We like to think that in our form of government, political officials represent the citizens at large. Trouble is, it’s hard to know what “represent” means. Often, we talk about representation through two major lenses. “Descriptive” representation refers to whether people in government look like Americans generally (in terms of race, gender, maybe even age, occupation, class). “Substantive” representation refers to whether people in government make the sorts of decisions that Americans generally would make.
In a recent article, Bonneau and Rice take those two concepts into the world of judicial politics. Their basic question: Do black judges make different decisions than white judges? Bonneau and Rice provide a nice empirical answer to the question, but their interpretation of what their findings mean is confusing and less than persuasive.
Do black judges make different decisions than white ones?
Although there’s a large stack of existing articles asking the same question, previous work has produced mixed results. Bonneau and Rice argue persuasively that institutional context matters enough to resolve those mixed results in the literature. Specifically, they argue that discretion matters. Some judges have discretion over which cases they hear; others do not. This contrast is most apparent when looking at state supreme courts. Some states have a three-tiered court similar to the federal system, with trial courts, intermediate courts of appeal, and then a state supreme court. Other states omit the intermediate courts of appeal. In either system, criminal defendants always have a right to appeal. In the absence of an intermediate court of appeals, then, the state supreme court has no discretion over which cases it will hear; it must hear all appeals.
Bonneau and Rice “contend that descriptive representation is translated to substantive representation when the court has discretion over their docket and thus an intermediate court of appeal is present” (p 3887). Elsewhere, they state that “the link between descriptive and substantive representation relies on the expectation that minority and non-minority actors behave differently when faced with the same set of facts”–a curious statement that I discuss below, but one that I’ll accept for the time being. Putting it together, these two statements lead us to expect that race will have an effect (“minority and non-minority actors behave differently”) only when an intermediate court of appeal is present.
They test this argument by looking at the voting records of state supreme court judges, using a variety of appropriate controls (judge’s race, ideology, type of crime committed, etc). And what do they find? In states with an intermediate court of appeal, the judge’s race has no effect on voting; in states without an appeals court, race has a strong effect.
Wait–they find exactly the opposite pattern from what their theory implies. Didn’t they say that race should have an effect when there IS discretion (an intermediate court), not when there isn’t?
Perhaps I read too quickly, but nowhere did they acknowledge this curiosity or seek to explain it. We’re left, then, with an unexplained, unforeseen empirical finding. I know a fellow who likes to say, “The world is correlated at 0.3.” In other words, there are all sorts of correlations out there, but without a strong theoretical story explaining a particular correlation, we have no reason to suppose any particular finding is not random.
Bonneau and Rice are smart people, so I’m sure I missed something. But near as I can tell, the data did not support the theory.
Does substantive representation require that white and black judges vote differently?
Perhaps most curious about Bonneau and Rice’s article is this assertion, stated several times in different forms (including in the quotation given above):
“If there are no differences between white and African-American judges, then it also means that there is no substantive representation on the bench. After all, if African-American judges are deciding cases the same way as white judges, then neither group is representing the interests of minorities” (p 382).
Somebody help me understand why that needs to be true. Bonneau and Rice say nothing to back it up. Perhaps if black and white judges are deciding cases the same way, then BOTH groups are representing the interests of minorities. Must it be the case that only a “wise Latina” can make decisions about Latino defendants? Indeed, in their conclusion, Bonneau and Rice give evidence that would seem to indicate that both groups are reasonably fair to everybody:
“The vast majority of judges … are distinguished jurists with years of experience in the judicial system. These judges are also socialized the same way (both in law school and in the legal profession). This homogeneity in socialization and experience–largely unique to the judiciary–may serve to mitigate any racial differences that exist.”
I’m not trying to make an argument either way about whether the legal system is biased against minority defendants. I’m only saying that Bonneau and Rice could do more to back up their claim.
The data and arguments are interesting, but I’m a bit confused by these two general issues.
- The authors find exactly the opposite of what their theory predicts. I would have liked to see them explain this.
- The authors could do more to justify one of their major theoretical assumptions: That substantive representation requires black and white judges to behave differently.