This chapter examines the effect of external forces on courts. It surveys developments relating to codes of judicial ethics, including recent revelations concerning Supreme Court Justices. It examines judicial selection processes and the ways in which they have come to increasingly be driven by ideological considerations. Finally, it discusses recent work concerning changes in the nature of media coverage of the judiciary.

This chapter takes up a final source of constraint, specifically the norms of the profession and judging. The idea that unarticulated, and often inarticulable, shared understandings serve as a source of discipline and constraint has a long history. Among the labels for it are situation sense, craft values, professional norms, and tacit knowledge. For such norms to exert force, they must be shared, and the chapter explores ways in which the scope of shared professional understandings has diminished. The polarization present in our society has made its way into the profession. More broadly, our culture has developed in ways that privilege the tangible and quantifiable, which has led to a collective preference for metrics over more traditional forms of expertise.

This chapter examines ways in which longstanding features of the legal system serve to counteract the forces outlined in Chapters 2 and 3 and thereby minimize the influence of improper factors on judicial behavior. It considers the adversarial process, the doctrine of precedent (or stare decisis), and the practice of justifying decisions via written opinions, and examines the ways in which the nature of each – and thus its effectiveness in channeling judges – has decreased. It further explores changes in the practice of law and in the culture more generally, including automation, that have altered the manner and depth in which lawyers and judges engage with the law.

The conclusion summarizes the book’s arguments concerning the influence of polarization and the fracturing of norms on the judicial process, and also its remedial suggestions.

This chapter focuses on work exploring the influence of ideology on judicial decision-making. It explores the nature of indeterminacy as developed by the Legal Realists and the Critical Legal Studies movement, the latter of whom regarded judicial decision-making as thoroughly political. It then takes up work, conducted largely by political scientists, that imagines judges as political actors in the same way that legislators are, and surveys both refinements to and critiques of that work.

This chapter introduces and unpacks the standard model of judging, which imagines a system in which independent judges apply pre-existing legal rules to determine the winner following an adversarial proceeding. It thus explores the concept of judicial independence and the ideal of the rule of law, revealing both to be more complex and contingent than first meets the eye. Judicial independence exists in relation to the actors and forces we want judges to be independent from and is necessarily tied to judicial accountability. The rule of law is necessarily an incompletely realizable ideal because lawmakers cannot perfectly anticipate the future and because the law is often motivated by conflicting values. Indeterminacy is the result. The idealized adversarial process is likewise only imperfectly realized, often by design.

This chapter argues that because judging inevitably requires the exercise of judgment, one of our most critical concerns should be ensuring that the people we select as judges have good judgment. It explores what good judgment might mean and draws on work in both law and philosophy exploring the nature of judicial character. It further explores two components of judicial character, specifically practical wisdom and intellectual humility, and in the case of the latter, surveys a growing body of work in philosophy and psychology that investigates humility’s nature and benefits. It briefly outlines ways in which a renewed emphasis on judicial character might be implemented.

Introduces the book through a discussion of two cases. The first is Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, and in which the dissenting justices suggested that the majority’s decision to do so was unwise. The second is Rucho v. Common Cause, in which the Court concluded that courts lack the capacity to resolve claims concerning excessive partisanship in gerrymandering. Together, the cases help illustrate the book’s themes: the inescapable role of judgment in judicial decision-making and the accumulation of ways in which changes in courts, the legal profession, and the culture more broadly have come to undermine judgment’s role.

This chapter focuses on additional mechanisms for channeling judicial behavior that can be regarded as products of the developments surveyed in the Chapters 4, 5, and 6. One is judicial specialization. The other is the rise of algorithmic-seeming interpretive methodologies, specifically textualism and originalism. The chapter critiques the methods and emphasizes that, despite some proponents’ efforts to portray them otherwise, neither succeeds at eliminating judgment from its central role in judging.

This chapter continues the task of considering what, beyond law as it is often imagined, accounts for judicial decision-making. It explores work investigating the influence of motivated reasoning on judges’ behavior, including that which emphasizes the influence of judges’ desire to satisfy the expectations of groups such as their professional peers. It examines the celebrity culture that has arisen around many Supreme Court justices as providing an avenue for the influence of motivated cognition. It also explores other research into the influence of psychological phenomena, such as heuristics and biases, on judges’ decision-making and finally considers the significance of our tendency to notice bias more readily in others than in ourselves.