Critical Reflections on the "Judicial Politics" Field of Political Science

Brian Tamanaha

No contemporary legal theorist can afford to ignore the work of political scientists in the “judicial politics” field. Reams of informative studies are being produced by political scientists on an array of subjects relating to judging and the judiciary. (excellent introductions to the literature are Maveety, The Pioneers of Judicial Behavior, and Baum, The Puzzle of Judicial Behavior). Many legal theorists, like Ronald Dworkin, construct their theories around claims about what judges do and/or should do, yet relatively few show any familiarity with the information available in the judicial politics literature. Fortunately, not all legal theorists are guilty of such neglect—Richard Posner and Cass Sunstein, for example, are well versed on these studies—and it is a positive sign that in the past decade a number judicial politics studies have been produced in collaboration with law professors and published in law journals (Frank Cross’s studies stand out), making it easier for legal theorists to find.

Having said these nice things, I will now offer a few critical reflections on the literature. The judicial politics field can be roughly divided into two (closely connected) streams: the study of courts as political institutions within the broader political system; and the study of judges as “politicians in black robes” whose legal decisions are determined by their personal values and preferences. Much of the work in the first stream—for example, studies that view courts as policymakers operating in an interactive relationship with legislatures and the executive, each with different amounts of political capital and types of resources—is thought provoking and powerful.

My comments below are directed exclusively at the second stream, toward the studies designed to prove that judicial decisions are a function of the personal views of judges. People working in the field have already voiced some of these objections, but perhaps it is useful to hear them from an outsider.

1. OVERKILL ON THE SUPREME COURT. Over a hundred quantitative studies (I estimate) have been conducted on the US Supreme Court by political scientists to demonstrate that the decisions of Justices (on the merits and on cert. decisions) correspond with their political views to a high degree.

Now, that’s a shocking finding!

Sorry about the sarcasm. But it’s hard not to scratch one’s head in bemusement at all the time, effort, and ingenuity being put into proving something that just about every first year law student takes for granted. There was real value in the first two generations of studies that demonstrated statistical correlations between the attitudes and decisions of Justices. There is value in demonstrating that these correlations are also evident with respect to Justices who claim to adhere to a theory of interpretation that screens out personal values—like the originalism of Scalia and Thomas—because it offers concrete evidence against their claims. There is value in trying to determine whether these correlations change over time (for individual justices and for the court as a whole), which would raise important questions. And there is much value in keeping tabs on the voting patterns of all sitting Justices.

But these studies should not be the dominant focus of the judicial politics field. The basic point they make is neither new nor profound. A political scientist, W.C. Dodd, wrote the following about the Supreme Court in the 1909 issue of Political Science Quarterly: “In this field [public policy] decisions of the courts necessarily depend not upon any fixed rules of law but upon the individual opinions of the judges on political and economic questions; and such decisions, resting, as they must, upon no general principles, will be especially subject to reversal or modification when changes take place in the personnel of the courts.” Felix Frankfurter observed in the 1916 Harvard Law Review that “Called upon late in life to teach constitutional law, a great teacher of property law, after a brief trial, gave it up in despair on the ground that constitutional law 'was not law at all, but politics.'"

A century on, political scientists are still conducting studies to document the same point. We get it.

Here is a constructive suggestion from a legal theorist: informative studies of the Supreme Court would be ones that explore why and under what circumstances Justices render legal decisions that do not match their personal views. After all, no correlation is complete, and Justices differ among themselves in the extent of correlation. Explaining situations where the correlation does not show up would teach us something. We might even learn that law matters in certain ways—a perhaps heretical idea in this context, but one worth examining (p.s. take a closer look at those unanimous cases).

Aside from telling us what we already know, this obsessive attention to correlations between the Justices’ attitudes and their legal decisions has, in two different ways, adverse consequences for the field of judicial politics and for our understanding of courts. First, the mere fact of the substantial allocation of effort by political scientists to these studies implies that the Supreme Court has a major role in the political system, but some of the more intriguing work in the first stream of the field indicates that the Supreme Court is less important as a political player than we commonly assume. Fred Schauer made a version of this point in his 2005 Supreme Court "Forward" in the Harvard Law Review when he showed that the Court’s docket is filled with issues that rate low on the scale of public salience. Moreover, the number of cases the Supreme Court decides has fallen over the years, and especially this year, which might say something about its (diminishing?) role in the political context.

The second problem with the inordinate focus on the Supreme Court is that it implicitly tends to suggest that all courts and all judges are like the Supreme Court, when the reverse is true: in fundamental respects the Supreme Court is strikingly unlike other courts. If the field is “judicial politics” (not “Supreme Court politics”), then it makes little sense that the single most unrepresentative example of a court takes the lion’s share of the attention. One does not learn about lot about “judicial politics” generally by focusing on the Supreme Court. The good news is that lately more studies have been done on appellate courts (Scherer’s Scoring Points is excellent), though there is still relatively little research on trial courts, where the vast bulk of judging takes place.

2. DROP THE CARICATURED VIEW OF THE “LAW.” For the last few decades, the field has been dominated by what is known as the “attitudinal model.” In basic terms, this involves quantitative (behavioristic) studies that scale the political attitudes of individual judges, then measure the correlations between these attitudes and case outcomes. Starting in the mid-nineties, the “strategic model” gained some momentum in the field. It construes judges as purely rational actors who render legal decisions to further their goals. Although there is nothing in the strategic approach itself that determines that the goals judges seek are limited to personal policy preferences, much of the literature carries this assumption. Hence, both attitudinal and strategic models make the same basic point: judges render decisions in a manner consistent with (or advancing) their personal views—not according to the law.

In the last few years, a group of contrarian political scientists within the field—who go by the label “new institutionalists”—object that both approaches are narrowly one-dimensional and misleading. These critics insist that, among other factors (including personal attitudes), judicial decisions are influenced by socialization into the legal culture, by institutional constraints, by judicial role orientations, and, yes, by legal rules and principles, much of which is systematically ignored by the attitudinal and strategic models.

Though I am sympathetic to the critics, my main objection here is not to the attitudinal or strategic models as such because I believe that their methodological restrictions produce informative insights into judicial behavior.

Rather, my objection is to the peculiar way that the attitudinal and strategic models define the “legal model” they are dedicated to refuting. And make no mistake: the overwhelming orientation of this field—its very core reason for being, as reflected in the name “judicial politics”—is to refute the legal model of judicial decision-making (rather than to try to understand how judicial decision making takes place). These studies share a sort of “gotcha” quality—showing time and again that legal explanations for decisions are fraudulent. The problem is that many of these studies present the “legal model” in terms that no one today believes, and has not been espoused by anyone since the formalists a century ago.

Two brief examples will suffice. Jeffrey Segal and Harold Spaeth, the leading attitudinal scholars of this generation, designed a study to respond to their critics who said that law matters to Supreme Court decision making. If law matters, Segal and Spaeth reasoned, then once a case is decided, the dissenters in the original case would in future cases switch their position to comply with the majority owing to the doctrine of stare decisis. To no one’s surprise, their study showed that in subsequent cases the dissenters often maintained their original opposition. As anyone trained in law would remark, their view of stare decisis on the Supreme Court is ill informed (to put it politely). Justices can be legally justified in maintaining their original position regardless of the contrary precedent (though they may also conform to the precedent), and by common legal understanding the Supreme Court as a whole may repudiate precedents, which it has done many times.

The strategic model has its own odd view of what constitutes a legal decision. A common focus in this model is on the fluidity of judicial decisions, whereby judges on appellate panels alter draft opinions to garner more support. Although they are not entirely explicit about this, a number of strategic scholars (though not all) appear to think that this common behavior on the part of appellate judges is inconsistent with the legal model because the judges are not simply reading the legal rules, coming up with the right legal answer, and sticking to it no matter what colleagues may say in opposition. But this is a bizarre view of legal decision making. Indeed, as this and the previous example show, perhaps the only “legal formalists” alive today are political scientists who present implausible portrayals of the “legal model.”

Because there is an irreducible degree of indeterminacy in interpreting legal rules (though many cases are routine), it is an integral aspect of law and judicial decision making that in difficult cases judges engage in a back and forth process—conducted in terms of what is the best reading of the legal rules in the situation at hand—to come to an agreed upon result. And to have judges compromise their position for institutional reasons—for the perceived legitimacy that follows when judges speak with one voice on the law—is a legitimate legal consideration. It is odd to point to this process and say: “See, the legal model is a fraud; it’s all strategic goal-seeking.” This conduct can be seen in terms of goal-seeking, of course, but the driving goals in these instances are to come to the most correct legal answer in a manner that advances the law (broadly understood). Phrased in these terms, it not a critique of the legal model but an indication of its multi-sided complexity.

Judges themselves openly insist that this is the right way to come to collective legal decisions. In a recent interview with Jeffrey Rosen, Justice Roberts made this explicit:

[Roberts] says, he has tried to develop “a culture and an ethos that says ‘It’s good when we’re all together.’” He added that even smaller cases can provoke fierce initial disagreements. “Just because a case ends up unanimous doesn’t mean that’s how it started,” he emphasized. “The vote may be divided in conference, and yet if you think it’s valuable to have consensus on it, you can get it, and … once you do it in a little case, you can move on” to get it in big ones.

Roberts said he intended to use his power [to assign opinions] to achieve as broad a consensus as possible. “It’s not my greatest power; it’s my only power,” he laughed. “Say someone is committed to broad consensus, and somebody else is just dead set on ‘My way or the highway. And I’ve got five votes, and that’s all I need.’ Well, you assign that [case] to the [consensus-minded] person, and it gives you a much better chance, out of the box, of getting some kind of consensus.”

Roberts emphasized that this effort to seek a consensus is an important factor that distinguishes a legal decision from a political one:

The most important source of his decision to resurrect Marshall’s vision of unanimity, Roberts says, was his brief experience as an appellate judge on the U.S. Court of Appeals for the District of Columbia Circuit. “For whatever reason, it is firmly embedded [in] that court that you function as a court,” he said approvingly. “It is part of a pushback against the higher degree of politicization of the appointment process there.” In reaction to this politicization, judges on the D.C. Circuit have agreed, in Roberts’s words, “We’re not politicians; we’re judges, we’re a court, and we’re going to work real hard to be a court—partly because we don’t like people thinking we’re not, and partly because some of us had experience [on the court] in the bitter period where we weren’t.”

This is now the third or fourth generation of judicial politics studies. An overdue stage in the maturation of the field is to come up with a more sophisticated target for its efforts, and to produce a more nuanced understanding of what is involved in judicial decision making. The new institutionalists are moving in this direction.

The generally critical tenor of this post about judicial politics studies should not obscure my positive overall estimation of the work being produced. The field has great promise to shed light on issues that concern legal theorists, but to make a real impact it must take law more seriously (and legal theorists must take empirical studies more seriously).

P.S. I would be remiss if I did not mention my admiration for the work of Lee Epstein, whose post follows immediately below. Lee has conducted a great deal of leading work in the judicial politics field in the last two decades with an awareness of and attention to the concerns that I have raised in this post. The juxaposition of our posts is entirely coincidental, but useful. Her insightful observations drawn from the findings of quantitative studies of the Supreme Court offer a counter-point to my critical commentary.
Posted 1:58 PM by Brian Tamanaha [link]