making conservative decisions. Instead, these orientations inXuence styles of
decision-making. ‘‘Activist’’ judges, for instance, are more likely to be concerned
with the social consequences of their decisions, since activists are seeking to
maximize ‘‘justice’’ (be it a conservative or liberal version of justice). Restraintists
seek to maximize ‘‘legality’’ (and the law is sometimes liberal, just as it is sometimes
conservative), to the extent possible. Thus, judicial activism is not correlated with
the ideological thrust of decisions, but instead is a description of the types of
variables upon which judges are likely to base their decisions.
Although role theory is rarely referenced in contemporary research on judicial
decision-making, one can readilyWnd instances in which the theory is implicitly
implicated. For instance, consider again the competition between political
scientists and legal experts in predicting Supreme Court decisions. One commen-
tator on the contest observed that, ‘‘The more conservative the justice, the larger the
role played by ideology and the more accurate the model’s attitudinalist prediction.’’
However, ‘‘Legalism, not attitudinalism, is a better way to predict the votes of the
four liberals because they place more emphasis on law than politics’’ (Sherry 2004 ,
771 ). In essence, Sherry is making the observation Gibson ( 1977 ) made long ago:
Judicial activists need not be (nor are they usually) liberals; conservative activism is
quite common; and role orientations determine styles of decision-making.
Norms inXuence many aspects of judicial behavior, as, for instance, the import-
ant inXuence of the norm of consensus (a further example of implicit role theory).
This norm—which grants or denies legitimacy to the public expression of dissent
by judges—has changed over time in the US Supreme Court (Caldeira and Zorn
1998 ), and these norms have clearly shaped the behavior of judges. Strong norms
against dissent still seem to govern in many state supreme courts (Brace and Hall
2005 ), and these norms directly inXuence the behavior of judges. Judges are not free
to adopt with impunity any particular decision-making style; instead, they are
constrained by normative expectations.
There is a rich but unWnished empirical literature on judges’ beliefs about what
constitutes proper judicial behavior, and there are some important lessons from
that research. First, judges vary. Any analyst who treats judges as a homogeneous
group when it comes to conceptions of judging is making a serious mistake.
Thus, micro-level analysis of individual diVerences is essential. Second, what one
believes one should do is not always what one can do. A judge who believes
strongly in strictly following precedent will inevitably be confronted with cases
for which no precedent exists. Perhaps more important, the feasibility of follow-
ing precedent may be undermined by other conXicting objectives (e.g. maintain-
ing the legitimacy of the court itself), forcing judges to choose between
competing cherished values. Finally, simplistic and symbolic (and politically
valuable) descriptions of methods of decision-making often obscure very real
diVerences among judges. When judges are asked for instance whether judges
should follow precedent, they overwhelmingly reply, yes. But when asked whether
520 james l. gibson