The Intergroup Foundations of Policy Influence

Abstract

Most decisions about policy adoption require preference aggregation, which makes it difficult to determine how and when an individual can influence policy change. Examining how frequently a judge is cited offers insight into this question. Drawing upon the psychological concept of social identity, we suggest that shared group memberships can account for differences in policy influence. We investigate this possibility using the demographic and professional group memberships of federal circuit court judges and an original dataset of citations among all published search and seizure cases from federal circuit courts from 1990 to 2010. The results indicate that shared professional characteristics do tend to lead to ingroup favoritism in citation decisions while only partial evidence of such a pattern emerges for demographic group memberships. There is evidence of ingroup favoritism among female and minority judges but none for male or white judges. Overall, judges appear to generally have greater influence on judges with shared characteristics. The findings have vital implications for our understanding of the diversification of policy-making institutions.

Who Shapes the Law? Gender and Racial Bias in Judicial Citations

“…We exclude citations to unsigned opinions, en banc cases, certification decisions, and opinions by district court judges, resulting in 2,228 observations 5 . Our approach differs from other studies on citation (e.g., Hinkle and Nelson 2018) in several respects. Notwithstanding the value of studying citation patterns in a single-issue area, we focus on discretionary citations across all issue areas to identify broad trends in policy influence across the federal appellate courts.…”

“…Stereotypes about competence have a reinforcing quality; that is, observing others' signals about which judges have more authority and prestige solidifies the connection between status and social categories as law clerks are socialized into their work (Johnson, Dowd, and Ridgeway 2006). Moreover, algorithms used by legal databases such as Westlaw may exacerbate human biases by promoting opinions that have already been cited in search results (Hinkle and Nelson 2018), reinforcing a link between perceived status and citations.…”

“…Choi and Gulati (2008) examine bias in out-of-circuit citations, but only for one year during a period when the federal judiciary was insufficiently diverse to assess racial bias (see also Landes, Lessig, and Solimine 1998). 1 More recently, a comprehensive study of binding and nonbinding precedent on search-and-seizure cases failed to find evidence of out-group bias in white judges’ citation patterns, but did reveal small in-group effects for racial minority and female judges (Hinkle and Nelson 2018). Shared social bonds, as well as educational and professional backgrounds, have also been linked to mutual citation patterns (Choi and Gulati 2008; Hinkle and Nelson 2018).…”

“…1 More recently, a comprehensive study of binding and nonbinding precedent on search-and-seizure cases failed to find evidence of out-group bias in white judges’ citation patterns, but did reveal small in-group effects for racial minority and female judges (Hinkle and Nelson 2018). Shared social bonds, as well as educational and professional backgrounds, have also been linked to mutual citation patterns (Choi and Gulati 2008; Hinkle and Nelson 2018). 2…”

Trading Liberties for Security: Groupthink, Gender, and 9/11 Effects on U.S. Appellate Decision-Making

“…Scant scholarship has examined the propensity of judicial deliberations to exhibit groupthink and conformity pressures (though see Breger, 2010; Kastellec, 2013) despite acknowledging decision-making in appellate courts as a collective exercise rather than isolated individual events (Murphy, 1966; Schubert, 1964; Ulmer, 1971). 1 Yet, appellate judges may be predisposed to experience conformity pressures and groupthink as they have a common frame of reference and legal training (with all of its associated norms), share the same (role) identity, behave interdependently to render decisions collectively, develop personal affects, share a common goal, regularly interact, and often come from similar socioeconomic classes and regions (Hinkle & Nelson, 2018). Furthermore, unanimity is often a judicial goal itself as it enhances the legitimacy of courts by reinforcing the perception that decisions are based on objective legal reasoning and enhances the predictability of future decisions (Bowie, Songer, & Szmer, 2014).…”