Notes on a Theory…

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Posts Tagged ‘formalism

Joseph Tanenhaus on Judicial Decisions and Political Science

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In my investigation of how scholars of judicial politics adopted the decision as the core concept of the thing to be explained, part of my argument has been that this wasn’t unique to the behavioralists, but was true of ‘traditionalists’ as well.  Joseph Tanenhaus, a participant in this conflict, agrees, in his Journal of Politics article “Supreme Court Attitudes Toward Federal Administrative Agencies” (1960). It’s easy to get distracted by the dispute between quantitative and qualitative approaches, but there is more here than that.

In the current controversy over the suitability of quantitative methods for the study of appellate-court behavior, there is a tendency to overlook a rather important similarity among the majority of contenders on both sides. Most contemporary analysts of appellate-court decisions, whether they be lower-court judges, practicing lawyers, journalists, professors of law, or political scientists, tend to comb discrete decisions in a search for uniformities and inconsistencies [my emphasis]. However much their motives may vary, analysts of both schools strive to generalize about phenomena which are, in some ways, unique. Utilizing the techniques it considers most apposite, each group collects and classifies data which it hopes to cast into formularies characterizing the behavior of a court and its individual members.

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Written by David Kaib

May 11, 2013 at 4:12 pm

Anxiously Waiting the ACA Ruling

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One of the things I’ve been emphasizing lately is how the overwhelming focus on formal decisions, in both political science and non-academic political discourse, distracts us from much of what’s going on.  That’s certainly true with the much anticipated ACA ruling from the Supreme Court.

As a general rule, there is an inverse relationship between the amount of attention something gets and the amount of leverage regular people have over it.  The presidential election is an obvious example, but this decision may be the best example.  We don’t have much leverage over the Court, but we certainly don’t have any at the moment. The Court has already made its decision. We’re simply waiting for them to announce it.

Whatever happened, knowing the result within the first few seconds doesn’t change anything. And what’s more, we won’t know what’s going to happen even when the decision gets announced and we have time to digest it (no doubt there will be all sorts of misinformation initially). Without suggesting that the decision is inconsequential, it’s important to understand that it’s impact depends entire on how people react.  Decisions are not self-executing.

Here’s what we know: the right has been mobilized on this since long before the ACA was written.  They didn’t accept defeat when it passed, they just kept on fighting. The law requires states, the executive branch, insurance companies, and Congress to do things ot implement it. Some of these have already happened, some have not.  This process isn’t scheduled to be completed until after the end of the next presidential term.

The left, on the other hand, wasn’t mobilized for the most part. It was divided over what to push for.  The White House pressured those who sought to pressure recalcitrant legislators to stop doing so.  When the process moved to the states, a few states saw pushes to implement it in strong ways.  But in many places that didn’t happen. The strategy from elite Democrats was to craft an agreement in Washington DC, not to engage the public, which meant operating from a position of weakness.

So ask yourself: win, lose or draw, what’s the plan?  There is talk about pushing single payer if the Court strikes the ACA down, but how? How many Democrats in office would support that?  And it the Court upholds it, it doesn’t mean the law is safe.

No matter what, the outcomes won’t be decided only by the judges. It depends on how those off the Court react. Everyone is anxiously awaiting the ruling.  But are they ready for what is to follow?

Written by David Kaib

June 28, 2012 at 12:03 am

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