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A new Northwestern University School of Law study employs techniques from political science and economics to confirm court watchers' long-held claims about a hot-button topic.

The study concludes that political ideologies do indeed shape judges' sentencing decisions—despite federal sentencing guidelines to avoid such bias and inconsistency.

In other words, judges who were Democrat appointees gave lower sentences than their Republican-appointed counterparts for violent crime and drug offenses.

Making the research particularly timely, the U.S. Supreme Court recently ruled that the mandatory application of sentencing guidelines was unconstitutional.

The research by Emerson Tiller, Stanford Clinton Sr. Research Professor of Law, and Max Schanzenbach, assistant professor, at Northwestern Law, will be published in a forthcoming issue of the "Journal of Law, Economics & Organization," one of the most prominent peer-reviewed journals in law.

The paper is titled "Strategic Judging Under the United States Sentencing Guidelines: Positive Political Theory and Evidence."

Most interesting to Tiller, whose research methodically untangles the ideological tendencies that get subtly hidden in the multiple layers of the judicial process, was lower court judges' willingness to not only manipulate facts, but also to make new legal conclusions that bypass the sentencing guidelines, which is much trickier business.

Tiller's work generally unravels the complex manner in which judges use the structures of law to make decisions that match their political ideologies and survive review by higher courts with different viewpoints.

"In a nutshell, Schanzenbach and I found that judges can manipulate their interpretation of facts during sentencing hearings to easily lengthen or shorten sentences," Tiller says. "Lower court judges must get their hands into the facts of a case in a way a higher court cannot or will not, and they have a lot of discretion in weighing evidentiary facts. Lower courts, for example, may give more credibility to a witness or a piece of evidence to achieve their desired outcomes."

In most cases, lower courts do not make new conclusions about what the law is, a privilege largely confined to higher courts.

"Lower courts know that any new interpretation of law will be scrutinized by a higher court and be at high risk of reversal if the statement of law is inconsistent with the political ideological preferences of the higher court judges," Tiller says.

But sometimes lower courts do make new interpretations of what the law is, and those exceptions are what is most striking to Tiller.

When the political persuasion of a majority of judges on a higher court is in alignment with the political leanings of a lower court, the conditions are ripe for shaping law as well as the facts of the case. That can mean interpreting a statute in a new way or overturning an established precedent and lead to even larger disparities in sentences.

"The more the higher court shares the same political ideological preferences as the lower court, the more likely the lower court can shape the law to the lower court's political orientation," Tiller says.

"If you have a liberal sentencing judge in a lower court who sits in the shadow of a conservative circuit appeals court, for example, that judge is unlikely to offer a new interpretation of law. But if the higher court also is liberal, the lower court has much more opportunity to shorten sentencing outcomes through both fact and law rationales."

By contrast, a prosecutor who wants longer prison sentences for violent and drug offenders would rather have a Republican-appointed sentencing judge in the lower court who happens to be under a circuit court of appeals whose majority is Republican-appointed.

Tiller and Schanzenbach defined political ideology by whether the judge had been appointed by a Democrat or a Republican. They compared the political ideology of a lower court and its appeals court to see how sentence lengths of trial judges were affected.

The two Northwestern University School of Law professors are filling in missing scholarship on the courts, Tiller says. Political scientists have shown that political ideology matters in court outcomes, but they know little about how legal doctrines are made and used by the courts, he says. In contrast, legal scholars well understand legal doctrines and how judges use them, but they have not been systematic in developing or testing any theories about how judges' motives influence their decisions.

Using game theory learned at the University of California, Berkeley, Tiller has been enhancing the literature by showing just how lower and higher court judges strategize with each other in their use of legal doctrines and decision-making techniques.

An earlier study of Tiller's that looked at environmental law cases found similar political manipulation of judicial decisions.

"Overall these findings suggest that judges manipulate law and facts over various areas of law," he says.

Tiller also looked at political dynamics among judges on appellate circuit courts in a 1998 article in the Yale Law Journal, written with Professor Frank Cross, University of Texas at Austin School of Law. They found that an appellate panel (three randomly chosen judges from the full circuit) of three Republican appointees or three Democratic appointees will often ignore the legal precedent if it doesn't give them the outcome they want.

"But if one of the three judges comes from the different party—say two Republicans and a Democrat or two Democrats and a Republican—the judge from the minority party acts as a whistle blower and forces the other two to obey the law," he says. "Political diversity on a court seems to offer real value in making sure legal precedents are obeyed."

In a recent Columbia Law Review article, Tiller and Cross proposed that because of the benefits of judicial whistle blowing, three appellate judges from the same party should never be put on a panel together.

"The point is that even though we do have political ideologues on appeals courts, the system could be tinkered with enough to make sure that legal doctrines get obeyed," Tiller says.

In much the same vein, Tiller believes that lower as well as higher courts could be tinkered with to ensure that they are ideologically different from one another so that legal doctrines get obeyed.

"Setting up such structures to counteract the ideological manipulation of judicial decisions would be far from easy, but well worth thinking about," he says.

Tiller points out that the press and the general public already is well aware of how politics skew judicial decision making.

"It is time," he concludes, "that academics and policy makers start thinking about how to restructure the institutions of the judiciary to optimize the political dynamics of judicial decision making for better creation and use of the law."

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