Judicial Reputation: A Comparative Theory
Nuno Garoupa and Tom Ginsburg. Chicago, 2015. 273 pages.
"The way to gain a good reputation is to endeavor to be what you desire to appear." Socrates1
"I don’t give a damn ‘bout my bad reputation." Joan Jett2
As we write this review, the United States is gripped by one of the most contentious and outlandish presidential elections in recent memory.3 Justice Antonin Scalia, one of the most conservative justices in the history of the modern Supreme Court, died in the midst of this political whirlwind,4 and the nomination process for his successor has been sucked into the vortex. President Barack Obama expressed frustration with Senate Republicans, who hold a majority and have promised not to allow a vote, hold hearings, or even meet the candidate: “At that point, the judiciary becomes a pure extension of politics. And that damages people’s faith in the judiciary.”5 By implication, the public’s view of courts matters.
Law professors Nuno Garoupa and Tom Ginsburg have published an ambitious book that seeks to account for the great diversity of judicial systems based, in part, on the public’s opinion of courts. The structural features of courts, such as whether the judges are permitted to (and do) publish dissents, Garoupa and Ginsburg explain, can have a significant impact on the public’s opinion of courts. Drawing on their own prodigious writings, the authors propose a reputation theory “to explain how judges respond to the incentives provided by different audiences and how legal systems design their judicial institutions to calibrate the locally appropriate balance between audiences” (p 7).6 Judges care about their reputations. And reputation serves as both cause and effect of the design of courts.
Judicial reputation in Garoupa and Ginsburg’s book operates on many levels. A judge has a reputation, but so too does a court (p 19). Reputation in their theory captures not only the public’s view of the judiciary (as a single court or as separate judges), but also judges’ opinions of each other (p 23). Finally, reputation has a coherent meaning that transcends state boundaries and cultures and operates across time.7 Judicial reputation is challenging to define and even more difficult to measure. But this is the task that the authors set for themselves.
We begin this Review by offering a description of the book. A responsible book reviewer should, at a minimum, give the reader a good feel for the authors’ project. Part I is not a substitute for reading this fine book, but hopefully will facilitate a deeper reading of the book. We then move in Part II to our evaluation. We find much to like in this book. But we also have questions about the ability of the theory to hang together in a unified manner and to do the work assigned to it. Part III considers what motivates judges. Part IV suggests an alternative account.
- 1. Edward Parsons Day, Day’s Collacon: An Encyclopædia of Prose Quotations 789 (International Printing and Publication Office 1884) (attributing this quotation to Socrates). Professors Nuno Garoupa and Tom Ginsburg begin their book with two quotes which preview their thinking about reputation: Benjamin Franklin’s line that “[i]t takes many good deeds to build a good reputation, and only one bad one to lose it,” and Michael Iapoce’s less well-known observation that “[r]eputation is character minus what you’ve been caught doing” (p vii). Hopefully our quotes offer a similar insight to our modest project here.
- 2. Joan Jett, Bad Reputation (Boardwalk Records 1981), lyrics available at http://perma.cc/L22C-B6PU.
- 3. See Patrick Healy and Maggie Haberman, Donald Trump and Hillary Clinton Win Easily in New York Primary (NY Times, Apr 19, 2016), online at http://www.nytimes.com/2016/04/20/us/politics/new-york-primary.html (visited May 6, 2016) (Perma archive unavailable).
- 4. See Wilson Andrews, Jeremy Bowers, and K.K. Rebecca Lai, How Scalia Compared with Other Justices (NY Times, Feb 14, 2016), online at http://www.nytimes.com/interactive/2016/02/14/us/supreme-court-justice-ideology-scalia.html (visited Apr 29, 2016) (Perma archive unavailable) (showing, based on work by Professors Lee Epstein, Andrew D. Martin, and Kevin Quinn, that Scalia was the second most conservative justice during nearly all of his tenure and holds roughly the same spot—second or third—among all justices who have served since 1937).
- 5. Transcript and Video: President Obama’s Interview with NPR’s Nina Totenberg (NPR, Mar 18, 2016), online at http://www.npr.org/2016/03/18/470869897/transcript-and-video-president-obamas-interview-with-nprs-nina-totenberg (visited Apr 29, 2016) (Perma archive unavailable).
- 6. Prior scholars have also emphasized the importance of understanding judicial behavior as a function of the different audiences judges are seeking to speak to, albeit not in the context of a reputational theory drawn as sharply as that of Garoupa and Ginsburg. See generally, for example, Lawrence Baum, Judges and Their Audiences: A Perspective on Judicial Behavior (Princeton 2006) (arguing that judicial behavior can be examined by exploring judicial relationships with various audiences, including fellow judges and the general public, but also including the social groups with which judges identify); Thomas J. Miceli and Metin M. Coşgel, Reputation and Judicial Decision-Making, 23 J Econ Behav & Org 31 (1994) (offering a model of judicial decisionmaking that includes a judge’s reputation as a factor).
- 7. Finding coherent meaning in any comparative scholarship poses many problems, including very basic ones: What is a “court” and who is a “judge” for purposes of drawing comparisons?