The Constrained Court: Law, Politics, and the Decisions Justices Make

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9780691151052: The Constrained Court: Law, Politics, and the Decisions Justices Make


How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? The Constrained Court combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court.


Michael Bailey and Forrest Maltzman show how two types of constraints have influenced the decision making of the modern Court. First, Bailey and Maltzman document that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The authors find considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, Bailey and Maltzman show that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president.



The Constrained Court shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.


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From the Author:

Has Skepticism about the Court Gone Too Far?

When asked to comment on Scalia's jurisprudence, Richard Posner recently said "I don' think he or anyone can derive results in difficult, emotionally charged cases from the constitutional text."

When former future President Rick Perry turned his attention to the court, he wrote that it "adheres to the Constitution in appearance only and as a matter of necessity, finding in it or in previous case law the single nugget around which the court can marginally justify its policy choice to keep up the pretense of actually caring one iota about the Constitution in the first place."


Add these to the pile of support for Segal and Spaeth's attitudinal model which posits justices simply vote their unconstrained policy preferences.


But has skepticism about law on the Court gone too far? Are justices really unconstrained? In The Constrained Court, Forrest Maltzman and I argue that justices are in fact constrained by the law and by other political actors. These are constraints, not straightjackets. Individual justices are affected differently by them, but they are real and to ignore them is to misunderstand the role the Court plays in the U.S. political system.


The first task is to figure out how to separate the legal wheat from rhetorical chaff that covers underlying policy motivations.  Sometimes efforts to determine who does and doesn't follow the law descend into parody: We follow the law; they don't.  (Here's Senator Cornyn at Elena Kagan's confirmation hearings discussing McDonald v. City of Chicago: "The five justices who voted to apply the Second Amendment to the Chicago gun ordinance relied on history and precedent. On the other hand, the four justices who voted not to apply the Second Amendment instead relied heavily on public policy arguments, the kind that you would find debated in the halls of Congress.")


Our approach is not to parse statements but to use politicians to identify political aspects of Court cases and then to see if justices part ways from their political co-ideologues in legally predictable ways.  Consider abortion. After Roe v. Wade, precedent clearly implied a constitutionally protected right to abortion. Since politicians talk (and talk and talk...) about abortion, it's fairly easy to identify where most come down on abortion as a policy issue. We can then use bells-and-whistles measurement tools of contemporary political science to assess which politicians justices usually line up with: Scalia ideologically resembles Senator Kyl, Ginsburg ideologically resembles Senator Durbin and so forth. If we find justices vote like their co-ideologues in Congress, the attitudinal model is validated. If we find justices part ways from their political co-ideologues to vote more liberally when precedent is liberal and more conservatively when precedent is conservative, we have identified legal effects.

This debate reverberates throughout the policy and scholarly worlds. For the Court, its legitimacy depends in no small measure on the perception that justices are impartial umpires following "law all the way down". In the academy, there has been a traditional stand-off between political scientists skeptical of the law and lawyers skeptical of political scientists.

Analyzing Supreme Court voting from the 1950s onward, we find that virtually every justice is influenced by at least one legal influence (and it's only the ones for which we have very little data - Jackson, Vinson and Fortas --  that we can't say this). Law school faculty across the country can breathe a sigh of relief - law matters even, heaven forbid, at the highest court of the land.

We do not presume to be able to assess all legal factors, but we do get at several.  Every justice appointed since Burger has been influenced by precedent except for Thomas, Scalia and Blackmun (our data precede Sotomayor and Kagan's accession to the bench so we can't assess them). Justices in the 1950s deferred to Congress even when it produced policies they did not agree with, a characteristic of that has become a bit of a quaint historicism as modern justices are uniformly uninfluenced by this value.

What explains the variation in these legal values? It's beyond the scope of this summary, but we spend a full chapter trying to unpack whether it is previous legal experience or some kind of meta-politics in which the political trends of the day affect which legal values justices hold which, in turn, do in fact constrain justices to at times vote against their policy preferences.

Of course, law is not the only possible constraint on justices. One of the major intellectual contributions of contemporary political science has been to suggest and develop the manner in which Congress and the president could constrain the Court (see here, here and here). It is not a simple account whereby the Court always does what these other actors want, but a highly contextual one in which the Court is only constrained when it is outside the range of what Congress and the president desire. 

We again find constraints on justices. Many are strategic in the sense that their voting differs systematically depending on the political context.  We also find that while it is the case - as explained above - that justices from the contemporary court tend not to defer to Congress as a general principle, these justices do defer for strategic, practical reasons. That is, when the political system gives them the flexibility, modern justices are more willing to buck Congress; but when the political branches can more credibly threaten to punish the Court, these modern justices are more likely to cave than their post-war forebears.

The Supreme Court is a political body and no reasonable analyst can deny it. However, it is also a legal entity embedded in a larger political system and it would be equally unreasonable to deny that.

[From the American Constitution Society's BookTalk feature (acslaw.org/acsblog/has-skepticism-about-the-court-gone-too-far). ]

For a discussion of how the book applies to the Supreme Court's consideration of the Affordable Care Act ("ObamaCare"), see themonkeycage.org/blog/2011/11/21/forecasting-the-supreme-court-vote-on-obamacare/.

From the Back Cover:


"Do Supreme Court justices base their decisions on law or politics? Using clever measurement strategies and relentless coding of cases, Bailey and Maltzman answer this question: both. They are to be commended for careful political science that also takes the idea of law seriously. This book is a must-read for scholars and students who care about what motivates the justices of the Supreme Court."--Barry Friedman, New York University


"Using innovative methods, Bailey and Maltzman address fundamental issues about the forces that shape Supreme Court decisions. The book's findings are striking, and the authors' discussions of issues and findings are interesting and insightful. This is one of the best and most important books yet written about judicial behavior."--Lawrence Baum, Ohio State University


"This is one of a small number of the finest books I have read on judicial politics. It uses cutting-edge methods and smart arguments to bring an impressive and sophisticated perspective on political behavior to the study of the Supreme Court. Debunking the most extreme views of political scientists, it will attract a lot of attention."--Gregory Caldeira, Ohio State University


"The Constrained Court marks a major contribution to our understanding of the behavior of the U.S. Supreme Court. Providing important methodological innovations and previously unexplored findings, the authors examine novel ways in which external constraints limit the Court. This book genuinely breaks new ground."--Kevin T. McGuire, University of North Carolina, Chapel Hill


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Book Description Princeton University Press, United States, 2011. Paperback. Book Condition: New. 231 x 155 mm. Language: English . Brand New Book. How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? The Constrained Court combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. Michael Bailey and Forrest Maltzman show how two types of constraints have influenced the decision making of the modern Court. First, Bailey and Maltzman document that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The authors find considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, Bailey and Maltzman show that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. The Constrained Court shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order. Bookseller Inventory # AAH9780691151052

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Book Description Princeton University Press, United States, 2011. Paperback. Book Condition: New. 231 x 155 mm. Language: English . Brand New Book. How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? The Constrained Court combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. Michael Bailey and Forrest Maltzman show how two types of constraints have influenced the decision making of the modern Court. First, Bailey and Maltzman document that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The authors find considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, Bailey and Maltzman show that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. The Constrained Court shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order. Bookseller Inventory # AAH9780691151052

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Book Description Princeton University Press. Paperback. Book Condition: new. BRAND NEW, The Constrained Court: Law, Politics, and the Decisions Justices Make, Michael A. Bailey, Forrest Maltzman, How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? "The Constrained Court" combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. Michael Bailey and Forrest Maltzman show how two types of constraints have influenced the decision making of the modern Court. First, Bailey and Maltzman document that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The authors find considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, Bailey and Maltzman show that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. "The Constrained Court" shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order. Bookseller Inventory # B9780691151052

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