Is Prejudice Popular? Judicial Selection and Racial Bias in the Legal Language

• In Event: Judicial Selection and Appointments

Abstract

In recent years, scholars have sought to understand how different methods of selecting judges – whether by appointment, (partisan or non-partisan) election, merit selection, and variants thereof - influence their behavior on the bench. The conventional wisdom is that methods of selection that expose judges to public opinion to a greater degree incentivize judges to seek public approval in order to maintain their positions. Thus, methods of selection that involve the public to a greater degree should make judges more likely to make “popular”, as opposed to objective , legal decisions.

While the scholarly literature has yet to reach a consensus concerning the impact of methods of judicial selection on judicial behavior, it is important to note that the large majority of these studies focus on examining the link between selection system type and judicial outcomes such as decisions or sentences in criminal cases. This reflects the reality that such discrete outcomes are readily amenable to classification and analysis with quantitative techniques.

However, the method of judicial selection may also influence the language of the law itself, an area that recent work has begun to explore. In this paper, we investigate whether methods of judicial selection that expose judges to public opinion to a greater degree, such as elections, lead judges to express greater racial bias in the texts of their judicial opinions. In exploring this question, we build on the recent work of Rice, Rhodes, and Nteta (2018), who demonstrate the existence of serious racial biases in the texts of judicial opinions at multiple levels of government and across periods of time. Drawing on the full texts of over 400,000 opinions from state courts of last resort, and leveraging both cross-sectional and over-time variation in the mode of judicial selection, we assess whether mode of selection is systematically associated with variation in the severity of racial bias in the language of judicial opinions.

Authors

• Doug Rice, University of Massachusetts

• Jesse H. Rhodes, University of Massachusetts, Amherst

• Tatishe Mavovosi Nteta, University of Massachusetts, Amherst

• Justin H. Gross, University of Massachusetts, Amherst