Once More Unto the Breach: PostBehavioralist Approaches to Judicial Politics

Abstract

The field of "public law" in political science is somewhat ill defined. Its practitioners range from political theorists interested in the normative underpinnings of the law to statisticians interested in the correlates of judicial voting. The output of the Supreme Court, however, looms large on the landscape for many approaches to the field. In the first decades of the century, political scientists were unlikely to focus specifically on the explanations for the Court's decisions but were more likely to be interested in a broad range of issues related to the courts and the law. Since the "behavioral revolution" that swept the social sciences in the 1950s, however, judicial decision making has been at the core of the field. Over the past several decades, substantial progress has been made in identifying patterns of judicial voting behavior and the determinants of Court decisions. That progress, though real, has also been narrow. The scholarly focus has been on individual justices and how they cast their votes, leaving a great deal of the judicial process relatively unexplored.

1 Motivation and Judicial Behavior: Expanding the Scope of Inquiry

“…The view that judges give some weight to legal considerations is incorporated into a theoretical approach to the study of politics that has been labeled historical institutionalism. Adherents to this school, such as Howard Gillman (2001b), Mark Graber (2006), andKeith Whittington (2000), argue that judges care about making good law as well as good policy. They articulate that position primarily through qualitative analysis of the development of judicial doctrine.…”

Abordagens teóricas na pesquisa empírica sobre o poder judiciário: diálogos, pontes, híbridos

“…Esta identificação das abordagens individualistas como behavioristas também é comum entre os estudos políticos sobre o Poder Judiciário, e isto se deve, em grande medida, à quebra teórica e metodológica que o behaviorismo trouxe para o campo dos estudos judiciais (PRITCHETT, 1968;SMITH, 1988;MARCH e OLSEN, 1989;WHITTINGTON, 2000;MAVEETY, 2003b;SEGAL, 2003), dividindo-o em "estudos judiciais no direito" (Public Law) e "estudos judiciais na ciência política" (estudos do Judicial Process).…”

Party Politics or Judicial Independence? The Regime Politics Literature Hits the Law Schools

“…When a judicial decision sincerely represents the judge's “best understanding of what the law requires,” that decision should be considered “legally motivated” (ibid. ), and we should conclude otherwise only when we have “independent evidence that judges are basing decisions on considerations that are not warranted by law” (487; see also Whittington 2000, 619–28).…”