“Our short answer is that Trump judges continue to dominate the Biden judges,” write professors Stephen Choi and Mitu Gulati in a new preliminary draft article posted yesterday. As a provocative tagline, it accomplished its task, getting pulled into social media posts viewed by tens of thousands. It’s also fitting that the piece got boiled down to its most bold, yet ultimately vapid claim, since their methodology for determining peak judicial performance rewards judges for being wrong both often and loudly.
This paper follows an earlier work comparing Trump’s first-term judges to Bush and Obama judges based on “productivity, quality and independence,” and concluding that Trump’s nominees “performed as well, if not better.” But every attention-seeking spectacle invites its own sequel to up to the stakes. With the benefit of a few more years of Biden judges, the authors returned to the subject with a more audacious pull quote. Instead of “as well, if not better,” this time the Trump judges “dominate” Biden’s.
It’s a Jordan vs. LeBron level argument elevated to academia. The authors admit the paper is intended merely to “get a conversation going about judicial performance based on objective data as opposed to more subjective assertions about judicial quality,” a display of modesty violently at odds with the decision to use a word like “dominate.” But sometimes you’ve got to channel your inner Stephen A. Smith to get traction.
To measure productivity, we start with the total number of reported opinions by a judge: the sum of majority, concurring, and dissenting opinions.
Judges aren’t paid by the word. The only opinion that needs to be written is the majority opinion. Dissents — and definitely concurrences — are gratuitous. “Writing a dissent or concurrence is voluntary and takes extra effort,” the authors note, mistaking “effort” with “productive effort.” Unnecessary work isn’t a measure of “productivity,” it’s a measure of a busybody.
If we measured productivity as a matter of accomplishing the job itself faster and more efficiently, judges churning out separate concurrences and dissents likely slow down the process of clearing the docket, both by (a) wasting limited time and resources producing opinions that don’t matter instead of their assigned majority opinions, and (b) by forcing the majority to waste time and resources rebutting those separate opinions that could be used on another matter. That’s not to suggest dissents and concurrences are a universal wastes of time, but suggesting that judges are more “productive” simply by writing more opinions is like rewarding the player who took the most shots even if every one missed.
Unlike trial judges working alone, there’s not an obvious, public-facing metric for appellate productivity. Figuring out which chambers drags down every matter requires inside gossip that scholarly studies will never sufficiently collect. There are some retired judges out there who could probably tell us all exactly which circuit judges are “productive,” but they’re not talking.
It’s not hard to grasp why Trump judges excel under a measure of pure volume, consequence to the actual decision be damned. The Federalist Society (note that FedSoc will say it’s just a humble academic club and that it’s a coincidence that the organized Trump legal operation and its own members form a perfect circle of a Venn Diagram) put a lot of effort into avoiding another Justice David Souter. The vetting operation is detailed and runs on a written record. A careerist Trump judge has every incentive to write a separate opinion on everything to keep their tenure portfolio padded in case the Supreme Court opens up. Democrats don’t pick judges this way and Bush judges are now too old to get called up to the majors.
Our measure of judicial influence focuses on the number of outside circuit case citations a judge’s authored majority opinion receives.
Behold the self-licking ice cream cone of conservative validation. Some opinions receive cross-circuit nods because they’re cases of first impression or examples of sterling reasoning, but a lot of them show up because “I’m citing my buddy’s opinion because we’re both trying to overrule the Clean Air Act.”
In fact, the paper notes that the top authors for outside citations both wrote gun rights opinions — the overall most outside cited opinion being Rahimi — and that “[p]erhaps it’s not the judge per se but instead the random chance of getting assigned to write an opinion on such a hot-button topic that drives the large outside circuit citations.” The authors are on to something here, but don’t go far enough. Circuits don’t need to look beyond their borders to resolve uncontroversial issues. That’s where circuit splits happen, and panels will flag those cases when adding their voices to one side or the other of that split.
And, not to get too philosophical, but a “hot-button topic” can be self-fulfilling. When one circuit — let’s just pick a number at random… say, the Fifth — decides to turn itself into a constitutional hot take generator, it manufactures controversy. Rahimi got a lot of attention because it was so uniquely batshit that even this Supreme Court couldn’t get on board.
The model for an influential judge, per the statistical method employed by the authors, would be Judge Posner’s 1998-2000 run. During that period, Judge Posner was “2.6 standard deviations above the mean active judge” by this measure. But while I’ll subjectively say Judge Posner’s “judicial performance” was several more standards of deviation better than any of the Trump appellate cohort, this influence measure isn’t a good basis for that.
Because this measure rewards controversy, higher “influence” will always benefit judges challenging orthodoxy. Judge Posner championed viewing the law through a then-novel economic lens. The Trump judges in this study champion viewing the law through a presently novel “whatever Trump wants” lens. In both cases, they’re getting cited more for bucking the system. This measure of influence captures judges writing from outside the established legal norms. But it’s a value neutral measure because it doesn’t matter if they’re producing law and economics or batshit.
If anything, all we’ve learned here is that Biden judges are NOT producing opinions hoping to advance new critical race theory readings of ERISA, but are mostly straightforward practitioners guided by orthodox interpretations of established precedent.
Again, we don’t actually want judges to be influential for the sake of being influential — we want them to quickly and correctly decide cases. Biden judges tend to be in line with existing precedent? Cool story, but it doesn’t say anything about their performance.
The paper’s definition of independence is complicated and derived through multiple equations, but at the end of the day… who cares? If they’re standing up to injustice, that’s great. If they’re obstinately bloviating against established law for their own ego, that’s not. There’s no objective measure capable of capturing that distinction.
In the end, the measure we get from the paper is the same productivity problem — rewarding dissents and concurrences — compounded because it gives extra weight to dissents and concurrences that go “against” other Republican judges. So a judge wanting to force in their own “me too” concurrence to stay on Leonard Leo’s nice list gets an independence boost for what’s basically the judicial equivalent of “I have more of a comment than a question.”
Which, again, says nothing about whether or not the judge is doing a good job as a judge. The data collected in the paper is interesting. There are reasons why it might be interesting to know who is writing more and who is getting cited more. But neither has more than a passing connection to “judicial performance.” Someone once told me that the best way to evaluate a methodology is to forget the ideal case that it could measure and instead consider what it would look like to game it. Applying that advice, what would a judge do if they wanted to be crowned a high judicial performer by this test? Write separately in every case and make sure every majority opinion is tailored toward circuit conflict.
This study is what happens when you apply quantitative metrics to qualitative judgments without thinking about what you’re actually measuring. For example, the authors said they intended to “get a conversation going” and quantitatively they have succeeded in creating one. Qualitatively, they have created a stupid one.
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