The Effects of Cognitive Aging on Judicial Behavior

• In Event: Writers on the Norm

Abstract

How does cognitive aging alter the behavior of federal judges and the content of their opinions? Research in neuroscience and cognitive psychology tells us that human aging leads to reduced cognitive efficiency. Executive functioning, reasoning skills, and processing speed all decline with age. Meanwhile, today's federal judges are older than ever--and continue to age. What are the consequences of cognitive aging on federal judges? Does the quality of their opinions decline with age?

There is reason to believe the quality of judges' opinions may decline over time. Judges reason by analogy, a process that demands effective executive functioning. Judges on the circuit courts must understand not only their own circuit precedents but also Supreme Court precedent. Appellate judges must read thousands of pages, understand the material, and apply the principles they learned. They must read and understand precedent, and reason through how cases before them interact with existing law. And they must do so in hundreds of cases from diverse issue areas each year. But reasoning abilities and executive functioning decline with age. We thus expect that a judge's opinion quality will decrease as the judge ages.

We will apply cognitive neuroscience theory to judging, and gather novel longitudinal and cross-sectional data to examine the effects of cognitive aging on opinion writing on the U.S. Courts of Appeals. We will build and employ a longitudinal dataset of opinions written by every judge appointed to the U.S. Courts of Appeals after 1974. Using those new data, we will analyze the effects of cognitive aging on the quality of judges' opinions.

Because no direct measure of opinion quality presently exists, we draw on a number of recent empirical strategies to assess the observable manifestations of opinion quality. First, we will follow the framework developed by Hinkle (2015) in her innovative study of legal constraint on the courts of appeals. This approach looks to whether a contemporary circuit court opinion cites a previous circuit court opinion in a specific issue area (for Hinkle, search and seizure). To identify legally relevant precedents, Hinkle uses a cosine similarity score that measures the degree to which the contemporary decision and the precedential decision are similar. Like Hinkle, we will assess citation to a judge's opinions. We will examine citations in cases where the judge's opinion was binding within a circuit as well as out-of-circuit citations when the precedent is merely persuasive and therefore not required to be cited (all while accounting for circuits' citing practices at all times). Beyond simple citation counts, we also will use Shepard's Citations (via LexisNexis), KeyCite (via Westlaw), and BCite (via Bloomberg Law) to examine how other courts cite opinions written by aging judges. Our controls for legal relevance will come from similarity scores analogous to Hinkle's. We will calculate them using the opinion texts as well as issue-specific control variables we will measure using subject classifications from legal databases like LexisNexis and Westlaw. Second, we will follow the approach of Moyer et al. (2021) and collapse our unit of analysis from the precedent-contemporary opinion dyad to each opinion under analysis. Following Moyer and colleagues, we will examine opinion length, the number of authorities cited, and the number of “deep cites."

Taken together, our research findings will answer weighty normative questions about judicial independence, judicial accountability, and proposed reforms to the federal judiciary. The project's theoretical emphasis and empirical findings will offer novel contributions to the literature on judicial decision making, especially within in the United States. What is more, this study will present findings that address critical normative questions regarding institutional design in American government. For instance, is it still prudent to continue life tenure for federal judges in an era of dramatically expanded life expectancy but cognitive decline? Our project is timely, as it engages with recent political debates surrounding judicial reforms like term limits and mandatory retirement ages. Similarly, the results of this project may inform decisions by U.S. Congress regarding its statutory decisions over retirement incentives and the decision-making resources it allocates to the judiciary, such as clerk support and the number of authorized judgeships.

Authors

• Ryan C. Black, Michigan State University

• Ryan J. Owens, University of Wisconsin, Madison

• Patrick C. Wohlfarth, University of Maryland, College Park