Are judges “politicians in robes” or neutral interpreter of law? The question of what drives the behavior of judges is one of the central issues in judicial politics. Recent work on the U.S. Supreme Court conceptualizes judges as being constrained by a mixture of policy and legal motivations, providing empirical evidence for this account based on the voting behavior of individual justices (Bailey and Maltzman 2008, 2011). Unfortunately, such analyses often fail outside the United States due to the non- disclosure of individual judges’ votes. One noteworthy exception are dissenting opinions.
To investigate judges’ motivations outside the United States, we leverage the fact that judges reveal their individual positions in dissents. More specifically, we analyze which judges are more or less likely to write dissenting opinions, including the specific legal arguments they use. We argue that the weight of policy motivations systematically depends on a) the judge’s professional background and b) the legal issue to be decided. We expect judges with a prior political career to be more policy-driven than former professional judges or law professors. Furthermore, we expect a higher impact of policy preferences on legal norms that can be exploited politically (e.g. basic rights) than on norms not being linked to ideologically contested matters (e.g. procedural rights).
We test these hypotheses by analyzing a novel dataset of micro- level data on all decisions with dissenting opinions in the Second Senate of the German Federal Constitutional Court between 1970 and 2014. For all dissenting judges, we coded the specific norms on which they diverged from the majority opinion of the court. This unique data enables us to separate real dissent from concurring opinions and pinpoint the contested legal arguments. In line with our theory, statistical analyses show that the likelihood of dissent increases with the ideological distance between a judge and the collective position of the court and that this effect is indeed conditioned by judges’ professional background and the potential politicization of the legal issue at hand.
