Judicial decision-making appears to be a very much misunderstood process even among those closest to its practice. At first glance it may appear that judicial decision-making is a coldly mechanical process in which the particular case is subsumed neatly under a clear, but not necessarily just, general law, with the results flowing forth with computer-like invariability. We are bothered by the apparent fact that the generic nature of the law leaves it insensitive to the differences among individual cases before the bench. Yet it takes only a brief second glance at either the operation of the courts themselves or the public reaction to decisions of the courts to realize that the decision-making procedure of the courts is anything but computer-like.
A far more common view of judicial decision-making is that it is simply arbitrary. At one level, we face the whole issue of judicial "discretion." We speak of some judges as "liberal" and others as "conservative," suggesting that they are likely to disagree as to what should be the decision in certain crucial sorts of cases. At this point we might say that, within the rather expansive limits set by the word of the law (that the written law must be, to a very significant degree, underdetermined requires, I take it, no argument), the judge is free to decide as he or she is inclined. The inclination of the judge may be decided by mere whim, or by a desire to enforce the judge's particular brand of political morality. We refer to the resultant decision as a "landmark decision" if we like it, as "twisting or bending the law" if we disagree.
At another level, we may focus on the many other non-rational factors that enter into the process by which judicial decision is reached. Many a case is won or lost on the basis of the relative levels of competence of the opposing legal counsels. Moreover, we do regard such questions as, "Is the jury predominantly the same socio-economic level (ethnic group, age group, etc.) as the defendant?" as relevant to what we might anticipate the result to be in a criminal trial. Yet I think that analysis will show that the process of judicial decision-making is no more arbitrary than it is computer-like.