness ranking of the justices from Hugo Black (appointed in 1937) through Elena Kagan (appointed in 2010), and various tests of the validity of the measure. The authors identified and collected written material by and of the justices and then used IBM’s insights program to develop the measure . The actual conscientiousness rankings of the judges should be of significant interest to readers, both scholarly and public audiences. For example, Earl Warren tops the list as most conscientious justice, followed by Thurgood Marshall, Lewis Powell, James Byrnes, and Anthony Kennedy. Others high on the scale include Sherman Milton, Stanley Reed, and Byron White. Those in the middle include Ruth Bader Ginsburg, Robert Jackson, William Brennan, and Charles Whittaker. At the very bottom is William Douglas, with Abe Fortas, and Fred Vinson right above him. As the authors note, this list is not intuitively obvious, but they compile impressive evidence justifying these scores and the ranking. A welcome appendix is attached to this chapter providing details justifying measurement validity.
The rest of the chapters demonstrate the influence of conscientiousness on the behavior of the justices through all the various aspects of Supreme Court behavior and action. Chapter 4, for example, examines agenda setting. The authors show how a conscientious justice is more likely to accept cert, but less likely to vote to be part of a join-3, or tentative vote to grant.
Chapters 5 and 6 examine what might be called legal factors and legal actors. Chapter 5 examines the concept and influence of legal persuasion, in particular, legal briefs and oral argument, on conscientious justices, while Chapter 6 looks at the influence of the Solicitor General. For the briefs, the authors examine the emotional content of the briefs and find evidence that it has a negative impact on the most conscientious justices, but little impact on the non-conscientious justices. They report similar findings for oral argument – little effect on the non-conscientious justice, but a conscientious judge can be influenced by a persuasive oral argument. Chapter 6 shows that, all else being equal, the conscientious judge is more likely to support the position of the Solicitor General.
Chapters 7, 8 and 9 focus on the opinion assignment, content, and bargaining. Chief Justices in the majority get to assign the opinions and they do so for a variety of institutional and ideological reasons. One would expect the Chief Justice to rely on conscientious judges for institutionally important cases, and the evidence confirms that the Chief Justices assigns more opinions to conscientious justices in legally salient cases, but does not assign more policy or politically oriented cases to these conscientious justices.
Once an opinion is assigned, the next step is bargaining within the majority coalition over the content of the opinion. Here the authors find that conscientious justices do try to take colleagues’ views into their opinions. Lastly, the justices move on to the actual content of the opinion. In Chapter 9, the authors show that conscientious judges write more complex, broader, longer and clearer opinions than non-conscientious judges.
Chapter 10 revisits the law and looks at conscientiousness and precedent, while Chapter 11 examines conscientiousness and public opinion, and the final substantive chapter considers recusals. Not unexpectedly, the authors find that a [*156] conscientious judge is less likely to alter precedent, or if they do so, will alter the precedent in an incremental fashion rather than overturn the existing precedent. Chapter 11 finds that conscientious justices are the most attuned to public opinion and more majoritarian in their voting as compared to the other justices.
Finally, the last substantive chapter examines recusals. There is no legal obligation for Supreme Court justices to recuse themselves from any particular case. It is left entirely to the justice’s own personal sense of ethics and propriety. In fact, some research has shown that justices are less likely to recuse themselves in very close, politically and ideologically salient cases. The authors demonstrate that conscientious justices, at least initially, are much more likely to recuse themselves than non-conscientious justices.
Of course, all of this scholarship, including the research in this book, has not pushed the dominant paradigm of ideology off of its perch. Conscientiousness does influence voting and overall behavior, but for many of the chapters, that influence is significantly less than the influence of ideology. Substantively, one standard deviation, and often a swing from the minimum to the maximum, does not result in huge behavioral shifts compared to ideological preferences. To be fair, the authors make no such claim. Adding to our knowledge of judicial behavior is more than sufficient justification.
However, there is something of a “so what?” factor here. Ideology matters a lot to understanding judicial and public behavior. The confirmation fights are all about the perceived ideology of the nominee and what that will mean for judicial rulings. There is no such divide over conscientiousness.
Then, what does it mean to say a judge is conscientious? The rankings seem independent of any ranking of the impact or greatness of the judge. Few scholars think Minton or Byrnes were good justices. Conversely, Scalia and Kagan are often thought very highly of in the legal and scholarly communities, and both rank in the middle or bottom of conscientiousness. Warren and Marshall were very liberal and are at the top of the list, but so were Douglas and Fortas, and they are at or near the bottom. So, what does it tell us to say a judge is conscientious and engages in “good” judging? I am not sure. While conscientiousness is a desirable trait, perhaps an overly conscientious justice is not capable of the imaginative leaps that lead to shifts in our thinking about law and its relationship to public and social policy. It would be fascinating to try and examine the conscientiousness of the acclaimed judicial greats in American legal history, for example, Chief Justice John Marshall, Oliver Wendell Holmes, Benjamin Cardozo, and Louis Brandeis.
Of course, that is speculation, and this is not meant to detract from the book. THE CONSCIENTIOUS JUSTICE is scholarship at its finest. It is well worth a read and would be a welcome addition to graduate classes in judicial process. The book is a primer on the intersection of personality and judicial behavior and also works well as a refresher on Supreme Court processes and procedures. Judicial politics scholars, graduate students, and those in the general public wanting to know more about the court and its decision processes will enjoy reading this book. [*157]
REFERENCES:
Baum, Lawrence. 1997. THE PUZZLE OF JUDICIAL BEHAVIOR. Ann Arbor: University of Michigan Press.
Gibson, James L. 1981. “Personality and Elite Political Behavior: The Influence of Self Esteem on Judicial Decision Making.” JOURNAL OF POLITICS 43(1): 104 -125.
© Copyright 2020 by the author, Robert M. Howard.
