The assignment to write a court's majority opinion is one of the major tools for shaping judicial and, consequently, public policy. Researchers at the University of Georgia, along with the University of North Carolina at Charlotte, recently examined factors that might influence such an assignment. Based on data from all 50 states, the study reveals that judges' race, gender and other status-based characteristics influence the majority opinion assignment in many state supreme courts.
"This shows how powerful race and gender status cues can be in our daily and workplace decisions, even among our policy elite judges that we assume know better because of their close association with the law and equal protection," said Robert Christensen, an assistant professor of public administration and policy with the UGA School of Public and International Affairs.
Christensen worked with fellow UGA professor Justin Stritch and UNC Charlotte professor John Szmer to examine the use of random-, rotation- and discretion-based administrative processes. The data used for the study were found in the State Supreme County Data Project, which collected decisions from all 50 state supreme courts from 1995-1998. The information also included biographical information for more than 400 justices.
The study discovered that black judges were systematically under assigned the writing of the majority opinion in states using random- and discretion-based assignment processes. Christensen, Szmer and Stritch found that black male judges were 4 percent less likely to be assigned the average case than white male judges in discretion-based states, and 2 percent less likely in states with random assignment. However, when random-based courts assigned high-profile cases, black male judges were 43 percent less likely than their white male colleagues to receive these assignments.
In general, white female judges received significantly fewer assignments in random-based states but disproportionately more assignments, 2.4 percent more than white male judges, in discretion-based states. However, the over-assignment disappeared when discretion-based courts assigned high-profile cases.
Significantly, Christensen and his co-authors did not find evidence of race or gender bias in state supreme courts using rotation-based assignments.
"This study shows that rules are not self-enforcing," Christensen said. "There needs to be monitoring if we expect rules to work well. The rotation of opinion assignment allowed just thateasy monitoring of a rule to assign opinion writing equally. The random assignment rule made it difficult to monitor who was really being bypassed."
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More information: The results from the study were published online May 23 and will appear in the print issue of Oxford Press's Journal of Public Administration Research and Theory. For the full journal article, see jpart.oxfordjournals.org/content/early/2012/05/22/jopart.mus020.full