Revealed Preferences of Norwegian Supreme Court Justices

Abstract

One conventional perspective on judicial behavior suggests that justices’ decisions can be understood as a function of basic underlying political values and attitudes, and not just strictly in terms of legal theory. In this study we show the degree of non-unanimous decision in the Norwegian Supreme Court and we argue that the attitudinal model offers an explanation of the decision-making behavior of Supreme Court justices. As evidence, we draw on a conflict-of-interest case on judicial impartiality, discuss previous studies of non-unanimous decision making, and subject eleven recent plenary non-unanimous decisions handled by the Norwegian Supreme Court that involved constitutional issues to a multidimensional scaling analysis that discloses considerable variation among the justices. We demonstrate that judicial disagreement can be explained by political factors and conclude that explanations other than legalistic ones contribute to the diverese spatial location of justices. If it is the case that Supreme Court justices disagree on the basis of extra-legal considerations, then the invisibility of the court in the public at large, as well as the relatively non-transparent appointment process of justices, may prove to be problematic in a democratic society.

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