When Issue Salience Affects Adjudication: Evidence from Swiss Asylum Appeal Decisions

The forthcoming article “When Issue Salience Affects Adjudication: Evidence from Swiss Asylum Appeal Decisions” by Judith Spirig is summarized by the author below. 

Issues surrounding refugee migration have been featuring everywhere from parliamentary agendas, to media coverage and public debates. An extensive literature shows that the salience of an issue affects voters’ political attitudes and electoral behavior, perhaps particularly so when it comes to immigration. Do these findings extend to the behavior of judges?

Imagine the following scenario: two people from the same country of origin appeal the dismissal of their asylum requests. Both get assigned the same chair judge to handle their respective appeal and receive their decision at a similar point in time. If one person’s appeal is handled when newspapers generally report more on refugee issues than when the other person’s appeal is handled, is her appeal less likely to be granted?

There are several reasons why we could think that issue salience would not affect judicial decision making. The principle of “equality before the law” is enshrined in many constitutions and research shows that the attitudes of elites with more expertise and experience are more stable. Yet, existing work on judicial decision making has documented that, in many ways, judges’ decisions are shaped by similar factors as the political behavior of regular citizens.

This paper argues that we should expect issue salience to affect judging if there is clear correspondence between a salient, politicized issue and the legal issue to be decided. In the specific case of asylum decisions, issue salience reduces the asylum appeal grant rate, because the perception of and media coverage about asylum issues is largely problem-centered.

To test this argument, I leverage the universe of asylum appeal decisions from the Swiss Federal Administrative Court and the volume of media coverage on asylum and refugee issues in Switzerland between 2007 and 2015. I find that higher issue salience leads judges to decide otherwise similar asylum appeals less favorably. When average daily issue salience increases by one standard deviation (+ approx. 9 newspaper articles), an appeal’s probability of success decreases by about 3-6 percentage points. Additional analyses suggest that this effect is unlikely to bedriven by accountability pressures, as there is no evidence that judges are responding to incentives created by the judicial retention system or timing their decision sin response to issue salience. Furthermore, an automated text analysis of newspaper articles reveals that the salience effects are larger when newspapers report more on asylum topics that are in line with concerns documented to drive public anti-immigrant sentiment.

How generalizable are these findings? I contend that while the issue salience effect might be particularly pronounced in the case of Swiss asylum appeal decisions, it is likely also present in other Western countries and other, similarly politicized, issue areas. Beyond advancing our theoretical understanding of the role of extra-legal factors in judging, this study emphasizes that inconsistency in judging arises not only from disparities between judges, but also from disparities between decisions of the same judge sat different points in time.

About the Author: Judith Spirig is Lecturer, Department of Political Science at University College London. Her research “When Issue Salience Affects Adjudication: Evidence from Swiss Asylum Appeal Decisions” is now available in Early View and will appear in a forthcoming issue of the American Journal of Political Science. 

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The American Journal of Political Science (AJPS) is the flagship journal of the Midwest Political Science Association and is published by Wiley.

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