Vol. 13 No. 6 (June 2003)

THE PIONEERS OF JUDICIAL BEHAVIOR  by Nancy Maveety (editor). Ann Arbor: The University of Michigan Press. 2003. 433pp. Cloth $59.50 ISBN 0-472-06822-9.

Reviewed by Ira L. Strauber, Department of Political Science, Grinnell College. Strauber@Grinnell.edu .

THE PIONEERS OF JUDICIAL BEHAVIOR is a volume of essays about “pioneers” in the sub-field of judicial behavior and the courts that does a number of important things, and it succeeds in doing them all splendidly.   First, editor Nancy Maveety is to be highly commended for engineering an eminently readable and coherent intellectual history of some of the major contours and contests of the sub-field, from its roots in a political science of judicial behavior in the 1940s to its off-shoots in the “paradigms” of attitudinalism, models of strategic analysis, and the new institutionalism of today.  Secondly, the book has significant potential to succeed at the more ambitious task, as indicated in the “Afterword”—of laying down some tracks for scholars of competing models to follow in order to engage in the conjectures and refutations that facilitate theory-building within paradigms, if not across them.

Thirdly, Sanford Levinson’s recommendation (on the book’s back cover) that generations of graduate students might well find this volume a “must read” seems apt. Intentionally or not, the volume could serve as a remarkably accessible primer for students who want an overview of many, if not most, of the major methodological and theoretical issues of the sub-field.  The volume has the added virtue of being (apropos of the new institutionalism) a primer that puts these methodological and theoretical issues in historical, institutional, and personal contexts.  Also, graduate students, and newly minted Ph.Ds, could exploit many of the chapters for construction of hypotheses for their research agendas.  In addition, for classroom use, the essays can be mined to provide undergraduates with a solid synopsis of the methodological, theoretical, and substantive state of the sub-field.  All in all, this book is a rich resource for scholars, teachers, graduate students, and undergraduates interested in the past and present scholarship and scholars of judicial behavior.

Maveety’s “Preface” puts the past, present, and future of judicial behavior studies in the context of three questions (p.ix)—“In what sense(s) are there pioneers of judicial behavior? Are students of law and courts better or worse for the trails they blazed? Or are we still lost in an untamed wilderness of judicial decision making that can be plausibly navigated in many ways?” The answer to the first question, delineated in Maveety’s first chapter, is that there are “pioneers” to the extent that there have been scholars who introduced or refined theoretical or methodological research agendas that have proven to be crucial to the conduct of scientific inquiry (p.33), either as a norm for advocates of a specific approach or as an object of criticism.

The answer to the second question, repeated in one way or another in virtually all of the essays, is that students of law and courts benefit from a data-driven or deductive science of judicial behavior.  On the other hand, they are worse off when the drive to describe, explain, and predict judicial decision making and the role of courts excludes an appreciation of the law on its own terms (e.g., in terms of legal principles, precedent, and the like), or the history, norms, structures, and processes of courts and judicial personnel as legal (although not exclusively legal) political institutions and agents. 

The essays provide a number of answers to the third question, but the one provided by Maveety in her first chapter and “Afterword,” and by some of the essays, is that political scientists are, to a significant extent, still lost in “an untamed wilderness of judicial decision making” analysis in relation to the issue of how a data-driven or a deductive approach can encompass an understanding of the law, it norms, and its institutions and remain scientific.

In that regard, Maveety explains in the first chapter that “pioneers teach by example, both good and bad” (p.34)—by which she means that, given “the complexity in the study of judicial behavior” (p.31), those pioneers who were less doctrinaire about their work set a preferred norm for a science of judicial behavior because “the constructiveness of the ‘public law’ dialogue has been marred when adherents of one approach or another have made a claim of absoluteness” (p.33).  What is best in the work of pioneers should thus be exploited today so that a multiplicity of paths can be forged through the remainder of the wilderness “without any camp claiming privileged insight into the subject matter” (p.4).

Another accomplishment of Maveety’s “Preface” and her introductory chapter is to provide an historical and conceptual synopsis of the emergence and growth of the study of judicial behavior within the context of the development of a science of politics. To create a framework for this review, I have reduced her synopsis to three stages. In the first stage, the academic pioneers have striven for considerable theoretical breadth in their efforts to make the study of judicial behavior scientific.  In the second stage, research following in the pioneers’ wake has tended to be more concerned with integrating judicial behavior studies into a scientific discipline of politics than with further developing theoretical potential.  In this second stage, advocates of a scientific discipline of politics pursued research “on empirically testable theories and generalizing from observable variables…or better ways to deal with data problems” (p.20).  One major consequence of this research agenda was to be “agnostic to hostile” to more qualitative work concerned with processes by which “law was formed or toward the political and institutional components of lawmaking” (p.21).  We are currently in the third stage, a juncture providing various paths, which could lead scholars to alternate approaches to a synthesis of, if not necessarily reconciliation between, quantitative (attitudinal and strategic) and qualitative (legal, institutional, and historical) scholarship, even in the face of divisive theoretical and methodological disagreements among scholars. 

This frame does not encompass all that is important in this volume, but I think it is sufficiently significant to use as a thematic structure for describing each of the essays. Of course, I accept responsibility for any distortion my construction produces.

That said, Chapter Two, Lawrence Baum’s overview of C. Herman Pritchett’s work on policy-preferences, encompasses (coincidentally?) this frame but it also foreshadows a hazard that awaits contemporary scholars.  Baum’s Pritchett comes off as being somewhat at odds with himself—on one hand, he can be read as trying to balance policy preferences as the major explanatory variable with other precursors of judicial choice (e.g., qualitative factors like reading of the law, respect for precedent, deference to legislative authority, judicial role).  But, on the other hand, Baum’s Pritchett can be read as minimizing the role of qualitative factors if they were not susceptible to scientific analysis.  The first pioneer of what would become the attitudinal approach to the study of judicial behavior, Pritchett had a difficult time constructing a scientific/theoretical relationship between policy preferences and those other factors.  This difficulty has diminished the impact of his work for subsequent scholars (sufficiently so that Baum is surprised that Pritchett’s reputation continues to be strong), and it serves as an example of what awaits those seeking a synthesis between qualitative and quantitative factors today.

In Chapter 3, Jeffrey Segal explores the contributions of Glendon Schubert, the founder of the attitudinal model, offering some details of Schubert’s intellectual and methodological background that led him to game theory, bloc, and scalogram analysis.  Segal provides a thorough summary of the attitudinal model and how it has been updated both theoretically and empirically, and he explains how and why Schubert’s work was relevant to game theorists and rational choice scholars.  In Schubert’s career and the fruitful research that has followed from it, one can see the origins of the academic divide between a quantitative science of judicial behavior and studies which focus on more qualitative questions.

Chapter 4, Robert C. Bradley’s discussion of S. Sidney Ulmer’s quantitative analysis of decisional processes in terms of small group behavior, especially as it relates to the Supreme Court, revolves around advances in the use of “sophisticated models and techniques on a variety of data” (p.107).  Bradley’s Ulmer emphasizes small group dynamics, but acknowledges the importance of other influences, so “that if other factors, based in the law, ideology, or psychological motivations balanced each other out, then small group determinations could rise to the forefront in accounting for judicial decision making by an appellate court” (p.105).  Hence, Bradley suggests that Ulmer’s work foreshadows the scholarship of those who (like some advocates of the new institutionalism) emphasize structural as well as strategic factors to explain judicial behavior. For that, Ulmer’s work is very much in the spirit of the intellectually eclectic Schubert, and, while his model is more inclusive, it is no less scientific.

In Chapter 5, Sara C. Benesh assesses the pioneering work of Harold J. Spaeth, and she portrays Spaeth as the more-than-worthy heir to Schubert’s science of judicial behavior. Spaeth’s scholarship is highlighted for its virtually all-encompassing impact on the judicial behavior studies that have followed in the wake of his intellectually and emotionally vigorous promotion of the attitudinal model as, for all intents and purposes, “complete and irrefutable”(p.121). Perhaps the most durable manifestation of that vigor is Spaeth’s creation and maintenance of the US Supreme Court data base, which is one of the major resources for scientific analysis of judicial attitudes.  Spaeth is also credited with the rare feat of influencing public perceptions of the Court: the predictive power of his work is recognized as having played a significant part in conveying to the public that Justices are political actors unconstrained by such things as legal precedent.

Benesh addresses some of the strengths and weaknesses—and criticisms—of Spaeth’s work, especially in light of the intellectual and emotional energy he has devoted to sponsorship of a science of judicial behavior. Benesh seems to agree with those scholars who contend that a cost of Spaeth’s single-minded promotion of his version of a science—notwithstanding the indisputable prestige of his contributions to the study of judicial behavior—is to deepen the divide between quantitative and qualitative scholars, perhaps discouraging the search for “more sophisticated models of decision making that include jurisprudential considerations and explain even more than models that include only attitudes and the facts of the case” (p.129). Nevertheless, Benesh’s Spaeth is clearly a salutation to a remarkably talented and prolific scholar who has pursued the goals of  scientific approaches to public law.

Robert A. Carp considers the academic contributions of Joseph Tanenhaus in Chapter 6 and finds a less divisive approach to promoting a science of politics. Carp’s Tanenhaus is portrayed as “first and foremost a political scientist” (p.154) whose  advocacy of behavioralism and commitment to the techniques, methodologies, and theories of a social science were major factors in the resurgence of the public law sub-field.  Carp takes special notice of Tanenhaus’ attempts to advance the attitudinal model and public opinion studies within a comparative theoretical context, work that served as a bridge between traditional (qualitative) studies and the emerging camp of behavioralists.  In this respect, Tanenhaus is said to be like “a centrist justice on the Supreme Court [who] has greater potential to put together a winning coalition, …[and thus was] more likely to expand and unify public law scholars by his inclusive way of defining and refining the sub-field” (p.160).

Lee Epstein’s and Lynn Mather’s review of Beverly Blair Cook’s scholarship concludes Part One.  Like other pioneers, Cook is praised for promoting a more scientific conception of public law studies that also valued methodological diversity and the goal deploying methods that are appropriate to each specific set of research questions. Indeed, Cook’s work cut an unusually wide analytical swath, including such issues as public opinion and trial courts, the comparison of judicial politics with legislative and administrative processes, the role of political and legal culture in shaping decision making, attitudinal studies, and gender studies that “pushed the scholarly boundaries of the attitudinal model by seeking to understand the relationships between historical factors, institutional norms, judicial policy preferences, and judicial behavior” (p.186).  Readers are directed to the theoretical, substantive, and methodological lessons embedded in Cook’s research, especially her original socialization studies, as a path to work that links institutional norms and judicial behavior (p.178).

Part Two is devoted to those pioneers who sought to establish the place of “formal models of the strategic situations and institutional constraints within which judges seek to express their policy preferences” (p.193).  Maveety introduces this part, tracing the development of game theory and early formal models of positive political theory from their roots in social-psychology and discussing how small group theory and leadership models shaped an understanding of “collegial choice, institutional rule, and role orientation variables affecting judicial decisions, including opinion coalition formation” (p.193).

In Chapter 8 Lee Epstein and Jack Knight assess the contributions of Walter Murphy, whose career overlapped with the pervasiveness of the attitudinal model in political science, as well as the rise, fall, and re-emergence of strategic analysis.  Murphy has held a long-term interest in doctrinal analysis, and his influence has reached a range of scholarship in judicial behavior and process, law and society, comparative constitutionalism and jurisprudence.  The authors suggest that Murphy’s impact was delayed because he was on the “wrong-side” of the debate when many political scientists were persuaded by attitudinal scholarship and the predictive power of social-psychological variables (e.g., social background/personal attributes, policy-orientation, judicial role and small group analysis), rather than by theories about rationality and strategic action with their lower predictive power.  However, Epstein and Knight suggest that, given the current resurgence of strategic analysis of judicial motivation, time is likely on his side.

Maveety and John Anthony Maltese explore the work of J. Woodford Howard in Chapter 9.  Howard’s analytical approach to decision strategies goes even further in blending quantitative and qualitative analysis. Howard, like Murphy, is a traditional public law scholar (see e.g., Howard’s judicial biography scholarship), whose scientific work on group behavior (and his seminal work on decision fluidity, in particular) has encouraged subsequent work that follows a path toward a more “synthetic relationship between explanatory variables” (p.231).  In addition, Howard’s research, like some of the work of the new institutionalism, “avoids the ideological reductionism and oversimplifications of judicial behavior” (p.242).

According to Thomas G. Walker (Chapter 10), David Danielski’s work on intra-Court influences and opinion assignment (and bargaining and negotiation, more generally) was a precursor to more explicitly rational choice techniques assessing strategic analysis and decision making.  Danielski’s work on Supreme Court appointments, Walker notes, created a bridge between socio-psychological theories and later blossoming of rational choice models.  Walker characterizes Danielski’s contributions as “firsts,” and associates them with the work of Murphy and Howard, all of whom maintained an interest in qualitative data.  Danielski is a scholar of the first-rank in the march toward a science of judicial behavior and strategic analysis and who has significantly influenced debates about the need for multidimensionality in our analytic models and drawing upon research from different schools of thought.

Part Two concludes with Chapter 11. Saul Brenner presents an overview of David Rhode’s early work developing a rational choice approach, within the historical context of the attitudinal model’s dominance among judicial scholars—roughly from the ‘70s until the late ‘80s.  According to Brenner, “Rhode’s main contribution is that he raised a number of important questions that became the agenda for judicial scholars” (p.271) at a time when rational choice was in disfavor and provided a stimulus for its resurgence. Brenner’s richly layered analysis of the strengths and weaknesses of Rhode’s work skillfully demonstrates its potential to yield a bounty of research agendas for today’s strategic analysis advocates.

Part Three considers the pioneers of various versions of the new institutionalism, the historical-institutionalist paradigm. In her introduction to this section, Maveety describes the varied research in this camp as analyses which focus on how institutional norms, powers, and preferences (of actors) shape, and are in turned shaped by, judicial behavior (p.285).  (Sue Davis provides an alternative, but compatible, description at p.318).  Maveety suggests that some institutionalism scholarship might provide wider avenues for scientific explanations and opportunities to reclaim “the judicial in judicial studies” (p.287), in contrast to narrower versions of political scientific explanations of judicial behavior.  However, Maveety also cautions that some research in the paradigm tends toward a “certain mushiness and flabby holism” (ouch!) that could “make impossible the collection and pursuit of empirical knowledge” (p.288).

Cornell W. Clayton’s Chapter 12, on Edward S. Corwin, resonates with Maveety’s suggestion and her warning.  Clayton observes that Corwin conceived a political science that distinguishes (some versions of) historical-institutional scholarship from the work of the attitudinal and strategic paradigms.  Corwin, (trained as an historian) pursued a political science informed by social and political thought, and he was skeptical of quantitative methods’ usefulness in describing and explaining judicial motivations.  Clayton argues that Corwin’s receptivity to social and political thought was a strength, but the credibility of his vision was undermined by his strong objections to a science of politics. Indeed, Clayton notes that Corwin’s strong reservations about quantitative methods still cast a shadow over historical-institutionalist research, even though some of today’s scholars may not share (altogether) Corwin’s analytical biases.  Consequently, Corwin’s work is often viewed as representative of the “central problem of how social scientists can retain scientific status for themselves and their subjects while acting as arbiters of social goals and values” (p.309).

Alpheus Thomas Mason’s work is the focus of Chapter 13.  In addition to judicial biography, Mason pioneered the analysis of how social-political-economic influences are observable in Supreme Court decisions and of how intra-Court interaction affects Justices’ votes and opinions.  Sue Davis understands Mason’s scholarship as laying important groundwork for subsequent research that analyzes institutional arrangements and processes as salient factors in the judicial behavior equation.   According to Davis, Corwin’s judicial biographies teach the lesson that judicial behavior cannot “be explained solely with reference to instrumental rational self-interest” (p.318).  It is this lesson that Davis finds central to the development of the new institutionalism that seeks to identify and clarify linkages between institutional factors and judicial decision making.

The scholarship of Robert G. McCloskey provides Howard Gillman the opportunity to address the forerunner of a different strand of new institutionalism.  In Chapter 14, Gillman credits McCloskey with constructing a normative and empirical approach to analyzing the Supreme Court within the structural context of American politics.  McCloskey’s scholarship laid the groundwork for complex Court histories taking in a range of factors, such as conflicts of power and interest, exercise of judicial power, and judicial authority and legitimacy understood as a function of the Court’s institutional characteristics and/or its dependence upon support from elite constituencies.   Similar to Clayton’s Corwin, Gillman’s McCloskey was indifferent to or disliked (p.350) more scientific modes of analysis, which (also like Corwin) provided ample reasons for some colleagues to dismiss McCloskey’s institutionalism as the product of “a stubborn traditionalist who was attached to subjective analysis rather than verifiable, empirical analysis” (p.350).  Gillman does not try to discount such criticisms but suggests that, despite them, McCloskey’s work should be valued in order “to keep alive a style of inquiry that explores aspects of judicial politics that are too often missed by our more positivistic colleagues” (p.352) who favor attitudinal or strategic analysis.

In Chapter 15, David Adamany and Stephen Meinhold consider the extraordinary story of the five-decade impact of Robert Dahl’s “Decision Making in a Democracy: the Supreme Court as a National Policy Maker” (1957).  Interestingly, the authors point out that the article was something of an off-hand effort by Dahl—who is not a scholar of judicial behavior.  Yet Dahl’s article has had unusually strong influence on the study of the Supreme Court, judicial review, “the context of regime politics, or the agendas of ruling coalitions” (p.364), and mechanisms of legitimizing governmental policy.  Adamany and Meinhold explain this influence via a summary of the empirical challenges and confirmations of Dahl’s work, as well as the ancillary issues it raised.  The authors conclude that, despite a shift away from the political and structural analysis that shaped it, the qualitative and quantitative propositions in Dahl’s 1957 article continue to generate methodological and theoretical inquiry.  Indeed, subsequent studies that apply Dahl’s notions have informed the work of new institutionalists and more empirically-minded political scientists who take institutional variables seriously.

In the final chapter of Part 3, Herbert M. Kritzer assesses the career of Martin Shapiro.  Kritzer reads Shapiro’s work “as a bridge, perhaps the key bridge, between traditional institutional analysis of the judicial branch and the work of the new institutionalists” (p.387).  Moreover, Kritzer notes, Shapiro’s “political jurisprudence,” which focused on courts as institutions operating in the context of a larger political process and the institutional function of judicial norms, is directly implicated in theoretical approaches to judicial behavior in all three paradigms—attitudinalism, strategic choice, and new institutionalism.  But because Shapiro’s work was more heavily focused on theoretical development than on methodological deployment, and because the ethos of scientific analytics dominates graduate study, the lack of a methodological “recipe”(my term) for a political jurisprudence in Shapiro’s work has moved him aside.

Kritzer speculates about what might have been if Shapiro had worked more with data, and concludes that his scholarship would have been more influential “if [Shapiro] directly interacted with the judges and officials about whom he wrote” (p.409).  One of Kritzer’s primary messages is that students of judicial behavior should invest some of their intellectual energy to mine Shaprio’s core insights about political jurisprudence with the objective of linking them to today’s concerns with methodology, data, and scientific theory.

In addition, the Kritzer article gracefully encapsulates another of the main points that Maveety seems to articulate in assembling this collection.  Despite the conflicts over methodologies and analytical approaches, the judicial behavior glass is half-full.  The pioneering scholars, and those that have followed them, have produced a body of research that can be fruitfully cross-fertilized to yield a bumper crop of social scientific ideas and competing views—if only, of course, scholars of judicial behavior should want to pursue that process.

As for last words, as indicated in my introductory remarks, this review tells only one story about this compilation, and even then, it does not do justice to the nuances, subtle insights, qualifications, and complications that the individual authors contributed to the whole. The fact that this volume can be read to tell other stories is to the credit of the authors and to Maveety’s judiciousness in choosing them.  There will and should be quibbles here and there with the way specific authors have characterized their respective pioneers and their scholarship.  But, at the risk of appearing to be an insufficiently critical reviewer, I recommend that readers should find no issue with the assertion that this is a gem of a book.

REFERENCES:

Dahl, Robert. 1957. "Decision Making in a Democracy: The Supreme Court as a National Policy Maker," 6 JOURNAL OF PUBLIC LAW 279-95.

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Copyright 2003 by the author, Ira L. Strauber.