In our Essay, we put forward a methodology to assess the amount of political bias that affects judges based on the decisions judges make on whom to cite in their opinions. Unlike prior studies looking at judicial bias that focus on judicial voting outcomes, our study of bias in citation practices is aimed at uncovering more subtle forms of bias. Judges may shy away from acting overly biased when making a highly visible decision such as voting in a particular case, but instead seek to shift the law more subtly through their reasoning and citation patterns in the opinion, thereby affecting future precedent. Using a unique dataset of the citation patterns contained in federal circuit court decisions from 1998 to 1999, we provide a preliminary ranking of judges based on political bias. Our Essay makes the normative case for ranking judges based on political bias. Judges may aim to act without bias (or at least want the public to perceive judges as unbiased). But their predispositions likely result in biases. If judges can be made aware of biased behavior, when measured systematically over a large set of cases, we argue that judges will endeavor to reduce their level of bias. Demonstrating themselves as less biased may improve the judges’ chances of future promotion and also improve their standing among their peers and the public.
Mitu Gulati & Stephen J. Choi, Ranking Judges According to Citation Bias, 82 Notre Dame Law Review 1279-1309 (2007)