Toward a Strategic Revolution in Judicial Politics: A Look Back, A Look Ahead

Abstract

As papers presented at recent disciplinary conferences and articles published in major political science journals reveal, the field of judicial politics is undergoing a sea change. Variants of the social-psychological paradigm, which have long dominated thinking about law and courts, are giving way to approaches grounded in assumptions in rationality. More to the point, ever-growing numbers of scholars are now invoking the strategic account to understand judicial politics. In what follows, we investigate this "strategic revolution." We begin by providing an intellectual history of the field, with special emphasis on why judicial specialists resisted strategic analysis for so long and why they are now (re)turning to it in ever-increasing numbers. Next, we consider the ways that analysts have begun to put the strategic account to work. This is an important task, for debates are already emerging over the "best" way to invoke the account to study judicial politics. We take the position that there is no one "right" way but rather four different approaches-all of which have the potential to provide us with important insights into law and courts.

A Strategic Court and National Security: Comparative Lessons from the Israeli Case

“…As the leader of the Court, the PC manages the Court's relations with the counterpart branches, while maximizing the Court's utility. As a rational player, the PC would lead the Court to rule as close as possible to his or her ideal point (Epstein and Knight 1998). Hence the convergence point should be in a narrow range around PC.…”

“…First is the scholarship concerning the challenges of judging in times of war. 3 Second is the strategic judicial behavior literature (Epstein and Knight 1998). Th is article explores the strategic aspects of decision making in national security cases, with the goals of both improving our understanding of the Israeli case and inductively draw broader conclusions (Epstein 1999).…”

“…Finally, justices are rational. Th ey do their best, within institutional and collegial constraints, to set policy at their ideal point (Epstein and Knight 1998).…”

“…Th e fi rst deals with strategic aspects of the behavior of the Court as a whole. Although more than one defi nition of strategic court behavior appears in the literature (Epstein and Knight 2000;Maltzman et al 2000;Murphy 1964;Segal and Spaeth 2002), most involve anticipation of future infl uences of extralegal factors. Th us, this article addresses the nature of extralegal variables, 2 whose systematic infl uence on the Court amounts to strategic judicial decision making (Bailey and Maltzman 2006;Barzilai 2004;Eskridge 1991).…”

“…Th us, this article addresses the nature of extralegal variables, 2 whose systematic infl uence on the Court amounts to strategic judicial decision making (Bailey and Maltzman 2006;Barzilai 2004;Eskridge 1991). Yet rational agents act to maximize individual utility within institutional constraints (Epstein and Knight 1998). Th us, short of internal institutions that induce individual justices to cooperate, a coherent strategy of the Court as a whole is unsustainable.…”