The American judicial system is not a static, simple, or mechanical entity. Rather, it is a complex organization that is developed and staffed in response to changing caseload and societal pressures through a process that is inherently political. The key personnel who help the judiciary function bring varied backgrounds and perspectives with them that influence the work they do. As is the case with any political system, understanding American politics and policy making requires an understanding of the judiciary’s role in the American political system. In addition, on a daily basis, courts function to resolve disputes. While most cases have little direct impact on American policy or society broadly speaking, the resolution of these cases is important to those who turn to the courts of law to resolve their disputes.
Lisa M. Holmes
Brett Curry and Banks Miller
The pervasiveness of their influence arguably makes prosecutors the most consequential actors in the American criminal justice system. Armed with discretion over which cases to pursue, what charges to file, and which issue areas to prioritize, prosecutors play a decisive role in determining what progresses from investigation to the courtroom. It is their charge to do justice in each case, but that obligation hardly forecloses the influence of politics on their decisions. Despite their centrality, however, prosecutors and their behavior have failed to garner even a fraction of the attention that scholars have directed toward law enforcement, correctional systems, or judges. The discretion of American prosecutors is theoretically immense; there are few formal constraints upon it. If a federal or state prosecutor declines to pursue a case that has been referred to him or her, that declination decision is essentially immune from judicial review. But these formalisms come with more practical limitations. At the federal level, United States Attorneys are appointed by the president and, therefore, are expected to carry out an administration’s general policy priorities. In the states, most district attorneys answer to the electorate, which imposes its own constraints on a prosecutor’s freedom of action. Chief prosecutors—state and federal—are simultaneously principals to their subordinates and agents of the people or the president. If those considerations were not enough, American prosecutors must be mindful of still other factors. How might their actions today impact their future career paths? What influence might legislative changes, public opinion, or judicial rulings have on how they operate? Scholarship on prosecutors has addressed some of these questions, but we still lack a good understanding of all the ways in which politics infects prosecutorial decision-making. As “progressive prosecutors”—many who are former public defenders—continue to win office, new questions will arise about how far prosecutors can push reform of the criminal justice system. A major looming question is how voters conditioned to law-and-order rhetoric will evaluate the new prosecutors. Some preliminary work shows that non-White prosecutors tend to reduce rates of incarceration, while Republican-affiliated prosecutors increase them.
Konstantinos V. Katsikopoulos
Polymath, and also political scientist, Herbert Simon dared to point out that the amounts of time, information, computation, and other resources required for maximizing utility far exceed what is possible when real people have to make real decisions in the real world. In psychology, there are two main approaches to studying actual human judgment and decision making—the heuristics-and-bias and the fast-and-frugal-heuristics research programs. A distinctive characteristic of the fast-and-frugal-heuristics program is that it specifies formal models of heuristics and attempts to determine when people use them and what performance they achieve. These models rely on a few pieces of information that are processed in computationally simple ways. The information and computation are within human reach, which means that people rely on information they have relatively easy access to and employ simple operations such as summing or comparing numbers. Research in the laboratory and in the wild has found that most people use fast and frugal heuristics most of the time if a decision must be made quickly, information is expensive financially or cognitively to gather, or a single/few attributes of the problem strongly point towards an option. The ways in which people switch between heuristics is studied in the framework of the adaptive toolbox. Work employing computer simulations and mathematical analyses has uncovered conditions under which fast and frugal heuristics achieve higher performance than benchmarks from statistics and machine learning, and vice versa. These conditions constitute the theory of ecological rationality. This theory suggests that fast and frugal heuristics perform better than complex optimization models if the available information is of low quality or scarce, or if there exist dominant options or attributes. The bias-variance decomposition of statistical prediction error, which is explained in layperson’s terms, underpins these claims. Research on fast and frugal heuristics suggests a governance approach not based on nudging, but on boosting citizen competence.
Nathan C. Walker
A society’s political and legal treatment of religion is a distinct indicator of the health of a democracy. Consequently, high levels of political and legal contempt for religion in the United States can be an indicator that partners in American democracy may be going through a divorce. By drawing upon studies that measure voter attitudes and behaviors, as well as research that tracks the levels of social hostilities and violence toward religion, students of democracy see into two of society’s most revealing mirrors: political rhetoric and the nation’s laws. These reflections can unveil powerful questions about the true character of a nation: will democracy rule from a place of contempt for the religious other, or from a state of passive political tolerance, or from a constitutional commitment to actively protect the rights of those with whom we disagree? Theories of political tolerance and psychological studies of contempt prove helpful in examining contemporary levels of religious animosity in politics and law. The Religious Contempt Scale, as introduced in this essay, gauges a society’s willingness to tolerate the religious other. When special attention is given to the frequency and degrees of severity of expressions of contempt, it becomes clear that contempt has political utility: to motivate the intolerant to gain access to power and, in turn, to motivate those who are intolerant of intolerance to remove them.