The “Post-Attitudinal Moment”: Judicial Policymaking Through the Lens of New Institutionalism

Abstract

Lee Epstein and Jack Knight, The Choices Justices Make. Washington, DC: Congressional Quarterly Press, 1998. Pp. xviii + 200. $24.95 paper. Malcolm M. Feeley and Edward L. Rubin, Judicial Policy Making and the Modern State: How the Courts Reformed America's Prisons. New York: Cambridge University Press, 1998. Pp. xv + 490. $74.95 cloth; $24.95 paper. In the last several decades, the view that American judges are policymakers has become all but axiomatic among political scientists. The dominance of this view stems from C. Herman Pritchett's publication of The Roosevelt Court (1948), in which he argued convincingly that Supreme Court Justices were motivated primarily by their own policy preferences. Many political scientists were further swayed by Segal and Spaeth's publication of The Supreme Court and the Attitudinal Model (1993), in which they offered powerful empirical support for Pritchett's contention that the legal rulings of the Supreme Court could be predicted on the basis of the Justices' personal policy preferences. Despite the dominance of this view among political scientists, the legal profession and the legal academy have never quite accepted this characterization of judicial behavior. Although the political scientists piled up more and more empirical support for their claim that judges are primarily policymakers, legal scholars continued to maintain that judicial decisionmaking should not and, in fact, did not consist primarily of judges acting to maximize their own policy preferences but was instead highly constrained by an adherence to legal precedent. For many of us (especially those of us in the social sciences), the difference of opinion between the two camps seemed reducible to a classic conflict between and ought, with the political scientists describing the is of empirical reality and the legal scholars philosophizing about how things ought to be. A few years ago, however, some political scientists began to call for public law scholarship that might go some way toward bridging the gap between the schools of thought. Among the most influential of these voices was Rogers Smith, who argued in 1988 for a new institutionalist turn in public law scholarship, by which he meant that political scientists should spend more energy understanding how factors-such as the limitations of judicial office and the constraints of precedent-might inhibit judicial policymaking. More recently, two prominent public law scholars operating from relatively opposite sides of the methodological spectrum wrote separately to announce and encourage a post-attitudinal turn in judicial behavior scholarship (Gillman 1996-97; Baum 1997).1 The Choices Justices Make (1998) by Lee Epstein and Jack Knight and Judicial Policy Making and the Modern State (1998) by Malcolm M. Feeley and Edward L. Rubin are two excellent examples of this post-attitudinal moment. Although grounded in very different methodological perspectives and focusing on the nature of judicial behavior in different settings, both books examine how institutional structures shape and constrain judicial policymaking. Moreover, in both books the message clear: If we want to understand judicial behavior-and especially the judiciary's role in shaping public policy-we need to look much further than judicial attitudes. In The Choices Justices Make, Epstein and Knight start with the observation that Justices on the Supreme Court change their minds or join opinions that do not reflect their personal policy preferences in more than half of all cases that they hear. As an example of this type of behavior, Epstein and Knight tell the story of Craig v. Boren (1976), in which the Supreme Court adopted the heightened scrutiny standard for sex discrimination. At the initial conference vote on Craig v. Boren, the Justices were deeply divided on issues of both standing and the appropriate constitutional standard to apply. …