Gavel Grab

Who's Number 1?

Rankings raise eyebrows.  They start debates.  Ask any college football fan or movie buff.  But can courts be ranked?

Three legal scholars say yes, in a new Olin Law & Economics working paper from the University of Chicago.  Professors Stephen Choi, Mitu Gulati and Eric Posner review past academic efforts, which frequently concentrate on how often state courts are cited in other states. 

In their own effort—“Which States Have the Best (and Worst) High Courts?”—they take a stab at measuring judicial independence.  They focus on how much partisan preference affects decisions, assigning higher scores to judges who cross party lines when voting on cases.  They admit the limitations of this approach, but argue that “a judge who votes against partisan affiliation is most likely to be more independent.”  (Their composite rankings also seek to measure judicial productivity and quality of opinions.)

The authors note that in the U.S. Chamber of Commerce’s surveys—which canvass attorneys at big corporations—certain states do worse:  states with Democratic legislatures and  fewer common law cases, states where populations are larger, younger, poorer and more liberal, and states with larger African-American populations.  (A separate study notes that states with judicial elections garner the lowest Chamber of Commerce ratings.)

“Rankings make people uneasy,” admit the professors.  In an era when any movie can claim a thumbs-up from someone, and where partisans cherry-pick the scantest data to fit their case, that’s an understatement.   Already the University of Chicago study has been cited in connection with an effort to cut the size of the Michigan’s Supreme Court.  Being labeled a “judicial hellhole” is often a signal that a big money court campaign lurks just over the horizon.

Justice itself is famously abstract.  Subjecting it to numerical measurement raises many good questions—including many more than statistics can answer. 

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