How Judicial Politics is Like Area Studies

Part of the critique of the standard approaches to judicial politics that I’ve been working on involves looking at the justifications offered for why the field chose decision-making as its standard concept of the thing to be explained, and why decision-making generally came to mean formal rulings on the merits by Supreme Court justices. I’ve argued elsewhere that part of this was a mistaken assumption that such decisions were action as opposed to talk and a mistaken assumption that decisions are necessarily efficacious.* (I say mistaken both because these assumptions are not true, but more importantly  because they obscure rather than illuminate). Once we jettison those assumptions, it means that other actors should be brought into better focus and whether rulings are followed is an open question. This means shifting our attention from decision-making to legitimation and authority, with the more important question being not ‘why did this actor do as they did’ but ‘how will others respond.’

This requires quite a bit of close re-reading of early works on the field, and it also led me back to Nancy Maveety’s Pioneers of Judicial Behavior.  Maveety comes at this from the same orthodox position that I am trying to critique, but she is quite thorough in laying bare the assumptions for the authors she is discussing, which is rare.  One of the things she notes is that early judicial behavioralists sought to tie the study of the Court to the rest of the field, in part by challenging the idea that “the law” mattered in explaining what judges did.  The model was the judge-as-legislator, a policy-maker driven largely (if not solely) by ideology. But ultimately, the subfield found itself isolated and relatively ignored.  But there is little here in terms of explaining why the subfield is and has been disconnected from the rest of the field.

This passage helped clarify something important. In explaining the (supposed) relative weakness of heterodox scholarship compared to standard judicial behavior approaches, she says:

A reason may lie in the fact that scholars interested in broadening the scope of judicial studies to lower courts, trial courts, and non-U.S. courts have practiced a type of judicial area studies that does not focus on a theory of judicial decision making per se.  Instead, the emphasis has been on ethnographic studies of court systems or of law and legal institutions as part of a generally functionalist analysis of systemic objectives of dispute resolution, norm enforcement, or regime enhancement.  Critics here charge that such work is idiographic and is oriented less toward drawing generalizations across different court systems (Gibson 1986, 145) and more toward describing the cultural meaning of customary behaviors in a legal context (see Mather 1979, 3, cited in Gibson 1986).

[snip]

Ironically, of course, it is from such descriptively intensive , single-context studies of the U.S. Supreme Court that judicial behavioralism constituted its generalizable theory of judging as ideologically-driven political action.

It’s true that outside of studies of the U.S. Supreme Court, scholars aren’t typically seeking to generate theories of judicial decision-making.  But that’s not the same as saying they aren’t theoretical. What’s more, this is an odd goal. Why treat the category of ‘judicial’ as analytic rather than conventional? Why begin with the assumption that courts are similar enough to each other, but different enough from all other institutions, that cross-court generalizations are the goal? Beyond that, in what sense is it a “generalizable theory” to describe judging “as ideologically-driven political action” when it has been developed in so narrow a field as studies of the U.S. Supreme Court and according to many of its prime proponents, is unique to that context?

In a footnote, she suggests “systems functionalism” as developed by David Easton and Gabriel Almond, did not influence judicial process scholarship. I think this isn’t the case–the focus on decision-making was deeply rooted in the basic political model that the subfield has been organized around, and that influence explains this very thing Maveety is talking about.

I’ve earlier cited Joe Soss on this issue, who argues that “research on political action has traditionally identified the electoral institutions of government as the center of the political system”. But let’s go back to some of the original materials.  Here’s the Civic Culture.

In classifying objects of political orientation, we start with the “general” political system. We deal here with the system as a whole and include such feelings as patriotism or alienation, such cognitions and evaluations of the nation as “large” or “small,” “strong” or “weak,” and of the polity as “democratic,” “constitutional,” or “socialistic.” At the other extreme we distinguish orientations toward the “self” as political actor; the content and quality of norms of personal political obligation, and the content and quality of the sense of personal competence vis-a-vis the political system. In treating the component parts of the political system we distinguish, first, three broad classes of objects: (1) specific roles or structures such as legislative bodies, executives, or bureaucracies; (2) incumbents of roles, such as particular monarchs, legislators, and administrators, and (3) particular public policies, decisions, or enforcements of decisions. These structures, incumbents, and decisions may in turn be classified broadly by whether they are involved either in the political or “input” process or in the administrative or “output” process. By “political” or “input” process we refer to the flow of demands from the society into the polity and the conversion of these demands into authoritative policies. Some structures that are predominantly involved in the input process are political parties, interest groups, and the media of communication. By the administrative or output process we refer to that process by which authoritative policies are applied or enforced. Structures predominantly involved in this process would include bureaucracies and courts.

We realize that any such distinction does violence to the actual continuity of the political process and to the multifunctionality of political structures. Much broad policy is made in bureaucracies and by courts; and structures that we label as input, such as interest groups and political parties, are often concerned with the details of administration and enforcement. What we are referring to is a difference in emphasis, and one that is of great importance in the classification of political cultures.

The Civic Culture: Political Attitudes and Democracy in Five Nations
Gabriel Almond and Sidney Verba, p 14-15.

It’s all here. First, they treat institutions like legislatures, bureaucracies or courts as analytic categories, borrowing quite obviously from the American context in which this scholarship developed.  Second, they focus on the individuals who populate those institutions. Third, they conflate policies with decisions, and the emphasis on decisions as they key unit of politics.  Lastly, placing courts (in general) on the other side of the political system with the outputs opposite where the rest of high American politics takes place, and conceptualizing all that as non-political.  Judicial behavioralism fit snugly within this approach, as it tried to separate the U.S. Supreme Court, and possibly other constitutional high courts, from the rest of the judiciary, placing these on the political / input side.  (Don’t forget framing the entire analysis within the paradigm of democracy, right there in the title!)  As a result, the problem for the field, at least in the early years, becomes obvious–they were borrowing from a framework that places electoral actors at the center of the analysis, and judges, including those on the Supreme Court, are not elected.  The pull of this model, which is rooted in conventional ways of thinking about politics in the United States, may help explain why scholars have so often lamented things like ‘high court bias’ or U.S. focus without being able to overcome it.

So how about Easton?  (This version of his famous chart comes from the 1957 World Politics article). Same focus on decisions, same separation of inputs and outputs, same conflation of decisions with policies announced as well as with policies implemented, as opposed to treating rights as a claim and a resource.

This is exactly how the study of judicial politics has been organized.  The primary focus has been on decision-making (i.e. formal rulings on the merits, primarily in constitutional cases). Prior to that is the study of the staffing of courts, litigation, and agenda-setting (decisions by the Court to hear a case). On the other side is the study of judicial impact (i.e. implementation). Each of these has been handled separately.  And while Maveety points to a few exceptions within the field who did draw on these authors, the list is larger and includes more people who were closer to the mainstream of the subfield.  For example, Walter Murphy included a version of Easton’s chart in his classic Elements of Judicial Strategy (on page 32), and Glendon Schubert in Judicial Policy-Making says “The study if the judiciary is based upon an analytic framework known in sociology and political science as ‘systems theory’ or ‘structural functional analysis,'” and offers his own version of this chart (page 106).  But these claims, and the models they were built on, are largely forgotten.

(By the way, a great history which deals with the centrality of decision-making for behavioral political science, and how it related to U.S. Cold War politics, is Ron Robin’s The Making of the Cold War Enemy: Culture and Politics in the Military-Intellectual Complex.)

So on the one hand, judicial politics has perpetually been on the outskirts of the discipline despite continued efforts to reconnect, and on the other it (and the rest of the field) hasn’t really noticed how deeply rooted it is in these older political science models. But those models were jettisoned, especially in comparative politics, because it became obvious they just formalized the American system of representative democracy / separation of powers. But does that mean that there’s no point in separating the study of law in courts from the study of politics more generally?  Is there any justification for the subfield?

Thus the question in the title – how is judicial politics like area studies? Thinking of legal culture like more traditional senses of culture is helpful here.  It has its own language, its own rituals, roles and history.  In order to make sense of it, one needs to immerse oneself in it.  But you can’t take it for granted either–that is, law isn’t an explanation, but explanations for contests over law may well be.  You can’t treat ‘judicial’ as an analytical category anymore than you can any other cultural term. And there is little reason to think that the theoretical or methodological tools would be unique to that area, or that explanations would be unique to them.  That’s why I’ve argued that claim, not decisions, should be the main concept to be explained in judicial politics, because the claim breaks with those standard models of politics that actually aren’t general after all.

Interestingly, contests over law, or the boundaries of authority between the branches, or constitutional questions, are not unique to courts. To the extent judicial politics scholars are addressing these sorts of questions, and many are, even though they tend to be more heterodox ones, these insights can extend to other parts of the political system. To the extent that they are studying how authority is produced, or how expertise and knowledge work in governing, these insights can extend even to areas that political scientists have largely ignored–like the Fed, another powerful, unelected institution that doesn’t lead to the same sort of hand wringing over the countermajoritarian difficulty that we see in the politics (and scholarship) of the Court.  Theories of how law as a legitimating rhetoric works would apply to (and be able to draw on research on) other rhetorics like democracy, national security, or economics.  These sort of questions would be truly general (if not in the cross-case covariation way).  And they would reconnect the study of the Supreme Court with the study of other courts, and other legal actors, thereby considerably broadening the lens of the subfield.  But even for those who are doing this sort of work, the idea of the decision tends to interfere with really getting to these questions.  Moving forward requires breaking completely with the idea of the decision, the idea of judicial as an analytic category, the overarching focus on constitutional decisions of the U.S. Supreme Court, and the larger political system framework in which all this is embedded.

* The point about decisions being efficacious is admittedly odd. Political scientists have long known and studied how decisions aren’t necessarily followed, yet that knowledge hasn’t really penetrated the study of decisions, which operates as if formal decisions (and only formal decisions) always have a significant impact.  One you acknowledge that they don’t, than judges (if they care about consequences) would need to worry about how their decisions would be received – not just whether they would be formally overruled – but this is largely ignored.