I appreciate Mark Graber's review of Judges and Their Audiences. The review is generous, but it is also perceptive about the book's argument and its implications. As the author, I learned from Graber's thoughtful discussion of what I did and did not do in the book.
Graber emphasizes something I did not do: give explicit attention to the normative implications of my depiction of judges. In his view, the normative issues in judging are considerably more important than the issues of explanation on which I focused. Whether or not that view is correct, it may be advisable for those of us who are less qualified to assess normative issues than scholars such as Graber to stick to explanation. Nonetheless, I would like to discuss briefly what I think is the primary normative issue raised by my book.
Legal realists and behavioral scholars strongly challenge the view that judges seek only to interpret the law correctly—that is, to make good law. This challenge, of course, has important normative implications. If judges act on their policy preferences and not just their reading of the law, that fact raises questions about the legitimacy of some roles they play in government and society.
In a sense, however, the belief that judges are committed to achieving good policy is as idealistic as the belief that they want only to make good law. In both conceptions, as developed by scholars, judges act without self-interest or emotion to advance their visions of the public good. The strategic judges who populate the most influential models of judicial behavior today expend great effort to achieve their policy goals, even though they gain no direct benefit by doing so. That depiction of judges may be comforting.
The reality of judicial behavior is more complicated. Judges are human beings, and self-interest and emotion do affect their choices. That is true even of the Supreme Court, despite institutional attributes that reduce the relevance of the justices' self-interest to their work. In my book, I argue that the universal interest in approval exerts a powerful impact on Supreme Court justices, as it does on other judges.
This nonidealistic depiction of judges might be disturbing. Yet recognition that judges have the same motivations as other people should combat a misunderstanding that has unfortunate effects. When we conceptualize judges as either law-oriented or policy-oriented, some people (including some judges) find it easy to conclude that a judge who is sufficiently virtuous and strong-minded will eschew policy considerations for the pursuit of good law. But if we recognize that judges pursue law, policy, or other goals on the basis of motives, such as the need to be liked and respected, we will also recognize that judges cannot simply will themselves to pursue only good law. As Graber suggests, we might think about how to channel judges' basic motivations in ways that foster the kind of judging we prefer. In any event, evaluation of judges' behavior will be most meaningful if it starts with a realistic conception of the bases for their choices.
