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WHAT'S LAW GOT TO DO WITH IT?

Stanford University Press

Contents

Figures and Tables......................................................................................................................................ixAcknowledgments.........................................................................................................................................xiIntroduction: So What Does Law Have to Do with It? Charles Gardner Geyh................................................................................11 What's Law Got to Do with it: thoughts from "the Realm of Political science" Jeffrey A. Segal........................................................172 on the study of Judicial Behaviors: of Law, Politics, science, and humility Stephen B. Burbank.......................................................413 Law and Policy: More and Less than a Dichotomy Lawrence Baum.........................................................................................714 Law Is Politics Frank B. Cross.......................................................................................................................925 Path Dependence in studies of Legal Decision-making Eileen Braman and J. Mitchell Pickerill..........................................................1146 Looking for Law in all the Wrong Places: some suggestions for Modeling Legal Decision-making Barry Friedman and Andrew D. Martin.....................1437 stare Decisis as Reciprocity Norm Stefanie A. Lindquist..............................................................................................1738 how Judicial Elections are Like other Elections and What that Means for the Rule of Law Matthew J. Streb.............................................1979 on the Cataclysm of Judicial Elections and other Popular antidemocratic Myths Melinda Gann Hall......................................................22310 are Judicial Elections Democracy-Enhancing? David Pozen.............................................................................................24811 Judging the Politics of Judging: are Politicians in Robes inevitably illegitimate? James L. Gibson..................................................28112 the Rule of Law is Dead! Long Live the Rule of Law! Keith J. Bybee..................................................................................30613 three Views from the Bench Frank Sullivan, Nancy Vaidik, and Sarah Evans Barker.....................................................................328About the Contributors..................................................................................................................................343Index...................................................................................................................................................345

Chapter One

Thoughts from "the Realm of Political Science" Jeffrey A. Segal

Chief justice Roberts has declared himself to be a believer in precedent, a follower of the rule of law, an umpire calling balls and strikes:

Somebody asked me, you know, "Are you going to be on the side of the little guy?" And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath." (Roberts 2005)

While this may have been mere show, it wasn't mere show just for the Judiciary Committee. In a recent speech at the University of Arizona's Rehnquist Center, Roberts declared that the shift to a Supreme Court filled exclusively with former appellate judges took constitutional law out of "the realm of political science" and onto "the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?"(Liptak 2009).

Let's leave aside for the moment the fact that Roberts's assertions are empirically false—justices who served on lower appellate courts are not more likely to abide by precedent, and are not less likely to vote ideologically than are judges without appellate court experience (Epstein et al. 2009). What is the realm of political science? A quick answer is that political science examinations of judicial decision-making have focused on four partially overlapping models of such behavior: the legal model, the historical institutional model, the attitudinal model, and the strategic model.

The Legal Model

The legal model in its various forms holds that judges are motivated to establish an accurate, clear, and consistent interpretation of the law (Baum 1997). They do so by applying the facts of the case to relevant statutory and constitutional text, the intent of those who established those texts, and the precedents established by previous courts interpreting those texts (Segal and Spaeth 2002). Within this general framework, three broad operationalizations of the legal model exist. The most extreme version of the legal model claims determinate answers to legal questions. While Frank Cross correctly claims that "most contemporary scholars no longer adhere to the strict determinate formalist model" (Cross 1997, 255), it is still possible to read that there are "internally correct answers to all legal questions" (Markovits 1998, 1), or that "any extreme thesis that the law is always or usually indeterminate is untenable" (Greenawalt 1992, 11). From the political science perspective, while the charge of "formalism" is readily hurled at those testing the legal model (for example, Gillman 2001), only one article of which I am aware tests a determinate model of judicial decision-making (Kort 1963).

More realistically, political scientists, borrowing conceptually from Dworkin (1978), have typically examined whether legal factors have a gravitational force on judicial decisions. Even within this framework, scholars differ on how strong the force of law is. Dworkin's notion of a strong gravitational force requires judges to find the correct answer to legal questions and disallows any "independent force" of a judge's convictions "just because they are his" (Dworkin 1978, 118). Political scientists who have adopted a gravitational perspective on the influence of law nevertheless expect that policy preferences will play a substantial role in judicial decisions (Songer and Lindquist 1996; Spaeth and Segal 1999).

Beyond the gravitational models are postpositive legal models. According to Howard Gillman:

In the version of the argument that might be called "post-positivist," legalists make claims, not about the predictable behavior of judges, but about their state of mind—whether they are basing their decisions on honest judgments about the meaning of law. What is post-positivist about this version is the assumption that a legal state of mind does not necessarily mean obedience to conspicuous rules; instead, it means a sense of obligation to make the best decision possible in light of one's general training and sense of professional obligation. On this view, decisions are considered legally motivated if they represent a judge's sincere belief that their decision represents their best understanding of what the law requires. Burton [Steven J., Judging in Good...