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Abstract
In political systems where political parties are not the sole veto player on judicial nominations, the judicial selection process obfuscates judges' political preferences. However, activists, politicians, pundits, public opinion, and scholars try to assess these preferences because they are crucial for understanding the interaction between judges and political elites. We present a method for inferring judges' political ideology without prior knowledge of their political affiliations. The method we suggest uses the Manifesto Research Group on Political Representation's (MARPOR) coding scheme to assess judges' decisions within their political ideology contexts. We claim that this contextualization accounts for variance in judicial review patterns and associates the judges' reviews with their ideological positions. We apply our method to the Israeli High Court of Justice's judges' decisions and use our data to discuss some public quandaries regarding the court.
Acknowledgments
We would like to thank Justice System Journal's editor and reviewers for patiently allowing us to improve our paper's analyses and presentation. We would also like to thank the Comparative Courts' panel participants at the SPSA 2020 annual conference, most notably Lee D. Walker and Jeffery K. Staton. All faults and errors are ours.
Notes
1 To the best of our knowledge, comparative judicial politics scholars use expert evaluations rather than judges' preferences to examine structural issues concerning judiciaries (e.g., Ríos-Figueroa and Staton Citation2012).
2 Qualitative analyses of courts as multidimensional political settings include Stearns Citation2002 and Epstein and Shvetsova Citation2002.
3 Previously called the Comparative Manifestos Project (CMP) and before that, the Manifestos Research Group (MRG).
4 See Martin, Quinn, and Epstein (Citation2005) for a further critique of the Segal and Cover approach.
5 We should note that several analyses of MARPOR also use inductive classification methods to identify ideological affiliations (Klingemann and Budge 2013). However, scholars mostly use them for content validity assessments of political texts rather than the actual estimation of ideological preferences (Budge and Meyer Citation2013b).
6 We equate MARPOR's policy domains with what we referred to above as policy dimensions and use these terms interchangeably.
7 Even if analysts do not accept RILE's multidimensional definitions of left and right, MARPOR's coding allows for a dimension-by-dimension analysis of judicial decisions that examines judges' decision-making by dimensions rather than in a holistic manner.
8 Weinshall Keren, Lee Epstein & Andy Worms. The Israeli Supreme Court Database, 2018 version URL: http://iscd.huji.ac.il
9 Procedures in the High Court of Justice Regulations, 5744 1984, articles 16-18. https://www.nevo.co.il/law_html/law01/055_063.htm#Seif5 (Hebrew).
10 Some claim that since the middle of 2018, the ISC has made decisions that can be considered an Israeli Chevron (Guttman, ICON-S-IL Blog, June 12, 2018). Nevertheless, the influence of these decisions on the court’s behavior is yet to be determined.
11 The published version of the IHCJE ends in 2017. For this paper, we updated this dataset by filtering out some cases and adding cases from 2018.
12 Another ready-made IHCJ dataset is the Israeli Supreme Court’s Dataset (ISCD), which scrapes and codes data from Israel's Judicial Authority's website (Weinshall and Epstein Citation2020). It is located at http://iscdbstaging.wustl.edu/data and began in 2011. We preferred a more comprehensive dataset in terms of its time scope (albeit much less inclusive in the number of cases it contains) and therefore chose the IHCJE. To ensure that the IHCJE dataset's case selection was reliable, we examined the number of petitions that followed the IHCJE profile with the ISCD data and compared it to the IHCJE dataset. The result was about the same number of petitions for the years in both datasets. Hence, the time scope and the focus led us to prefer the IHCJE dataset. We are certain that the ISCD would be a better dataset for other research purposes. Furthermore, for the 2018 extension, we used the ISCD dataset as its source for filtering out the relevant cases for analysis. Thus, these two datasets are complementary rather than mutually exclusive.
13 Scholars of Israeli legal affairs use Nevo quite extensively. Typing "Nevo legal database" in Google Scholar yields dozens of papers and books using the dataset or referring to it.
14 We used JMP PRO 16 for the statistical analyses.
15 This outcome might be surprising for those interested in Israeli judicial politics. Barak's image is of a leftist who should be ranked as the most left-of-center judge. However, Barak reviewed many petitions, and as such, his ideological tendency might have been diluted. Still, according to expectations, he is a salient part of the more leftist group of judges on court, with the left being center-left rather than left. We leave it for other analyses that will deal with the political implications of Israeli judicial politics to delve more into this issue.
16 https://visuals.manifesto-project.wzb.eu/mpdb-shiny/cmp_dashboard_dataset/ viewed April 2020.
17 The years we dealt with were election years in Israel. As our dataset began in 1995, we focused on MARPOR outcomes after 1995. Furthermore, we considered the political parties that were involved in elections in these years and that MARPOR's coders analyzed.