The Volokh Conspiracy

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Volokh Conspiracy

Younger Judges Appear More Sympathetic to Executive Power

Further evidence the prospect of promotion may influence judicial decision-making


A paper in the February 2020 Journal of Law & Economics by Tom Campbell and Nathaniel Wilcox, "Younger Federal District Court Judges Favor Presidential Power," finds that federal judges tend to be more supportive of executive power claims when they are younger, and that this may be a consequence that younger federal judges are influenced by the prospect of "promotion," i.e. potential nomination to a higher court.

Here is the abstract:

From 1960 to 2015, opinions of US federal district court judges (trial judges) in cases involving challenges to executive branch authority show that these judges favor executive authority less as they age. We suggest that district judges know that elevation to the federal circuit court of appeals becomes increasingly improbable, and hence have less reason to cooperate with the executive, with advancing age. Political variables, seniority of judges, and other variables introduced as extra regressors do not reverse this main result, nor does it appear to be the product of cohort effects or selection off the district court. When there are contemporaneous vacancies on their circuit courts, district judges in the 11 state circuits (but not the District of Columbia Circuit) are also more likely to favor the executive.

And here is some interesting discussion from the paper:

There is a possibility that all judges, regardless of their vintage, politics, or any other factor we consider here, experience some common cognitive change (between their mid-50s and mid-60s) that manifests as diminishing support for executive power. Oliver Wendell Holmes (Holmes 1899, p. 455) famously averred that "[j]udges commonly are elderly men, and are more likely to hate at sight any analysis to which they are not accustomed, and which disturbs repose of mind, than to fall in love with novelties." Assuming that Holmes's remark about elderly men is not simply a gratuitous insult, one may infer that he thought that age brings a rigid cast of mind, mired in precedents, traditions, and shopworn arguments. On the other hand, Sisk, Heise, and Morriss (1998, pp. 1486–87) believe their results show that "greater seniority tends to make a judge more worldly-wise (practical) and less taken with jurisprudential trends (nonoriginalist)"—very different from Holmes's view (if not quite opposite to it).

Whatever the true nature of any such change in cognition, a creative scholar may weave it into an explanation of our age effect. We appreciate that our main finding does not rule this out. However, we have a secondary finding, echoed by previous research (Cohen 19911992; Sisk, Heise, and Morriss 1998; Epstein, Landes, and Posner 2013), that district judges' decisions (opinions, sentences, and/or fines) react to promotion potential, in particular high-frequency arrivals and departures of various circuit court vacancies, in ways that seem to gratify executive preferences. We do not see how any plausible life-cycle theory of gradual changes in cognition can account for these reactions to a high-frequency phenomenon such as the arrival and departure of circuit court vacancies. To the previous research, we add our new finding: evidence that, as they grow older, an appreciable number of district judges behave as if they exit a tournament or contest for the prize of elevation—for the perfectly understandable reason that they are eventually too old to be seriously considered for the prize.

Other things equal, personal advancement should not motivate federal judges. It should not motivate elected officials either, but it is the judicial branch that the US founders especially strove to make independent with life tenure and guarantee against diminution of compensation. We find that the hope for personal advancement cannot be excluded as an explanation of how federal district judges decide cases particularly affecting the powers of the executive. That is a great sadness. If this is true, then, for an individual harmed by excessive reach of presidential power, the courts are not a completely reliable arbiter. The same is true for a member of Congress trying to vindicate legislative responsibility against executive encroachment. Not all grievances can be redressed by the political branches: only the courts can vindicate some rights, and it is distressing to have the scales biased. Further, bias, once practiced, is likely to be repeated, and bias, once accepted, is corrosive. A judge who will tip a decision in favor of her own advancement is a judge who will not decide on the merits in other contexts, and as that perception becomes widespread, the judicial branch loses its only real authority: the respect of the people in a democratic republic. . . .