Legal scholars study how judicial ideology, race affect voting rights cases

The Voting Rights Act of 1965 was enacted to combat the widespread disenfranchisement of African-American voters; the act’s powerful political effects often have led commentators to worry that judges might enforce the act in a partisan fashion.

Now, Adam Cox and Thomas Miles—both Assistant Professors in the Law School—have produced what they call “the first systematic evidence” on this concern, showing that the success of lawsuits brought under the act is closely connected to the “judicial ideology and race of judges deciding those cases.”

Cox and Miles examined every case decided since 1982 under Section 2 of the Voting Rights Act—which included more than 300 decisions and 700 votes by individual judges. Section 2 specifically prohibits voting practices and procedures that discriminate on the basis of race. In these voting rights cases, Cox and Miles found that partisanship and race are closely connected to how judges vote.

Democratic judicial appointees were significantly more likely than Republican appointees to vote for liability under Section 2, they said. In addition, judges were affected by the political affiliation of their colleagues; they found, for example, that a Democratic appointee sitting with two other Democratic appointees was more likely to vote in favor of liability than a democratic appointee sitting with two Republican appointees.

With respect to race, they found similarly noteworthy results. White judges were only half as likely to vote for liability as African-American judges. But those white judges became more likely to vote in favor of liability when sitting with African-American judges

“These findings have significant implications for a number of controversies, including debates about which institutions are best situated to protect minority voting rights and disputes about the role of diversity within the federal judiciary,” Cox said. Cox and Miles’ paper, “Judging the Voting Rights Act,” will be published in the Columbia Law Review this fall.

The research is part of a growing body of scholarship, much of it produced at the University Law School, studying judicial behavior. Cass Sunstein, the Karl N. Llewellyn Distinguished Service Professor in the Law School and the College, oversees the Chicago Judges Project, which studies judicial ideology in federal courts.

Sunstein and his colleagues’ work has confirmed what is often suspected in legal circles—that a judge’s partisan affiliation matters in deciding cases. Cox and Miles have provided the first empirical evidence that race can also be extremely relevant to judicial behavior.

Most striking, they said, was the racial “panel effect” in voting rights cases.

When a white judge, sat on a panel with at least one African-American judge, he was at least 20 percent more likely to find a Section 2 violation than when he sat on a panel with only white judges. Cox and Miles said that there are a number of possible explanations for this effect. One possibility is that African-American judges bring different experiences to the bench, and that their white colleagues are persuaded by or defer to these experiences.

“Understanding better the causes of these panel effects is the important next step,” Miles said, “But whatever the causes, these findings raise important questions about the role of diversity in the federal judiciary.”