84 Tex. L. Rev. 257

                                         Texas Law Review

                                          December, 2005

                                              Article

                                  THE POLITICS OF JUDICIAL REVIEW

                                         Barry Friedmana1

                  Copyright (c) 2005 Texas Law Review Association; Barry Friedman

                                          I. Introduction

In the legal academy, scholarship about judicial review is predominantly normative. It is largely
about how judges should decide cases1 and what posture they ought to take toward the work of other
institutions.2 This normative focus on the behavior of judges is common irrespective of whether the
intended audience is other academics, political officials, or judges themselves.

*258 Outside the legal academy, the interest in how judges behave is more “positive.” That is to
say, the focus in other disciplines is not so much on how judges should behave, as on how they do
and why.3 Positive theorists ask what motivates judges to decide cases as they do and what forces
are likely to influence judges’ decisions.

The normative and positive projects have traveled on largely separate tracks, in part because the
forces positive theorists identify as influencing judges commonly are political ones. “Politics” is
used here in a fairly capacious sense, referring to any influences on a judge’s resolution of a
case other than an independent judgment of the law as applied to the facts before the court.4 But
the political forces identified by positive scholars are often quite base: Many positive theorists
suggest that judicial ideology plays a significant role in how judges decide cases5 and that judges
respond to pressures from other political actors.6 Positive scholars believe these forces play a
large hand in shaping the content of the law, especially constitutional law.

Normative theorists resist the positive project, in large part because political influence of this
sort is anathema to prevailing conceptions regarding judicial review.7 Throughout history, and
particularly in the last century, the dominant strain of thought in the legal academy has insisted
upon theories of judicial review that maintain the separation of constitutional law from politics.8
It is difficult to overstate the force of this ideal, which animates some of our most cherished
conceptions-- such as judicial independence--and gives rise to some of our most enduring
puzzles--such as reconciling the role of a constitutional judge with the practice of democracy.9
Constitutional theory is all about cabining law from politics, both to ensure that judges are
constrained by law (and thus do not simply vote their own values) and to prevent politics from
influencing law.10

*259 Despite signs that the project of positive scholars is finally finding a warmer reception in
the legal academy, the integration of constitutional law and politics remains quite tentative.11 To
be sure, some early, important work in the application of positive political theory to legal
institutions actually had root in the legal academy,12 and there is a growing niche of legal
academics producing quite interesting scholarship at the juncture of constitutional law and
positive theory.13 Yet much, if not most, normative constitutional theory--and certainly theory
about judicial review--still fails to come to grips with the lessons of positive scholarship.14 Old
habits die hard.

The thesis of this Article is that normative constitutional theory about judicial review will
remain impoverished until it fully embraces the positive project. In pursuing the ideal, normative
theorists typically sideline the sort of political influences discussed here.15 For example, in
writing about what *260 might be normative theory’s most famous constitutional judge, Hercules,
Ronald Dworkin recognizes the very practical problems the real-world judge faces, such as the need
to obtain the agreement of other colleagues on the Supreme Court or to ensure the implementation of
judicial decrees by other governmental actors.16 Yet, Dworkin expressly puts these problems to one
side so that Hercules will be “free to concentrate on the issues of principle.”17

Granting considerations of principle all the due they properly are owed, it nonetheless is the case
that many of the institutional constraints Hercules faces are fixed aspects of our constitutional
system that Hercules himself has no choice but to heed. The Constitution does grant Hercules a
certain degree of independence,18 but it also embeds him in politics. This is no accident: The
Constitution represents a deliberate balance between, on the one hand, separation and independence
of the branches and, on the other, accountability and the idea of checks and balances.19 Hamilton,
the nation’s first advocate for judicial review, correctly understood that the judiciary is “the
least dangerous” branch, readily susceptible to attacks from the other branches and dependent on
the “executive arm even for the efficacy of its judgments.”20 To the extent the judiciary appears
more powerful today than it did in Hamilton’s time, this itself is a function of broad popular
support for judicial review--a political constituency of the most profound kind.21

That Hercules is a judge and not just any other political actor is a fact of enormous significance;
still, Hercules must do his judging in a political world. Although he enjoys life tenure, he was
appointed through a political *261 process, and his confirmation did not scrub him of the ideology
he possessed before he ascended to the bench. Further, Hercules cannot act alone. He requires the
consent of his colleagues, who may not always agree with him, making compromise of his views a
necessity.22 Even when his colleagues agree, Hercules’ court was not given the means to enforce its
own decrees. That court must obtain compliance from political actors,23 as well as from the lower
courts that are subservient to it,24 again necessitating some calculation by Hercules about how
those institutions will respond. Ultimately, Hercules’ power rests on the willingness of the
public, and the political actors accountable to it, to respect his independence and the decrees of
his court. Any account of Hercules’ proper role falls short if it does not take account of these
hard-wired constraints.25 “Is does not imply ought, but ought implies can.”26

Normative theory about judicial review limits its own possibilities and worth by failing to come to
grips with what positive scholarship teaches about the political environment in which
constitutional judges act and about the constraints they necessarily face. In part, the claim here
is that existing normative theories about judicial review are, and will remain, inadequate to the
extent they continue to fail to take account of the lessons of positive scholarship. The argument
reaches far beyond this, however, to the very warp and woof of constitutional judging.27 Seen
through the lens of a *262 positive approach, numerous structural doctrines and common practices
that form the everyday work of constitutional judges--things like stare decisis,28 the appropriate
deference to congressional judgments,29 the practice of issuing concurrences and dissents on
collegial courts,30 and the standards of review of lower court decisions31--all raise provocative
normative questions that at present receive inadequate attention because of the failure to consider
the political milieu of the constitutional judge. Positive scholarship illuminates rich veins even
in the well-mined field of traditional normative and doctrinal scholarship.

Two caveats are in order. First, the focus here on positive scholarship runs the risk of creating
the impression that such scholarship itself is flawless. It would be odd if this were true; no body
of scholarship is perfect. Some of the shortcomings and difficulties with positive scholarship are
discussed here,32 but those difficulties provide no basis for ignoring the endeavor altogether.
Second, one of the most significant difficulties with some positive scholarship is its failure to
take law and legal institutions seriously. Law is unique in its own ways, and positive scholars
shortchange their own work when they fail to see or acknowledge this. Defining precisely how law
differs from politics (and when it matters) ought to be the central task of legal and positive
scholars both. This, however, is a project that cannot be undertaken by isolating law from
politics.33

This Article proceeds in three parts. Part II is a historical sketch of the roots of normative
theory’s insistence on the separation of law and politics. For reasons of history as much as of
theory, by the end of the twentieth century predominant thought had come to believe that law and
politics must inhabit separate realms. Only very recently have scholars begun to doubt the
possibility, or even the sense, of this separation; but they have yet to find a comfortable
accommodation of the two. It is the right project, nonetheless, and all that follows is designed to
aid in its pursuit.

Part III is the heart of this project--an analytic tour of how the positive understanding of
judicial behavior bears upon the practice of judicial review, making clear the constraints that
face constitutional judges and how these constraints bear upon theories of judicial review and
important aspects of constitutional practice. This Part first examines “attitudinal” claims that
judges decide cases based solely on ideology. In particular, attitudinalists *263 deny the
constraining influence of law.34 Within political science, the notion of ideologically freewheeling
judges is challenged by “neo-institutionalists.”35 Most institutionalists believe the restraint on
judges comes not so much from law itself as from the other institutions of government with which
constitutional judges necessarily interact.36 These are precisely the institutions of which
normative scholarship fails to take sufficient account.

The balance of Part III examines in detail the concentric circles of influence and constraint with
which a constitutional judge must contend: strategic interaction with other judges on a collegial
court, the pressures imposed by judges on the judicial hierarchy’s lower rungs who have their own
views of how things should be, interbranch struggles over legal outcomes with significant policy
implications, and popular opinion regarding judicial outcomes and the practice of judicial review.
At each step of the way, the discussion confronts normative aspiration with positive reality,
suggesting that normative thinking must give way, or at least must develop a more thorough and
nuanced understanding of judicial review that takes account of positive theory’s lessons. Equally
important, Part III highlights how positive studies open up unmined and important directions for
normative legal theorists to pursue.

Part IV suggests that normative theorists have spent too much time spinning broad theories
regarding the role of judicial review and have thus neglected numerous important, normatively
complex, and often mutable aspects of how the practice of constitutional judging should actually
operate. At the least (as many positive readers of this piece pointed out), legal scholars should
pursue their normative projects conscious of the fact that their work itself is but one of the
political influences upon judges. Normative scholars should embrace this realization and
forthrightly see their work as ideological prescriptions for constitutional change. However, they
also should branch out in new directions and pursue the many neglected questions of constitutional
process identified in Part III. Even the doctrinal study of constitutional law is reinvigorated
once the positive scholarship is taken into account. These are all things constitutional scholars
might do; Part IV is intended only to be suggestive. The broader point--the central one of this
Article--is that constitutional theory must take politics into account and that it will be better
for doing so.

                  *264 II. Judicial Review and the Separation of Law and Politics

This Part examines how the necessity of separating law from politics became a central tenet of
constitutional theory. By explaining how we have arrived at the present, history opens space for
understanding our world differently.37 What began as a rhetorical response by opponents of
particular Supreme Court decisions has become a fixture of theories of judicial review. This
instinct is not wrong: There clearly is a longstanding and central societal belief that law and
politics are not the same and should not be considered as such. At the same time, however, history
suggests that a strict separation of law and politics is--and always has been--implausible.

Throughout American history, views about judicial review have been shaped more by political
responses to judicial decisions in heated controversies than by any jurisprudential theory of what
it means to live under a constitution. This was true during the first great clash of will between
the courts and the “political” branches following the election of 1800. All the famous partisan
skirmishes of that era--the Marbury litigation, the repeal of the Circuit Judges Act, and the
impeachment of Samuel Chase--were motivated by the Federalist party’s withdrawal to the judiciary
and the immediate political challenge this withdrawal posed to Republican policy.38 Nonetheless,
these disputes played out as debates about judicial independence, popular accountability, and the
separation of politics and law.39

*265 As notions of judicial supremacy slowly took hold during the nation’s first century, the
law-politics distinction featured regularly in clashes over the role of the judiciary.40 By the
time of the Civil War, many were prepared to recognize the legitimacy of some form of judicial
review.41 But heard with increasing frequency was the complaint that judges were not confining
themselves to “law” and were also taking up questions by their nature “political.”42

The early part of the twentieth century saw frequent denunciation of judges for straying beyond the
proper bounds of law.43 The primary basis for attack was that courts were interfering with the
proper voice of authority in a democracy, that of the people.44 Defenders of the judiciary
protested that the courts were simply doing their jobs and enforcing what fundamental law (the
Constitution) required.45 The disputes of that period came to a head famously in 1937 when the
President of the United States had had enough of judicial meddling with his political agenda, no
matter what the asserted justification, and sought to subjugate judicial power to politics by
packing *266 the judiciary with sympathetic judges.46 As history so commonly observes, he lost the
battle over judicial independence but won the war over constitutional meaning.47

In the aftermath of Roosevelt’s attempt to pack the Supreme Court, legal scholars logically might
have begun to work through how law and politics are-- or should be--integrated. Constitutional law
proceeded to change rapidly after 1937, and it did so in the minds of many precisely because of
actions taken in the political world.48 Indeed, this process of constitutional change forged in the
crucible of politics is precisely what gave birth to the positive study of judicial behavior.49

*267 Instead, legal scholars devoted their energies, as they largely have done ever since, to
building a wall of separation between law and politics. The perceived need to cabin judges from
politics motivated most of constitutional theory in the second half of the twentieth century.50
Normative constitutional theorists’ obsession with the “counter-majoritarian difficulty”51
reflected the legal academy’s insistence upon defining a “special role” for the judiciary that set
it separate and apart from politics.52 The 1970s and 1980s were given over to interpretive theory
designed to keep judges within the bounds of law and out of politics.53 Later, theories regarding
the legitimate process of judicial constitutional change came to play the same duet,54 which also
serves as the backline for much theorizing about the scope of constitutional protections.55

*268 The insulation of judges from political control, and the importance of law as a constraint on
judicial willfulness, have become twin themes echoing through normative theory’s effort to enforce
the law-politics divide. Judges are to be insulated from politics, independent of it.56 At the same
time, law must constrain judges from rendering political judgments,57 and keep them from imposing
their own views.58 Normative theory abounds in metaphors and dichotomies that drive home these twin
ideas.59

*269 Only recently--sparked, as is typically the case, by a spate of contentious Supreme Court
decisions--have many begun to see that constitutional judging cannot be insulated from “ordinary”
politics in quite the way theory demands.60 Recognition of the relationship between law and
politics is on the rise.61 Still, it is apparent that normative scholars remain uncomfortable with
the implications of positive scholarship, even as they take notice. Legal theorists indicate their
discomfort by moving quickly from positive assertions about the relationship between law and
politics to conclusions that positive scholars would suggest simply are implausible.62 To take a
frequent example, some normative scholars look to the political branches to correct errant judges63
without considering whether there is any reason to think the political branches are likely to do so
at present.64

The time is ripe, it would seem, to take a closer look at the politics of judicial review. If, as
legal scholars increasingly are recognizing, law and politics cannot be kept separate, we still
need a theory that integrates the two while adhering to normative commitments about the rule of law
this society holds dear. Yet, normative theorists cannot come to even tentative conclusions about
how judges should act before understanding the *270 constraints those judges necessarily face. This
is what positive scholarship has to offer.

                       III. The Political Milieu of the Constitutional Judge

At the heart of the positive project is a question that normative scholars seldom pause to ask:
What motivates judges? Positive scholars ask this question because they cannot begin to understand
how judges are likely to decide cases and what might influence those decisions without some
understanding of judicial motivations. Influence only can be brought to bear upon those who care
about it. If a judge cares primarily for wealth, then in the absence of adequate enforcement,
judgments may be rendered for money. If a judge does not care to retain her job, then threats of
removal will mean little. One must ask, as does Richard Posner, “What do judges maximize?”65

Scholars have identified any number of things that might motivate judges, all the while recognizing
that defining the utility function of members of the judiciary seems to be more difficult than for
other government officials.66 The primary (though often implicit) assumption of normative
scholarship is that judges ought to be motivated primarily to decide cases based upon an
independent assessment of the law and facts.67 They might be, and some positive scholars may fail
to give proper credit because of the role orientation of judges. But judges also might care about
things as varied (and human) as reaching the outcome they prefer,68 increasing their leisure,69
*271 anticipating what other people or groups think of them based upon their decisions,70 seeing
that their will is obeyed,71 and--particularly for lower court judges--being promoted.72

By looking beyond normative assumptions regarding how judges should act to the question of what
motivates them to act as they do, positive scholars have identified a number of political forces
that influence the decisions of constitutional judges. “Political” is used here in a broadly
encompassing manner, referring to any influence brought to bear by the legitimate institutions and
actors of democratic government that reflects something other than the individual judge’s best
judgment of the way the law determines a case’s merits.73 This definition rests in opposition to
normative theory’s twin demands of constraint by law and insulation from politics. Given the
central theme that politics and law are symbiotic, the line between them cannot possibly be drawn
with surgical precision. What matters is that some of the influences discussed here will pose
difficulties for one normative theory or another, and others will pose serious questions to all of
them.

A. The Judge’s Own Values

It may seem counterintuitive to begin an examination of the political influences a constitutional
judge faces by focusing on the way the judge’s *272 own values affect the decision of cases, but
skipping over this would miss a central point of tension between positive and normative accounts.
Normative scholarship clearly finds it unacceptable that judges impose their own views regarding
constitutional meaning,74 yet this is what a prominent theory of positive scholarship, the
attitudinal model, argues that they mostly do. Although the attitudinal model has its difficulties,
it nonetheless makes a claim about the influence of judicial ideology that deserves more of a
response than it gets from normative scholars. Attitudinalists certainly overstate their case when
they deny law’s influence, but they are probably right that law does not constrain judicial
behavior in the way normative theory often seems to require.

The attitudinal perspective is controversial even among positive scholars for reasons that will be
instructive to normative theorists. Many positive scholars believe that the attitudinal account is
too simplistic, that it neglects other important forces that also bear upon and influence
constitutional judges. For the most part, however, the influences upon which other positive
scholars focus are the very sorts of political and institutional features that legal scholars
ignore.

1. The Attitudinal Model.--The central tenet of the attitudinal model is that the primary
determinant of much judicial decisionmaking is the judge’s own values.75 Judges come onto the bench
with a set of ideological dispositions and apply them in resolving cases. As the most notable
proponents of the attitudinal model, Jeffrey Segal and Harold Spaeth, explain: “Simply put,
Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did
because he is extremely liberal.”76 Although methodologies vary, attitudinalists typically use a
measure of judicial ideology and then rely on it to predict judicial votes.77 Often, they also try
to control for other factors that might influence *273 the vote: everything from personal
characteristics of the judge (such as race, gender, and prior occupation)78 to law itself.

Attitudinalists claim an enormous degree of success in their predictive endeavor, especially with
regard to the Supreme Court.79 “There is now surpassing empirical evidence in support of [the
attitudinal model] of judicial decisionmaking.”80 Segal and Spaeth are able to predict over 70% of
Supreme Court Justices’ votes based on ideology, and sometimes they do quite a bit better.81 “For
Rehnquist, Blackmun, Brennan and Marshall, simply knowing that a case involves search and seizure
would lead to correct predictions of votes between 78% and 90% of the time.”82 Even in the lower
courts, ideology turns out to be a significant determinant of judicial behavior.83

Virtually all positive scholars agree with attitudinalists that ideology plays an important role in
the decision of cases,84 though many positive *274 scholars believe that ideological behavior is
constrained by other institutional forces. According to these “strategic institutionalists,” “[I]t
is quite evident that the Justices do not operate simply in a world of their own making, and
therefore the contours of judicial institutions must be recognized and they must be situated within
[a] larger political environment.”85 Strategic institutionalists believe that judges would like to
impose their own policy preferences but that they also must take account of the preferences of
“presidents, legislatures, interest groups, and lower courts.”86 “Strategic judges must calculate
what others will do and adjust their behavior accordingly.”87

Especially when compared with strategic institutionalists, normative theorists bear a surprising
affinity with attitudinalists. In offering up their own theories for how judges should behave,
normative theorists apparently believe--as do attitudinalists--that judges are unconstrained by
other institutions and thus may decide cases in ways they so choose. Moreover, at least some
normative theorists understand that ideology often plays a role in judging. Indeed, attitudinal
findings that Supreme Court Justices vote according to their own ideology might evoke a sort of “ho
hum” reaction on the part of the legal cognoscenti.88

2. Does Law Constrain Judges?--Of course, something important does set normative scholars apart
from attitudinalists: the law. Normative scholars do not believe that judges should be
unconstrained actors, free to impose their values when they wish. Rather, law--defined broadly to
include doctrinal requirements of judicial deference--is expected to constrain judges. In this
regard, normative scholars and attitudinalists could not be more different.

Many nonattitudinal positive scholars acknowledge law’s influence upon judges. Modeling law is
complex and deserves more attention than it is getting,89 but few positive scholars (other than
attitudinalists) claim law does *275 not matter.90 To the contrary, they study the role of legal
discourse in briefs, oral arguments, and judicial decisions.91 There is an emerging agreement even
among positive scholars that--as lawyers would expect--the force of precedent carries substantial
weight in the lower courts92 and may be more significant in the Supreme Court than some
attitudinalists will admit.93 Justices may well vote consistently with their own precedents,94 if
not the precedents of the Court.

*276 The problem, however, is that influence is not the same as constraint.95 The central
attitudinal claim is not that law is without influence but that it does not keep judges from voting
their own ideology.96 Often the response to attitudinal claims about ideological voting is to raise
the problem of behavioral equivalence: How can one be sure it is ideology that is driving the
judge, rather than a good faith personal understanding of what the law requires?97 Attitudinal
scholarship has struggled to answer this question,98 but when it comes to normative theory the
answer may not matter as much as it seems.

Even if the Justices are deciding cases in good faith based on their best understanding of the law,
they still are voting their own values, as is evident from the fact that attitudinal studies are
able to predict outcomes based on ideology. At best, law is having an influence, but any judge’s
view of the law necessarily is influenced by ideology. (At worst, it is ideology and preference all
the way down.)

The fact that the Justices’ votes can often be explained as consistent with political ideology, and
that law apparently does not constrain these votes, requires more thoughtful response from
normative scholars than it receives. Normative theorists may claim a finding of ideological voting
to be “ho hum,” but however savvy the cognoscenti, they still need to square the insider’s
perspective on the Supreme Court’s work with normative theory. Knowing winks to one side, the hard
center of normative constitutional theory disdains judges voting their own values and insists that
there be a set of constraints to keep judges out of politics and within the bounds of what we think
of as “law.”99 This is what purports to separate normative theorists from attitudinalists. If it is
true that judges vote their values, and all the best lawyers and theorists understand this, then it
seems reasonable to expect *277 scholars to provide theories of judicial review that take
value-voting into account.100 Yet these kinds of theories are in notably short supply.

3. What Might “Ideology” Tell Us About Judging?--Normative scholars who seek to develop theories of
judicial behavior that take account of value-voting need to focus closely on what attitudinalists
mean by “ideology.” Judges do not come color-coded like electoral states, so positive scholars have
had to find proxies that indicate the relative ideology of judges. Just as measuring the relative
influence of law has posed a problem to attitudinal scholars, so too has finding the perfect proxy
for ideology. Although these ideological proxies are subject to criticism, they actually can be
quite revealing.

One prominent measure proxy for ideology (particularly for lower court judges) is the party of the
appointing President.101 The idea here is that because Presidents appoint judges based on ideology,
the party of the appointing President could be used as a proxy for the appointed judge’s own
ideology.102 In short, judges appointed by Republican Presidents will be *278 more conservative
than judges appointed by Democrats. There are criticisms of this method,103 among them that it is
relatively roughly hewn.104 Nonetheless, the measure enjoys respectable success in predicting
judicial votes.105

The predictive success of the presidential-appointment measure of ideology is telling because it
emphasizes the close relationship between politics and constitutional judging. No matter how rough
the appointing-President measure is as a proxy for any individual judge’s ideology, the predictive
success of this variable provides stark evidence of the extent to which the party controlling the
political branches influences the outcome of cases, *279 and thus the direction of the law. It is
this glaring reality, at least in recent years, that has turned the appointments process into a
battle royal.

Of late, a small group of normative scholars have sought to turn vice into virtue by explicitly
building normative theories regarding judicial review and constitutional change atop this
observation that judges vote ideologically and that presidential appointments will thus over time
spell the direction of constitutional law.106 At the heart of these studies is the notion that
presidential appointments will serve to bring the courts within the ambit of society’s views. One
example of such an approach is Jack Balkin and Sanford Levinson’s theory of “partisan
entrenchment”:

Partisan entrenchment is an especially important engine of constitutional change. When enough
members of a particular party are appointed to the federal judiciary, they start to change the
understandings of the Constitution that appear in positive law. If more people are appointed in a
relatively short period of time, the changes will occur more quickly. Constitutional revolutions
are the cumulative result of successful partisan entrenchment when the entrenching party has a
relatively coherent political ideology or can pick up sufficient ideological allies from the
appointees of other parties.107

Even though most today recognize the President’s influence upon the federal bench, normative theory
still ought to have some difficulty with these presidential-appointment theories of judicial
review. After all, theories such as these recognize that political actors can shift constitutional
law in response to electoral mandates. Yet most extant normative theories of judicial review rest
on the capacity of judges to act in a manner contrary to political or popular preferences.108 Love
it or hate it, the countermajoritarian image of the Supreme Court endures.

                                               * * *

Normative scholars must take account of value-voting, unless they can establish that it does not
exist or can explain how it is to be avoided. Normative theorists obviously can argue that what
judges are doing is not what they ought to do. But they also must have a story about why judges
might act differently or what will make them do so. Despite decades of argument that judges should
follow the law and not vote their own preferences, there is a great deal of evidence that
ideological voting *280 nonetheless is prevalent. Law undoubtedly plays a role in judging--and
positive scholars ignore this at their peril--but law does not always constrain judges in the way
normative theory seems to require.

As the balance of this Part explains, there are other constraints judges face, very real ones, and
these constraints--contrary to attitudinal reports--almost surely have an important influence on
the development of constitutional law. But these constraints, institutional in nature, run contrary
to others identified by normative theory about judicial review. That is likely why they receive
such little attention from normative theorists.

B. The Collegial Court: Intracourt Interaction

That constitutional judges necessarily face constraint is apparent as soon as one looks to the next
layer of influence--that of the collegial court. The heart of what an appellate court does is to
explicate legal rules, which are found in the court’s opinion.109 When it comes to the written
opinion, collegial pressures almost certainly temper what judges can do.110 Attitudinalists, who
obviously understand that the Supreme Court operates as a composite body,111 miss this because they
treat cases as the mathematical sum of individual votes as to outcome, rather than as statements of
what the law is.112

Normative scholars in the legal academy, who obviously also are perfectly aware that appellate
judges--and particularly Supreme Court Justices--serve on collegial courts, have proven remarkably
inattentive to the truly difficult questions the collegial setting poses for how judges ought to
behave. Because the Justices do not act alone, and because the weight of what they accomplish
typically depends on the extent to which they agree to act in concert, they face difficult choices
regarding how to reconcile their *281 individual views with the need to achieve a group result.
Positive theory highlights the choices that the Justices must make, choices that pose particularly
troublesome questions in constitutional cases. Surprisingly few normative scholars tackle these
issues,113 and those who do invariably notice the absence of a richer literature.114

1. Crafting the Law: The Court’s Opinion.--The opinion of the Court is a good place to begin
because it is the most familiar part of a collegial court’s work, and because it is here that the
difficult choices emphasized by positive scholars are most evident. On a fully constituted
nine-member Court,115 five votes can make the law,116 but anything fewer than five carries
substantially less weight. Justices remain free to express their own views--in concurrences as well
as dissents--but there is substantial pressure to obtain an opinion that speaks for “the Court.”
Sometimes Justices feel the need to move beyond a mere majority and approach or obtain
unanimity.117

*282 In order to understand the choices Justices face,118 it is necessary to draw the distinction
prevalent in positive literature between sincere and strategic behavior.119 Positive scholars
define the distinction in different ways, but in essence it is this: sincere behavior refers to a
Justice acting as she would in the absence of any other influence, according to her best personal
understanding;120 strategic behavior involves acting other than sincerely, in order to ensure an
ultimate outcome closest to the one the Justice personally prefers.121 Judges on a collegial court
necessarily must moderate their views to achieve consensus, but often they might do more: They
might, at times, act in a manner flatly contrary to their sincere views in order ultimately to move
the law in the direction they prefer.122

The authors of Crafting Law on the Supreme Court: The Collegial Game123 graphically demonstrate
strategic behavior in opinion writing and majority coalition formation by relating a story about
Justice Brennan’s actions in Pennsylvania v. Muniz.124 In Muniz, the police obtained incriminating
statements from the defendant in the process of booking him, *283 but they had not at that time
read him his Miranda warnings.125 Justice Brennan wrote for the Court, holding that there was an
exception to the Miranda rule for “routine booking question[s].”126 Private correspondence between
Justice Brennan and Justice Marshall indicates that Brennan’s vote and opinion in Muniz likely were
not an expression of his sincere preferences.127 Brennan wrote Marshall explaining that because
“everyone except you and me would recognize the existence of an exception to Miranda for ‘routine
booking questions,’ . . . I made the strategic judgment to concede the existence of an exception
but to use my control over the opinion to define the exception as narrowly as possible.”128 In
response to Marshall’s circulated dissent in the case, Brennan wrote Marshall again: “I think it is
quite fine, and I fully understand your wanting to take me to task for recognizing an exception to
Miranda, though I still firmly believe that this was the strategically proper move here. If Sandra
[O’Connor] had gotten her hands on this issue, who knows what would have been left of Miranda.”129

Assuming Justice Brennan acted strategically in Muniz, positive scholars and normative theorists
might view Justice Brennan’s actions quite differently. Positive scholars tend to think of judges
as possessing relatively fixed preferences:130 a judge on a collegial court simply tries to reach
an outcome that comes closest to his ideal.131 That is what Brennan did. Recognizing that his
preferred outcome was unlikely to prevail and that if he voted sincerely he would lose control of
the opinion so that the law might move considerably further away from his ideal, he settled for
second-best; he acted strategically both as to the content of the decision and the outcome of the
case. Normative theorists might criticize Justice Brennan for acting in a manner contrary to his
sincere preferences based on the notion that a constitutional judge should always decide according
to the judge’s best understanding of the law, as applied to a particular case.132

*284 How one views Brennan’s actions depends upon how one believes a collegial court should
operate.133 To the extent a debate has been framed in normative theory, it typically is between
aggregative and deliberative models of appellate judging.134 Under aggregative models, a collegial
outcome simply cumulates the views of the members of the appellate bench.135 Under deliberative
models, judges are supposed to interact in ways that lead them to consider one another’s views,
thereby arriving at better decisions.136

The Supreme Court’s opinion-writing practices suggest that an aggregative model is not
descriptively accurate. If the correct model was aggregative, then Justice Brennan violated the
norm: He should have voted his preference and let the chips fall where they may. But the Supreme
Court eschewed an aggregative model when it abandoned the practice of writing seriatim opinions.137
When Justices wrote seriatim opinions--i.e., each Justice expressed his own view--then it was
reasonable to assume that each Justice would do as he might and leave it to observers to find the
Court’s center through interpretation.138 Given that the Court today speaks through joint opinions,
as a practical matter Justices cannot simply adhere *285 to their views without taking account of
others.139 If they did, there might never be an opinion for the Court.

At the same time, positive scholarship wreaks havoc with prevailing notions of the deliberative
Court. Scholars such as Frank Michelman envision the Court as the locus of societal dialogue
regarding constitutional meaning,140 but this sort of theory appears deeply wishful in light of
actual practice. Scholars who study how the Court actually operates are clear that the deliberative
ideal bears little relationship to the reality of Court practice.141 There is precious little
talking that goes on, and even less that might be deemed deliberative, or even a conversation.
Justices state their views in conference, an opinion author is assigned, Justices decide whether to
join on or write separately, and the ultimate work product is prepared.142 There is communication
among the Justices, to be sure. Justices respond to draft opinions, typically by forwarding
suggestions as to language changes and offering to join if those changes are made.143 But empirical
studies demonstrate that Justices frequently simply join opinions as written,144 that *286 they do
so most quickly with their ideological allies,145 and that though there is some vote-changing
between the initial conference vote and the case outcome, it is not a frequent occurrence.146
Further, when votes do shift, they typically reorganize the Court toward what attitudinal studies
would have suggested was the right ideological lineup in the first place.147

In light of actual practice, positive scholars tend to see collegial interaction as a bazaar, much
like a legislative forum, in which votes and opinion language are traded.148 Note, for example, the
scare quotes around select words in Epstein and Knight’s description of Justice Brennan forging an
opinion in a Title VII case: “Collectively, Brennan had to deal with ‘suggestions’ from O’Connor,
Stevens, and Powell about ways to ‘improve’ his initial drafts.”149 Epstein and Knight plainly are
skeptical that Brennan would have seen the “suggestions” as “improvement” or that he necessarily
would have had much choice in entertaining them. As they say, “bargaining has been and still is a
fundamental part of the Supreme Court’s decision-making process.”150

*287 The idea of “accommodation” might present a better descriptive model for the Supreme Court’s
collegial interaction.151 In the world of legal practice it is quite common to circulate drafts of
documents and receive recommended language changes in return. Depending upon whom the players are,
the comments may be intended as mere “suggestions” or commands, but the overall point truly is to
“improve” the meaning of the text by eliminating uncertainty, dodging thorny problems, and offering
greater clarity. No doubt there are agendas aplenty in any such group-drafting effort, but the
project is a collegial one, the suggestions are often just that, and improvement--defined in
various ways, some tactical and some more objective--is the goal. Moreover, doing this on paper
(rather than person to person) makes sense, because the end result is, after all, a text.
Discussion can only get so far before the hard work of finalizing the text must take place. This is
how lawyers typically do business, and the Justices, after all, are lawyers.

A model of accommodation frames the proper question regarding Justice Brennan’s conduct in Muniz:
What is the acceptable scope of accommodation on a collegial court? So framed, the answer is not an
easy one, but it does seem to have its parameters in normative theory. On the one hand, there
appears to be widespread condemnation of the idea of Justices trading votes across different
cases152 (though there is some evidence that such trading has occurred153 and thus reason to think
the issue is a bit tougher than it usually is imagined to be).154 On the other hand, moderating
one’s *288 views within a particular case to obtain an admittedly second-best majority opinion
seems completely acceptable.155 An exemplar of this latter practice is again provided by Justice
Brennan, this time in Craig v. Boren.156 Craig involved the question of the level of scrutiny to be
applied in gender discrimination cases. In drafting Craig, Justice Brennan apparently moved away
from his preferred outcome--strict scrutiny--to the standard of intermediate scrutiny, which was
the best he could hope to achieve given the views of his colleagues.157

As it happens, evaluating Justice Brennan’s conduct is a time-bound endeavor; normative views
regarding the appropriate level of accommodation have changed over time and in ways that have
special significance in the constitutional realm. Today, Justices seem quite comfortable writing on
their own when they wish; they do so to such an extent that scholars have condemned the
“splintered” court.158 Yet, for much of the period between the late nineteenth and early twentieth
centuries, the norm was very different. During that earlier period, a norm of “consensus” operated
in which Justices frequently suppressed not only their views on the appropriate legal rule but
their dissenting votes as to outcome as well in order for the Court to display greater
unanimity.159

Extensive empirical work has established this early norm of consensus and its collapse in the
twentieth century. Relying on docket books from the Justices, scholars have established that during
the earlier period the Justices frequently silently signed on to decisions contrary to their
original conference votes.160 Although in theory it is possible that the Justices simply were
persuaded to the other outcome by the time the case was resolved, this appears not to be the case;
the Justices often were quite explicit in private communication that they were pulling their
punches consistent with the *289 prevailing norm.161 “Justices of the Taft Court felt presumptively
obligated to join Court opinions, even if they disagreed with their content, so as to preserve the
influence and prestige of the Court.”162 Of greatest interest, it appears that at least sometimes
this happened with the clear (if nonetheless tacit) hope that going along with a colleague in one
case would cause that colleague to go along in another.163

The norm began to collapse in the late 1930s and early 1940s,164 and it apparently is no accident
that it did so just as societal pressures came to bear on the then-conservative Court, amid
shifting notions regarding the extent to which constitutional meaning remains stable and impervious
to outside forces.165 Some have hypothesized that the greater the size of the Court’s majority
coalition, the more stable the law will be over time.166 Others have suggested that public support
for judicial rulings may vary in relation to the size of the Court’s majority and that unanimous
decisions in particular will quiet social dissent.167 Whether any of this generally is true--and
there is room for some skepticism168-- Robert Post has shown that during the early *290 part of the
nineteenth century, the norm of consensus was adhered to most strongly by those who felt that the
Constitution’s meaning was fixed and that the role of the Justices was to see it remain that
way.169 Formal norms of judicial behavior in place at the time reinforced this, discouraging
dissent on the Court.170 But as the Supreme Court’s constitutional decisions came under increasing
challenge, other Justices felt an obligation to express publicly a contrary view. Undergirding this
alternative understanding of the norm of judicial behavior was a sense--increasingly prevalent in
the broader society-- that the Justices were overemphasizing constitutional stability in the face
of changed circumstances.171

As the foregoing discussion suggests, the constitutional judge on a collegial court faces decisions
along two dimensions, neither of which presently receives much attention in the normative
literature. On one dimension, does a Justice properly adhere to one’s sincere views without regard
to the ultimate result? Or does the Justice act strategically, as Justice Brennan may have, to
obtain a second-best outcome? On the other, is it the right thing to join in others’ opinions, even
if they deviate from one’s best judgment, to put a common face on legal meaning, perhaps increasing
stability if not social complacency? Or is it proper to stand fast to one’s guns, speaking over the
heads of one’s colleagues to the broader public?172 How judges resolve these questions bears
profoundly upon the content of constitutional law and the process of constitutional change. Yet,
failing to take account of the positive literature, most normative scholars simply neglect these
questions entirely.

*291 2. Influencing the Law: Opinion Assignment and Other Rules of Court.--Of course, Justice
Brennan did two things in Muniz, not merely one. In addition to perhaps suppressing his sincere
views on the merits in exchange for a better (in his view) net outcome, Justice Brennan also
assigned the opinion to himself. The two worked hand in hand, but they are not the same. Justice
Brennan might have influenced the content of the opinion if he were in the majority in Muniz,
whether he was writing or not. As positive scholarship shows, his influence would have related in
part to how necessary his vote was in holding the majority coalition together.173 But because he
also was the senior Justice in the majority, by existing norm of the Court he was able to assign
the opinion to himself174 and have an even greater say in what the law ultimately looked like.

Positive scholarship highlights a variety of court rules, norms, and internal dynamics that have
substantial influence on what the law is,175 but receive almost no attention from normative
theorists. Some of these--such as practices that enhance the role of the median Justice--have bite
with regard to where power on the Court rests.176 Others--such as that involving opinion
assignment--have implications for how that power is exercised.177 To take one example, the Chief
Justice assigns the opinion if he is in the majority; otherwise the senior associate Justice
assigns. Empirical work suggests that the initial opinion assignee often ends up writing the
opinion for the Court and that most members of the majority coalition join without  *292 requesting
any changes, making the initial assignment incredibly important as to the direction the law will
take. (The smaller the majority coalition, the less likely both of these are. Studies also show
that when the Court is split 5-4, often the assignment will go to the marginal Justice in an
attempt to hold the Court together.)178

Perhaps normative theorists neglect these practices because they seem insufficiently important or
because there seems to be nothing to be done about them. Both points are surely wrong. Practices
such as opinion assignment directly influence the very content of the law. It is uncertain whether
Congress has the power to alter these rules, and it is unclear whether as a matter of policy
Congress should.179 But it is ironic that, although many scholars today are urging Congress to
restrain the Court if the Court will not restrain itself,180 so few scholars have examined whether
some of the Court’s less public, yet consequential, practices are subject to congressional control
and whether they should be modified in the service of substantive goals.181

3. Setting the Agenda: The Certiorari Game.--One Court practice deserves special mention here: the
process by which the Court grants review. Not only does certiorari practice serve as a bridge to
the next influence on the Justices,182 but it has an enormous impact on the Court’s agenda.183 On
this *293 subject there may be the grossest disparity between the copious attention fostered by
positive theorists184 and the relative neglect of the legal literature.

Many positive scholars view certiorari as a strategic game in which Justices vote at the review
stage based on their ideological preferences on the ultimate merits.185 They realize that this is
not all that occurs at the certiorari stage. The Court may take many cases just to resolve
uncertainty in the law,186 or simply because the Executive Branch is anxious to have a case
heard.187 But central to positive scholarship is the notion that the Justices are strategic in
using their almost unlimited control over their docket to manage their agenda along ideological
terms.188 Thus, a Justice who would like to affirm a lower court decision will not vote to grant
certiorari unless she is sure she has four other votes on the merits.189 With those votes, however,
she might engage in an “aggressive grant,”190 just as a Justice who would like to review a case but
fears he lacks the votes on the merits will vote to deny *294 review, a “defensive denial.”191 The
positive literature on this subject varies as to the prevalence of these practices,192 though there
seems to be little doubt that they occur.193

It apparently is the case that the Justices know what they are looking for and simply search for
the right vehicle in which to pronounce their judgment. It also seems to be the case that agenda
setting is at least partly ideological,194 and that the ideological majority on the Court will
grant review of the matters they wish to pursue. This agenda setting accounts for the direction of
constitutional law, just as the opinions themselves account for its substance. Although judges are
sometimes painted as passive actors, the Court’s discretionary docket gives an ideologically
committed Court broad ability to push selected areas of the law in preferred directions, while
leaving others entirely alone.

One would think legal scholars, quick to say how judges should decide cases, would have more to say
about which cases they should decide in the first place. “Those of us who profess some special
interest in understanding ‘the processes of constitutional decisionmaking’ should, presumably, be
as interested in the processes by which the Justices decide not to engage in articulated
decisionmaking as those by which they do.”195 Some scholars have complained that the Court is not
doing enough, at least when it comes to developing coherent national law.196 But for the most part,
normative *295 scholars dwell on the cases the Court does hear and entirely neglect how the agenda
itself is set.197

C. Intrabranch Interaction: Superintending the Lower Courts

Constitutional theory does not think much of the notion of the Supreme Court being constrained by
the lower courts. This statement holds in both its senses. That is to say, normative theory
apparently does not believe that lower courts ought to have much, if any, influence on the Supreme
Court, and (perhaps for this reason) not much scholarship is devoted to the impact that lower
courts have on the Supreme Court’s exercise of its power of judicial review.198 Positive theory,
however, indicates that the lower courts exert substantial influence over the Supreme Court. To the
extent this is true, existing theories of judicial review are necessarily incomplete because they
fail to take account of the gravitational pull of the lower courts.

1. Normative and Positive Theories of Lower Court Behavior.--In the legal academy, thinking about
the judicial system is distinctly top-down. There is a hierarchy, and at the pinnacle sits the
Supreme Court.199 Normative conceptions of judicial review rely heavily on this top-down
understanding, albeit often implicitly. The work of the Supreme Court gets the lion’s share of
attention,200 and it is simply taken for granted that lower courts do, and should, follow the
mandate of higher courts. “It is axiomatic that an inferior court must respect prior precedents
created by its superior courts, those courts that exercise revisory jurisdiction over it.”201
Perhaps *296 because this hierarchical conception is driven by the imperative that “like cases
should be treated alike,”202 scholars rarely question the compliant role of lower courts.203

Positive scholars have a very different take on the hierarchical system of judicial review. They
tend to view the lower courts as unruly agents whose conduct may have a significant impact on the
way the principal does business.204 Theoretical work in the positive world asks how it is that the
Supreme Court can “induce” its agents to follow its direction,205 while empirical work tries to get
a handle on the extent to which compliance is obtained and in what fashion.206 Focusing on how
compliance is obtained, rather than presuming it, gives the positive literature much more of a
bottom-up flavor in the sense that action at the bottom rungs of the judicial ladder can set the
agenda for what happens above.

*297 Differences in normative and positive scholarship are captured by the metaphors they employ to
describe their models of the court system. Normative work relies on the metaphor of a team, or
collegial, enterprise: judges share the task of disposing of cases before them in the most correct
and efficient manner.207 Positive scholars, in contrast, describe the system as competitive and
refer to principal-agent models: judges at each rung of the policy ladder try to achieve their
preferred outcomes and “higher” courts struggle to exert control.208

As one might guess by now, at the heart of these contrasting approaches rest equally different
understandings of what motivates judges. In normative thought, judges follow precedent because they
are supposed to; role orientation does the trick.209 Formal models premised on the team approach
suggest that this norm evolved because it is the most efficient system to achieve the judiciary’s
goal.210 Positive theory, on the other hand, asks why lower courts would comply with stare decisis
if doing so conflicts with policy preferences.211 Positive scholars acknowledge that there are
perfectly good reasons why lower court judges might choose to follow the precedents *298 of higher
courts.212 Besides role orientation, judges also might follow higher court precedents because of a
dislike of reversal213 or the desire to be thought well of by peers.214 But positive theorists
recognize that lower court judges also may be motivated by attitudinal or strategic concerns that
cut against following higher court precedents.215

Differing motivations imply different behaviors, which in turn have their own normative
implications. To take one example that actually is mooted in the legal literature: should a lower
court judge who seeks to comply with the commands of a higher court do so by following the
precedents as they exist, or by attempting to predict what the higher court will do once the case
arrives there?216 The weight of legal scholarship--and certainly the Supreme Court’s view217--holds
that lower courts must adhere *299 to the rules as laid down by superior courts.218 But consider
this question from the (positive) perspective of the lower court judge. If that judge dislikes
reversal or “crave[s] affirmation,”219 then the judge might try to predict what the higher court
will do, based in part on the ideology of the higher court judges.220 (Similarly, a lower court
judge seeking promotion might try to please those in a position to help the judge realize her
goal.)221

2. The Decisional Freedom of Lower Court Judges.--Empirical studies offer some initial support for
the top-down hierarchical approach that plays prominently in normative theory. Such studies show
that lower courts often act consistently with the preferences of higher courts or in accord with
other legal requirements,222 though it is difficult to tease out whether lower courts do so because
of a desire to follow the law or a fear of reversal.223 As one *300 might anticipate, federal
district courts seem to be more constrained than the circuit courts.224

Before applauding the fidelity of lower court judges to law, however, it is necessary to look more
closely because it is not entirely clear how much these studies are telling us.225 The studies do
not really test compliance with law in the strict sense. Instead, what the authors of these studies
try to do is identify rather stark legal doctrines that tend to compel conclusions in one
direction, such as the standards for fact reversal of lower courts,226 or the Chevron deference
doctrine,227 and see if the run of outcomes is consistent with the doctrine’s directional force.
Alternatively, the models try to determine whether lower court outcomes in specific areas shift as
the Supreme Court shifts ideological or doctrinal direction.228 These studies do show a sort of
wholesale compliance,229 but because no doctrine requires all cases be decided in the same
direction,230 they say little about case-by-case retail.

Moreover, study after study--often the same body of work--makes equally clear that ideology plays a
role in lower court decisions.231 Ideology *301 is more likely to play a role when the range of
lower court discretion is broader, as measured either by the likelihood of review (an indication of
strategic judging)232 or the narrowness of the doctrinal command (which could reflect strategic
concerns or adherence to the legal model).233 Law may hold sway in the lower courts, but ideology
plainly does as well.234

Indeed, these empirical studies likely underestimate the impact of ideology. The vast majority of
the studies focus on compliance by the lower federal courts rather than the state courts.235 Yet it
is common wisdom that the state courts may be less compliant than their federal counterparts,236
though this is a matter of empirical dispute.237 With regard to the federal courts of appeals,
recent studies suggest that the impact of judicial ideology may be understated because of a curious
phenomenon called “panel effect.” Important work by Richard Revesz revealed that in determining
votes a judge’s colleagues on an appellate panel may matter as much or more than a judge’s own
ideology.238 A panel of three judges appointed by a President of the same party (e.g., three
“Republican” judges) acts in a more extreme *302 ideological fashion than a mixed panel (e.g., two
“Republican” judges and one “Democrat”); and on mixed panels the stray judge often will vote in a
manner contrary to her own ideology and with that of her colleagues.239 The effect Revesz observed
has been confirmed in an extensive review of numerous court of appeals decisions, which concludes
that given the panel effect, a party’s chances “are significantly affected by the luck of the
draw”240--a fact that likely does not escape litigants.241 “[P]anel composition lead[s] to
dramatically different outcomes, in a way that creates serious problems for the rule of law.”242
The effect is severe enough to have led some serious scholars to suggest that panels be drawn
intentionally to ensure that they are mixed.243

3. The Problematics of Supreme Court Supervision.--If lower court judges are inclined to willful or
ideological behavior, how does the Supreme Court keep them in line? Much positive work has been
devoted to figuring out exactly how the Supreme Court governs the judicial hierarchy--a problem
normative scholars think about insufficiently, likely because of their assumption that lower courts
simply follow precedents. The problem is a vexing one, because-- as is common knowledge--the Court
hears an infinitesimal number of the adjudicated cases by the lower courts and a small fraction of
those that even are offered to it for review.244 For positive scholars, reversal is the key weapon
in the Supreme Court’s arsenal,245 yet on *303 its face, “Reversal is a particularly unimpressive
sanction in the context of circuit-Supreme Court interactions, where the likelihood of reversal by
the Supreme Court in any individual case is so small as to render it essentially meaningless as a
sanction.”246

The models of Supreme Court governance offered by positive scholars are extremely creative and
ought to be thought provoking for normative theorists. Some scholars explore the idea of the
Supreme Court “auditing” lower court cases by some criteria to determine which require review.247
Others examine techniques of “monitoring” and “signaling” by litigants and lower court judges.248
Some conceptualize the appellate review game as a “tournament” in which judges compete to not get
reversed.249

These models pose a problem for normative constitutional theory because they are driven largely by
ideology. One of the more intriguing models employs a “Nixon goes to China” strategy in which, for
example, a conservative Supreme Court is most likely to hear cases involving liberal courts
rendering liberal decisions, eschewing review of liberal outcomes by conservative lower courts and
conservative outcomes by any court.250 Empirical testing of the model in the area of search and
seizure cases indicated good predictive capacity.251 The implication is that the Supreme Court’s
ideology drives case selection (and outcomes),252 with much else neglected. Similarly, models that
rely on the threat of review assume lower courts can conform their decisions to the precedents of
the higher court.253 But in cases that make it to the Supreme Court, the law is almost always *304
open-ended enough that if lower courts are “complying,” it is likely by guessing the correct
outcome based on an evaluation of the Supreme Court’s ideology.254 There is some empirical evidence
that they do this, despite the Court’s instructions otherwise.255

Most important, these positive studies suggest that lower courts can force the Supreme Court’s
hand256 and, in turn, influence the substantive content of constitutional law.257 As Walter Murphy
explained, “working in its interstices, inferior judges may materially modify the High Court’s
determinations.”258 In order to assure lower court compliance, the Supreme Court must modify
constitutional doctrine. One interesting model suggests that when the preferences of lower court
judges deviate substantially from those of the Supreme Court, the Court will have to widen the
range of acceptable outcomes to ensure compliance.259 Some empirical work, and some experience,
suggest that at other times the Court will have to employ very specific tests to ensure its
mandates are followed. A recent study of taxpayer standing law finds that “[w]hen the legal
precedent is clear, unambiguous, and narrow (or it is perceived to be such) . . . judges adhere to
it, apparently in an effort to achieve ‘correct’ outcomes.”260 The Miranda rule is a familiar
example of lower court deviation driving the Supreme *305 Court’s doctrine.261 Although, since its
inception, the rule has been criticized as too “legislative,”262 scholars also recognize that the
specific rule was adopted because the Supreme Court could not find any other way to police its
views about tolerable interrogation practices.263 Similarly, whether the Supreme Court can rely on
“rules” or “standards” when it decides cases--much mooted as a normative matter--may turn as much
on questions of lower court compliance as on jurisprudential preferences.264

4. Implications for Normative Theory.--The idea of bottom-up influence is not entirely alien to
normative theory, finding its expression in the idea of “percolation.”265 There is an established
strand of scholarship that sees virtue in lower court divergence, in that it presents the Supreme
Court with information and guidance regarding how novel issues should be decided.266 At least one
positive model suggests that the Supreme Court encourages some divergence in order to provide it
with information as to where its intervention is needed.267

*306 The problem, though, is that the idea of percolation is in substantial tension with the rule
of law.268 Thus, some question whether the percolation argument “at best . . . is making a virtue
of necessity.”269 As indicated above, the practice of stare decisis and a model of strong Supreme
Court control typically are justified in order to assure that like cases are treated alike and out
of a concern for uniformity. Under the most optimistic of views, however, there are going to be
many cases that lower courts resolve with limited guidance. Less optimistically, positive
scholarship suggests that there is enough play in the joints to allow lower court ideology to
decide a significant number of cases. As Chief Justice Rehnquist himself recognized, the Supreme
Court cannot hope to resolve many of these cases, and thus it is fairly certain that like cases are
not always (or even nearly) treated alike.270 Percolation may just be an appealing rationalization
for sharp departure from the rule of law.271

Any theory of judicial review that does not account for the actual role of the lower courts will
necessarily be seriously incomplete. Two prominent cases make the point. In United States v.
Lopez,272 the Supreme Court initiated the federalism “revolution” that has raised scholarly ire,
holding that the Commerce Clause had teeth that actually limited the scope of congressional
power.273 This is a revolution that began in the lower courts.274 *307 As such, one reasonably
wonders if the Supreme Court would have reached out to strike down the congressional law--or any
congressional law--that the lower courts upheld.275 At the same time, studies show that the lower
courts have since failed to follow the Court’s lead here.276 Apparently, revolutions not only can
begin in the lower courts, they can end there too. Consider the decision in Casey v. Planned
Parenthood of Pennsylvania,277 declining also to overrule Roe v. Wade.278 The popular story that
played about Casey was that the Court had upheld liberal ideals, and there is anecdotal evidence
that the plurality decision was deliberately crafted to ensure this reaction.279 But the lower
courts have run with Casey in a way that sometimes has meant serious curtailment of abortion
rights.280 The lower courts can permit the Supreme Court to get away with a great deal. A view from
the top obscures the story.

Normative theory has failed to develop a satisfactory (or almost any) account of the lower courts’
role in the development of constitutional meaning. By seeing the legal landscape from the
perspective of the Supreme Court, normative theorists fail even to capture the true content of
constitutional law.281 There is not enough in the way of bottom-up theorizing *308 and little that
takes account of positive narratives of lower courts’ behavior. Scholarly fixation on the Supreme
Court to the neglect of the lower courts, while understandable, fails to capture the actual process
of constitutional change.282

D. Interbranch Interaction: The Separation-of-Powers Game

The judiciary does not stand alone. It is part of a three-branch system often described as one of
separated powers but deliberately designed so that power would check power.283 For this reason,
normative and positive scholars both agree that, at least in theory, when judges act, they must do
so cognizant of the other branches of government. Here, however, the similarity between the two
approaches ends.

Normative constitutional theory is preoccupied with the question of what deference the judiciary
ought to pay to the wishes of the other political branches, and it is distinctly of two minds. On
the one hand, there is a long tradition--that of “restraint”--that encourages judges to take a
deferential posture toward legislative judgments.284 But urging restraint tells courts little of
what they should do.285 Taken to its extreme (and there are prominent legal scholars who have so
taken it), restraint becomes a prescription for judicial passivity. Judicial review implies that
courts do something, and the *309 competing tradition is one of normative scholars telling judges
what precisely to do.286 Much of normative constitutional theory is about how judges should review
the work of the other branches and what limits judges should impose upon them.287

These two competing positions represent what might be called the “threat” and “hope” of judicial
review.288 The threat of judicial review is believed to be its tendency to diminish or interfere
with democratic governance.289 Arguments for deference or restraint are built on precisely this
fear. But over time many have believed that judicial review serves an admirable function--ensuring
that government adheres to constitutional commands.290 Particularly prominent during the last
century has been the belief that judges enforcing the Constitution will protect minority rights and
enforce constitutional safeguards.291 This is the hope of judicial review. The hope narrative is
reinforced by normative thought regarding judicial “independence.”292

Positive scholars have long doubted the descriptive accuracy of both normative stories about
judicial review, largely because they doubt the premise that judges have the capacity to interfere
regularly with the work of the other branches.293 Given that the judiciary, in Hamilton’s words,
*310 possesses neither the purse nor the sword, positive scholars wonder: How could judges wield
such affirmative power?294 Positive scholars see judges as beholden to the other branches for their
very existence and thus constrained by those other branches.295 Roughly half a century ago, Robert
Dahl famously asserted that, given its lack of political force, the judiciary never would be far
out of step with the national political branches.296 Believing that “the basic reason
constitutional protections for judges have remained strong and stable over the years is that the
political branches have not really wanted to alter them,”297 positive scholars have sought a
justification for why judicial review serves the interests of those in power298 and have questioned
*311 whether courts really can serve as instruments of social reform if the other branches are
resistant.299

1. Testing Interbranch Constraint: The Separation of Powers Game.--Positive scholars analyze the
extent to which the judiciary is constrained by other branch actors by using “spatial” models--what
some refer to as the “separation of powers game.”300 Although the modeling can be quite complicated
and the empiricism poses difficult challenges, the intuition is really quite simple. All
institutions (including the Supreme Court) have preferences as to policy outcomes, but in acting
they also must take into account the preferences of other branches that play a role in the ultimate
policy choice.301 To choose a familiar example, when Congress passes a bill, it obviously has to
consider the possibility of a presidential veto, and it probably also should think about whether
the Supreme Court is likely to overturn the statute on constitutional grounds.

Central to the operation of these models is the notion of “anticipated reaction,”302 which can make
the play of the “game” difficult to observe. *312 Branch actors do not actually have to take action
and then sit back and wait to see what happens. Congress need not pass a statute and then wait for
the President to veto it. Rather, institutional actors think ahead to what response their action
will engender and then modify their positions in light of the anticipated reaction in a way that
moves policy closest to the preferred outcome, while avoiding trumping action by another branch.
Thus, Congress--anticipating a veto of legislation that is too liberal--will pass a bill that is
just conservative enough for the President to accept it or that ensures a two-thirds vote on
congressional override of any veto. The implication of anticipated reaction is that institutions
may be responding to constraint, even if this is unobservable.

For reasons that are probably obvious, most positive scholarship applying the separation-of-powers
game to the Supreme Court occurs in the area of statutory interpretation.303 The
separation-of-powers game requires that there be an action that the other branches can take in
response to one branch’s decision. What the Supreme Court does with statutes is fertile ground, as
those interpretations obviously can be overturned by new congressional enactments.304 There are
notable examples of Congress overruling Court interpretations of statutes, particularly in the
civil rights area.305 Scholars argue that the Court is aware of this possibility of congressional
override and tempers its statutory rulings accordingly.306 Stated differently, the claim is that
when interpreting statutes, the Supreme Court is constrained by the other branches.

Claims of judicial constraint in statutory interpretation cases are hotly contested. As discussed
above, attitudinalists question whether the Justices face any meaningful constraint from Congress
or the Executive. Their claim is not that constraint is impossible, but that as a practical matter
of political *313 configuration constraint is very rare.307 Jeffrey Segal argues that existing
separation-of-powers models make too many assumptions in favor of finding constraint,308 and that
when the data are analyzed correctly, empirical support for the claim of constraint is quite
weak.309 “The federal judiciary was designed to be independent,” Segal points out, “so we should
not be surprised that in fact it is.”310

2. Constitutional Separation of Powers Games.--Given that the fact of constraint is contestable in
the context of statutory interpretation, one might rightfully be skeptical that the model has any
value when it comes to constitutional judicial review. After all, overturning a statutory ruling is
easy compared to what is required to overturn constitutional rulings.311 The amendment process is
notoriously difficult and rarely successful. Further, other institutional actors may find some
benefit in having a system of judicial review and be loath to tamper with constitutional rulings.
It likely is for these reasons that many positive scholars apparently are not rushing to test
constitutional separation-of-powers models.312

Even a quick glance at history, however, suggests that there is something to the constitutional
separation-of-powers game. Although amending the Constitution is difficult, the political branches
retain a broad arsenal of weapons to use against a troublesome judiciary. Judges may be impeached,
jurisdiction may be stripped, courts may be packed, and judicial *314 budgets may be cut.313 It is
not as if the other players have no moves in response to constitutional decisions they dislike.314

It is true that the other branches rarely deploy these weapons against the judiciary--at least in
recent memory--but the doctrine of anticipated reaction holds that the political branches can both
keep the powder dry and the judiciary in check. History is certainly replete with instances in
which these measures have been employed.315 A candid view of that history, as well as some
empirical study, compel the conclusion that judicial change in constitutional doctrine is
correlated with utilization of these court-disciplining measures, or the threat to do so. Under
threat of judicial impeachments, John Marshall offered to give up the judiciary’s last word on
constitutional questions.316 Jurisdiction was stripped in a manner that prevented the Supreme Court
from ruling on the constitutionality of Reconstruction at a critical moment, and the Court
acquiesced.317 The Court’s size was changed at several points during the Civil War and
Reconstruction and, in at least one famous instance, this had an immediate and substantial
impact.318 Roosevelt’s Court-packing plan did not succeed in changing the size of the Court, but
the doctrine itself changed quickly enough *315 thereafter.319 Congress threatened to strip
jurisdiction after Red Monday and the Court moderated its views.320 To this day, Justices
demonstrate an awareness of these historical events as a nod toward the Court’s relatively fragile
position.321

The game need not be one of all sticks and no carrots. The Court has more at stake than avoiding
attack. Preserving institutional integrity and power requires judges to ensure that their orders
are implemented by the other branches.322 The Supreme Court can bluster all it wants about its
place as ultimate interpreter of the Constitution, but implementation is not guaranteed, and the
Court is unlikely to go ordering a lot of things that are just not going to happen.323 Andrew
Jackson’s apocryphal quip, “John Marshall has made his order, now let him enforce it,” captures the
sentiment, as did Georgia’s hanging of Corn Tassels after Marshall’s Court ordered it not to.324 In
recent memory, the Court was careful to ensure that Richard Nixon would comply with its order
compelling the production of the tapes before issuing it.325 As with the sticks, there is evidence
that implementing the carrot has its influence on the Court.326

*316 There are reasons to believe the separation-of-powers game actually is easier to play in the
constitutional than in the statutory area. William Eskridge and Phillip Frickey explain the
importance of “signals” to the interbranch game.327 Signals by the players permit the other players
to calculate what the response to a given decision might be. In the constitutional area the issues
are often quite salient, so the Court receives lots of information about what reaction to
anticipate.328 This is particularly the case if one takes account of the President’s role in the
separation-of-powers game, which much of the positive literature does not. The President not only
fills an essential institutional role with regard to implementation of judicial orders and
challenges to judicial authority, but he also has the bully pulpit and plays a clear leadership
role.329 The President also has an agent--the Solicitor General--who appears regularly before the
Court and whose influence there is demonstrable.330 Thus, in constitutional cases the Justices have
plenty of leads to follow, enough so it would seem that they could coordinate their behavior
tacitly.

3. The Constrained Court.--It should come as little surprise, then, to learn that scholars are
increasingly finding evidence that the Supreme Court faces constraint in constitutional cases.
Empirical work demonstrates the relationship between judicial activism and court-curbing
measures--overly activist Justices call such measures down upon themselves and then back away in
response.331 One study shows that the Court moderates its views in *317 constitutional cases in
accord with presidential preferences.332 And a recent study shows that the most current binge of
judicial activism toward congressional enactments--the subject of profound academic complaint--is a
perfectly predictable outcome of the separation-of-powers game.333 That binge began in 1994, the
year that Republicans took both houses of Congress, making it unlikely that there would be much
movement to curb judicial activity--especially when one recognizes that most of what the Court was
striking at the time were enactments of an earlier (more liberal, Democratic) Congress.

To the extent that the Court faces constraint in constitutional cases, this is problematic for
normative theory. At the heart of all “hope” stories about judicial review is the notion that
courts can--and will--stand up against the other branches of government in the protection of
constitutional safeguards. The fact of constraint calls this story into question. The problem is
exacerbated by the role of ideology and party affiliation. The Court likely is most constrained
when the other branches are united ideologically, which might be the very time judicial scrutiny is
most appropriate in a system of checks and balances.

Interbranch constraint poses a problem for normative “threat” scholars as well. These scholars call
upon judges to restrain themselves from interfering in democratic politics. But the
separation-of-powers game suggests that restraint will come from without the judiciary, while
attitudinal studies suggest that it is unlikely to come from within. To the extent this is correct,
restraint may be least likely when it is sought most. The five Justices presently voting regularly
to strike congressional enactments are doing so *318 based on attitudinal considerations because
they can. Given the current partisan and ideological unity of the branches, there is no meaningful
external constraint on those invalidations, nor is there likely to be one.334 The conservative
Court is striking progressive enactments, and the conservative Congress just doesn’t care.

The Supreme Court’s recent activism has focused the attention of normative scholars on the politics
of judicial review, but those scholars still fail to integrate fully the lessons of positive
theory. Even normative scholars who are attentive to the relationship between constitutional
politics and law seem to lose their way at precisely this point. Scholars such as Robert Post, Reva
Siegel, and Larry Kramer have recognized of late that despite the deepest, longstanding aspirations
of normative theory, law and politics cannot be so easily separated--that the two inevitably are
intertwined.335 Yet, recognizing this positive fact, they nonetheless turn prescriptive in ways
that positive theory would doubt are plausible. Kramer urges Congress to eschew its complacent
posture toward judicial activism.336 Positive theory suggests that Congress would have little
reason to do so at present, given the ideological affinity of the branches. Siegel and Post insist
that the Court ought to take present political preferences into account lest it run into
trouble.337 Positive theory suggests that the implicit threat is toothless, given the current
ideological alignment of the branches. The Court has been able to do what it has precisely because
there is no will elsewhere to make it do otherwise.

Still, these scholars are right to raise what may be the more profound normative question: whether
what presently is occurring might bring the entire separation-of-powers game out of kilter. If in
fact the Court is acting in a hegemonic way when it comes to determining constitutional meaning,
and if it is not getting any guff simply because the other branches like the immediate outcomes,
then the question is what this signals for the long term. This is just the question Robert Post and
Reva Siegel ask in a recent paper on judicial limitation of Congress’s Section Five power.338 They
concede that, at the moment, “Congress seems disengaged and possibly confused,” and they recognize
that “[m]any on the Hill have no special commitment to the provisions of the ADA or the Violence
Against Women Act or the ADEA invalidated in recent cases.”339 But still they insist that Congress
should “defend the distinctive ways in which legislatures make judgments about the *319 meaning of
invidious discrimination.”340 Similarly, Larry Kramer explains that congressional complacence is
dangerous precisely because it breeds an atmosphere of belief that it is inappropriate to muscle
around the Court.341 If what is occurring is acquiescence in judicial supremacy simply because the
political branches approve the results, one might wonder whether power given up so readily can be
recalled when the political branches become unhappy with the Court’s behavior. Like the supposed
finger on the scales of judicial deference to Congress, this places a finger on the scales of
unquestioningly accepting what the Court does and brings the entire system out of balance.

Recent events, however, belie these fears. They are found not in actions Congress has taken against
the Court, but in judicial decisions that suggest a tempering of the attitudinal motivations.342
For example, in its latest examinations of congressional legislation on federalism grounds, the
Court blinked, approving of legislation that would have seemed vulnerable under precedent.343 In
other cases, the Court has taken what looks to be a decidedly liberal turn, upholding some
affirmative action in higher education,344 striking gay sodomy laws,345 and--most
recently--challenging the government’s position on detaining suspects in the war on terror.346

Although the separation-of-powers model might provide a persuasive partial explanation for the
Court’s recent turn to the left, it also suggests that a piece is still missing from the puzzle.
The fact that the Court has shifted while the other branches remain staunchly conservative suggests
that something else is going on. The decisions against the administration in the war on terror
cases may have been possible because of congressional disenchantment with executive policy.347 But
other outcomes are harder to *320 explain. Perhaps the sitting Congress is more committed to the
Family and Medical Leave Act upheld in Nevada Department of Human Resources v. Hibbs348 than it was
to the provisions of the Violence Against Women Act or Americans with Disabilities Act struck down
in United States v. Morrison349 and Alabama Board of Trustees v. Garrett.350 Yet a study of the
ideological preferences of members of Congress would have a difficult time distinguishing among all
the laws upheld or struck down. Certainly when it comes to affirmative action or gay rights, it is
unlikely that the present political branches would have brought the Court to book had it voted the
other way in these leftward-leaning decisions.

E. The Will of the People

A reasonable candidate for further explaining the Court’s recent leftward shift is the final
influence on the judiciary discussed here: public opinion.351 The shift itself has been
accomplished largely through the votes of median Justices, particularly those of Justice
O’Connor.352 It is possible that Justice O’Connor’s votes are purely a reflection of the
attitudinal model: As the Court further pursued its conservative agenda, Justice O’Connor simply
may have been reaching her ideological limits.353 Yet, explaining the difference in outcomes on the
Eleventh Amendment issue in cases like *321 Garrett354 and Hibbs355 is more than a little
difficult. Similarly, Justice O’Connor voted in the majority in Bowers v. Hardwick,356 but recently
voted contrary to the Bowers result (albeit on equal protection grounds) in Lawrence v. Texas.357
One suspects something else may be afoot, and Justice O’Connor herself has provided a suggestion of
what it is: “[R]eal change, when it comes, stems principally from attitudinal shifts in the
population at large. Rare indeed is the legal victory--in court or legislature--that is not a
careful by-product of an emerging social consensus. Courts, in particular, are mainly reactive
institutions.”358

The same tension found in normative scholarship regarding constraints imposed by the other branches
also surfaces with regard to the influence of public opinion upon the judiciary. Normative theory
tends to see judicial review as a constraint on popular opinion, for better or for worse. On the
one hand, judicial review has long been applauded as a desirable check upon the passing passions of
popular will.359 On the other hand, another strain of normative scholarship sees judicial supremacy
over constitutional meaning as threatening the very essence of democracy itself--popular rule. This
latter strain has been somewhat submerged in the last several decades, but recent years have seen a
surge in theories of “popular constitutionalism.”360

*322 For positive scholars, the whole debate is overplayed; they believe that constitutional law
typically reflects popular values, albeit at some ill-understood remove.361 Although the mechanisms
operating here are not altogether clear, the notion is that popular will might operate as a
constraint on judicial decisionmaking, and not vice versa. Methodological work on the relationship
between popular opinion and judicial review is somewhat trickier than elsewhere, and the theory
underlying it is itself of rougher design. Yet many positive scholars see some connection between
the popular will and the work of ostensibly independent judges.

1. Judicial Decisions and Popular Opinion.--Typically, empiricism follows theory in positive
scholarship. When it comes to the influence of public opinion, however, much work begins with the
extremely important empirical observation that there is a correlation between public opinion and
judicial outcomes.362 Stated more aggressively, some positive scholars believe that, over time,
many important decisions of the Supreme Court are consistent with public opinion.363 When there is
divergence, judicial views ultimately tend to come into line.364 This proposition has been tested
by comparing public opinion polls with judicial outcomes365 and by comparing *323 shifts in public
mood with trends in Supreme Court decisionmaking.366 No one thinks the methodology is perfect,367
but the evidence is highly suggestive: the Court does not “exclusively or persistently act in
opposition to public opinion.”368 There are exceptions--First Amendment cases perhaps being a
notable one--but they are just that.369

According to positive theory, the Justices certainly have ample incentive to pay attention to
public reception of their work. Although the public lacks formal authority to prevent the
implementation of constitutional guarantees, they certainly can stand in the way. The massive
resistance to Brown v. Board of Education370 or the more low-level evasion of bans on school
prayer371 come to mind. In addition, the Justices may feel they stand trial in *324 the court of
public opinion.372 If not personal reputation, then the Justices might care about the institutional
legitimacy of the Court.373

But public opinion’s greatest influence on the Supreme Court may be indirect, wielded against the
officials who, in turn, hold power over the Court.374 That influence could work to stir trouble
against the Court or to protect it,375 though it is probably the latter that is most significant.
“The fear of . . . a public backlash can be a forceful inducement to implement judicial decisions
faithfully.”376 History has seen popular influence work in both directions. Attacks on the Court in
the late nineteenth and early twentieth century came from Populist politicians.377 And popular
sentiment for the independent judiciary likely saved it in the face of the politicians’ attack in
1937.378

*325 History confirms the tug that public opinion has on the direction of constitutional law. The
most famous example might be events subsequent to the defeat of Roosevelt’s court-packing plan. The
plan failed, but the Supreme Court bench had many new occupants, and constitutional law took a turn
more congenial with popular wishes.379 There was a similar correction in the aftermath of late
1950s attacks on the Court,380 and the same again at the end of the 1960s when Richard Nixon made a
challenge to the Court’s activism a focal point of his campaign for the presidency.381

Some puzzle over the mechanism by which the Justices remain in touch with popular opinion, but in a
sense it may be easier to respond to public opinion than it is to play the separation-of-powers
game. The Justices live on this planet and typically are aware of what happens on it. They read
newspapers, watch television, and come into contact with popular opinion regularly.382 To the
extent that this is not enough, evidence indicates that the number of amicus briefs in
constitutional cases is on the rise.383 Certainly, when the gusts may affect them, it should not be
all that difficult to discern which way the prevailing winds are blowing.

2. The Leash of “Diffuse Support.”--One might reasonably ask why public opinion deserves analysis
separate and apart from the models that examine interbranch interaction. Principal-agent theory
posits the rulers as servants of the ruled. At least in a well-functioning political market, there
ought not to be huge slack (though slack there is) between what the governed want and what they
receive.

*326 Positive theory’s “diffuse support” hypothesis, however, suggests that the interaction between
public officials and popular opinion might alter the constraints that the judiciary faces. The idea
of “diffuse support”--which finds root in seminal work by David Easton--is that public institutions
maintain a reservoir of popular favor even among those who dislike immediate decisions.384 If
diffuse support operates differently for officials than for members of the public, this could
affect how constrained the judiciary is. The question then is whether there is this diffuse support
among the public.

Scholars--most notably Greg Caldeira and James Gibson--argue that the Supreme Court enjoys a fair
amount of diffuse support.385 Testing diffuse support is difficult because it involves teasing out
deeper feelings about judicial review and the Court as an institution. Problematic though they may
be, studies confirm that diffuse support exists--that people will support the maintenance of an
independent judiciary even when quite dissatisfied with present outcomes.386 No better crucible for
testing the proposition may have existed than the decision in Bush v. Gore;387 studies following
the decision confirm the theory.388

Caldeira and Gibson also argue that diffuse support is deeper among the general public than among
officials.389 It is remarkable how little we know *327 about what precisely the public wants from
the judiciary,390 but elected officials’ incentives may well cause them to react differently to
Court decisions than the public at large. Elected officials succeed in the long run by seeing their
policies adopted successfully.391 Court decisions that frustrate policy are thus likely to have a
more immediate impact on officials’ interests. Whether this is the reason or not, Caldeira and
Gibson report that “for many [opinion leaders], diffuse support behaves as if it were specific
support.”392

The critical question thus becomes how deep the Court’s diffuse support among the general public
is; for if theory holds, this is the leash on which the Court operates. Actually, a bungee cord
might be a better analogy; for, in operation, the diffuse support hypothesis suggests that the
judiciary can stray a certain distance from public opinion but that ultimately it will be snapped
back into line.393 Testing the length and flexibility of the cord is hard to do, however. It may be
that there is greater tolerance for judicial deviation in some directions, such as with regard to
the First Amendment.394

Although the Court’s degree of freedom of movement around public opinion may not be certain,
positive scholars are fairly confident that one major determinant is information. The dynamics here
are complex, but some generalities may be possible. Both negative and positive reactions to the
Court influence public opinion, but negative reactions seem to be more intense and have a shorter
half-life.395 Perhaps it is for this reason that the *328 less people hear about the Court, the
better for it.396 As time passes, people develop a store of good feelings about the Supreme Court,
reflected in the Court’s relatively strong performance in public mood indicators.397 Commentators
who have studied public opinion and the Court regularly advise it to keep a low profile.398

Because negative information, especially a steady flow of it, can decrease diffuse support, public
support for the judiciary is subject to manipulation. In banning cameras from its chamber and
announcing most of its controversial decisions each term in one fell swoop, the Court may (even if
unintentionally) be protecting its reputation and support. But vulnerability to information places
the Court somewhat at the mercy of policy entrepreneurs who wish to wield influence over it. By
publicizing the Court’s actions, one might muster challenges to judicial authority. This only
confirms what should be the prominence of the President in the separation-of-powers theory. To give
but one example, the first flag burning decision that created such a stir largely had dropped from
public notice, until then President Bush made much of it, reviving the issue and anti-Court
feeling.399

3. Normative Implications.--The normative implications of all this flow right to the heart of
normative theory about judicial review. One might be tentative in drawing conclusions simply
because the positive project here requires greater attention. Still, the connection between
positive and normative theory is not difficult to see.

At the least, the connection between popular support and judicial behavior has something to say
about the omnipresent countermajoritarian problem. If diffuse support suggests the public approves
of what the Court does--or at least approves of the practice of judicial review so long as it is
*329 exercised within certain limits--one might question: what is the problem precisely? Others
might demur, taking the theoretical position that even if the people decide to be ruled by a
monarch, there still is a problem of democratic government.400 That may be, but it is a notably
different problem than the one typically presented, and it equally calls into question numerous
other aspects of modern administrative governance (not to speak of, say, lame duck
presidencies).401

But normative issues run much deeper than this tired academic debate to the very heart of what it
is we can expect from judicial review. As indicated earlier, some see a threat in the practice,
others a hope. Ultimately, though, the extent to which either is the case is an empirical question.
Normative theory recognizes this, but only rarely. If public opinion is a constraint on judicial
behavior, then the work of positive scholars in this area starts to provide a window on exactly
what it is we can hope for--or fear from--judicial review. This could--and should--be the beginning
of a realistic theory of judicial review.402

                     IV. Integrating Law and Politics in Constitutional Theory

This final Part is about possibility. Positive scholarship unquestionably problematizes normative
constitutional theory about judicial review in important respects. At the same time, it signals new
directions and highlights difficult questions that, at present, receive insufficient attention from
normative scholars. This Part does three things. First, it synthesizes the body of positive
scholarship in order to sharpen its challenge to existing theories of judicial review, while making
clear the boundaries of positive claims. Second, it discusses what any useful theory of judicial
review must look like, in light of positive lessons. Finally, it explains how positive scholarship
opens up possibilities for constitutional theory well beyond the question of judicial review
itself. The point of this Part is not to offer an alternative theory of judicial review but to set
out the range of possibilities for normative theory in light of positive scholarship on judicial
behavior. There are theories of judicial review that take account of the positive literature,403
but one of the principal messages here is that developing such broad-gauge theories may not be the
best use of normative energy. Rather, positive scholarship highlights many specific aspects of the
actual practice of *330 judicial review and constitutional judging that are more deserving of
normative attention.

A. What Positive Scholarship Does and Does Not Claim

Positive scholarship calls into question critical elements of a story about judicial review that
has been told for a long time. In most normative theory, law and politics are to be kept separate.
This is accomplished by insisting on judicial independence from politics and by offering law as the
constraint on judicial behavior.

If positive scholarship is right, however, much of what is written in theory does not hold in
reality. Instead, restraint works in much the opposite direction. Even though judges might take law
seriously, it does not keep them from voting their own values, at least in some critical cases.
When judges face constraint, it often comes in the form of pressure from other institutions. The
decisions of courts are influenced by the institutional structure in which they are embedded. Law
and politics are thus integrated, albeit often in complicated and as yet incompletely understood
ways.

The challenge that positive scholarship poses to normative theory is serious enough that its claims
must be carefully qualified. To begin, positive theory is in many ways still in its infancy. The
strategic “revolution” is less than a decade old.404 The rough contours of positive theory likely
are correct; the theory makes plain sense and empiricism--even rough empiricism-- bears out much of
what theory suggests. But later work likely will show great refinement of basic positive claims.

Second, it is extremely important to emphasize that positive theory need not-- and typically does
not--deny the influence of law; it only raises questions about how much law serves to constrain
judges in the strict sense demanded by some normative theory. To be sure, occasional positive
theorists are cavalier about the role played by law,405 but to the extent this is true, that is
their failing. Many others recognize the prominence of doctrine and of legal discourse--the
significant hand law takes in shaping decisions.406 Legal commands undoubtedly influence the
decision of cases. Law plays a role, even if it cannot play the particular constraining role that
normative theory requires.

Third, for this reason positive scholarship also need say nothing about how judges and lawyers
should do their job on an everyday basis. It is perfectly appropriate that lawyers will and should
continue to argue cases in legal terms, and judges should continue to resolve them the same way. If
anything, positive theory invigorates debates about appropriate interpretive *331 methodology, if
only because the debates need not be shaped by the untenable claim that any particular theory
constrains judges from imposing their own values. Theories must now stand on some other bottom.

Finally, and in part a function of the early state of the work, positive theory leaves unspecified
the relative strength of the various influences on judges. Positive scholarship suggests that
judges are not constrained in some ways normative theory believes essential and that judges are
constrained in ways normative theory suggests they should not be. But positive theory is a long way
from defining with precision the spheres of autonomy and constraint, particularly given how
contextual--by case, by court, by judge--these are likely to be.

Despite these caveats, positive scholarship poses a challenge to normative theory. There are three
moving pieces here: law, attitudes, and politics. Unless law constrains judges sufficiently in all
cases--and it appears pretty clear this cannot be--then judicial attitudes are deciding cases or
judicial decisions are limited by the political and institutional forces described here. Yet there
is very little normative theory about judicial review that builds attitudinal freedom or political
constraint into the model. The challenge, then, is to develop an understanding of judicial review
that builds upon and incorporates positive understandings of how judges behave. The old ways won’t
do anymore.

B. New Theories of Judicial Review

In considering what new understandings of judicial review might look like, it is useful to specify
the demands positive scholarship places on normative theory. Attention to positive scholarship does
not deny an important role for thinking in normative terms, and perhaps not even in ideal ones.
Indeed, a central point here, discussed below, is that positive scholarship can be liberating for
normative theory. But the normative endeavor must play by some rules as well. Especially when it
specifies the operation of institutions, it must deal in the realm of the possible. The immutable
realities of the world are the parameters within which normative theory must operate. Ought does
imply can.

It may be useful to distinguish between theorizing about the substantive content of constitutional
meaning, particularly regarding constitutional rights, and theorizing about the process of judicial
review. Scholars apparently believe that it is useful to discuss judicially enforced rights in a
manner that is abstract from their implementation.407 The theory seems to be that, with *332 the
ideal in mind, we can at least struggle to reach it. Daryl Levinson argues that even in the realm
of rights--particularly judicially enforced ones--the separation of the ideal from the practical
may be an exercise not worth the candle. If the constraints on judicial implementation will always
be with us, then the true nature of the right must take that into account.408

Whatever the case when theorizing about substantive rights, it likely makes even less sense to
discuss the institution of judicial review in “ideal” terms, or at least the ideal terms typically
offered by normative theorists.409 It is inappropriate to insist that judges be constrained by law
and not impose their own values, absent evidence that law has the capacity to afford the constraint
demanded. Similarly, it is odd (to say the least) to demand that judges be entirely independent of
politics when the system itself so plainly makes the judiciary dependent upon majoritarian
institutions.410 It might be feasible to design things differently, but the federal judiciary is
not likely to receive an overhaul of this magnitude anytime soon. (Nor, for what it’s worth, does
making the judiciary elective--the one obvious change--typically earn much normative praise.) The
question is whether we condemn over two centuries of judging, or whether we confront the
possibility that the stated ideal has missed its own mark.411

What is needed is a realistic understanding of judicial review that takes into account the data
points about which we can be reasonably certain and that is fairly comprehensive in its
acknowledgement of all the forces that play upon constitutional judging. Specifying what this means
is relatively straightforward in light of the extended discussion in Part III. Theories of judicial
review must accept and find a role for a certain amount of “value-voting” because that is what is
going to happen. Such theories must acknowledge that constitutional law is a product of inevitable
compromise; absolutes are unlikely to hold sway here. This is certainly true in terms of collegial
decisionmaking by the Supreme Court itself, but it is true in many other ways as well.
Constitutional law must be understood as a product of bottom-up influence (from the lower courts)
and external pressure (from the *333 other branches). Constitutional law must be, as Richard Fallon
so forcefully reminds us, subject to implementation.412 And there must be recognition that, subject
to limited exceptions, the run of constitutional decisions--at least salient ones--typically must
fall somewhere within the range of public tolerance.

That it is possible to develop theories of judicial review cognizant of the political milieu in
which it operates is evident from the fact that, of late, several scholars have begun to do so,
offering an understanding of the institution of judicial review that acknowledges some or all of
the ways that politics bears upon it.413 The theories have a tentative air to them-- a healthy
thing given that we are still gaining a positive understanding of judicial review. But all
understand judicial review as entrenched in the world of ordinary democratic politics, yet still
apart from it.

The question then becomes: Is there a normatively appealing story that can be told about the
practice as it actually exists? Is there some value added in having a judiciary, even if it is
constrained in the ways described here? Countless pages have been written by normative scholars
regarding a system that bears faint comparison to the one that actually operates in this country.
It is time to assess the one we do enjoy and see how it stands up.

Answering the question tentatively, there may be a role for judicial review as it actually operates
and an attractive one at that. Indeed, it might be surprising if it were otherwise. The system we
have has endured a long time and is being emulated by many others.414 It is unlikely that judicial
review would find wide adoption were it not attractive on pragmatic grounds.

Judicial review can be understood as attractive precisely because it is embedded in politics, but
is not quite of it. Politics and law are not separate, they are symbiotic. It would be remarkable
to believe judicial review could operate entirely independent of politics or would be tolerated as
such. Nor is it clear that this would be desirable given social and constitutional commitments to
accountability and checks and balances. The practice of judicial review is valuable in that it
serves as one more counterweight, like many others in our constitutional system. Moreover, because
judicial decisions about constitutional law are sticky--they cannot be overturned at *334 the drop
of a hat415--judicial review serves to channel and foster societal debate about constitutional
meaning.416 Relatively insulated judges may go off on their own, but, in the face of extended
debate, Supreme Court decisions and public opinion ultimately come into some rough accommodation
with one another. It could not be otherwise. The system is dialogic and self-enforcing.417 It
creates continual exchange between constitutional meaning and popular opinion, though systemically
and at a remove.

This is a very different story than the one that has long been told about judicial review, but
perhaps an equally attractive one. It does not cast the judges as saviors, charged with standing
against popular will to enforce our fundamental values. At the same time, neither are judges some
strange antidemocratic force, wielding power over us without hope of control.418 Judicial review is
simply a practice that permits and yet focuses popular discussion over the meaning of the
Constitution, assisting us as a polity to reach decisions consistent with our deepest values.419

This is, it is to be emphasized, just one reading of the data points positive theory provides, one
assembly of the puzzle. There is far more to be theorized and understood. But what this sketch
shows is that a positive story can be told about judicial review, in both senses of the word. Warts
and all, this is a story about the system of judicial review that actually exists.

C. The Warp and Woof

Of course, what all this suggests is that broad-gauge thinking about the nature and function of
judicial review may be one of the least productive things normative scholars can do. Why is this?
Because the system is self-enforcing, and so much of it is determined by actual practice, broad
normative theory about judicial review may have little to contribute. Positive *335 theory frees up
constitutional scholars to devote their normative energies to more productive endeavors.

The first thing liberated normative scholars might do is simply be normative, in a substantive way,
without worrying about why it is that judges should feel free to implement scholars’ vision of a
just society. In a sense, normative scholars can and should see themselves as advocates for
constitutional change, as just one more social force acting on judges and the course of the law.420
That scholars are reluctant to do so is itself an artifact of the historical forces that demanded
the separation of law and politics. The emergence of this concern in the context of legal
scholarship was apparent during the Warren Court era when so much judicially initiated
constitutional change gave rise to an anxiety about the role of constitutional law and
constitutional judging in a democracy.421 Still, the veneer of neutrality in constitutional
scholarship and constant reference to the countermajoritarian problem simply distracts from a
perfectly legitimate project of constitutional advocacy.

Moreover, if anything is clear, it must be that judges may not be the best audience for such
normative scholarship. If judges are constrained by other institutions and public opinion, maybe
the better audience for normative scholarship is public opinion itself. The fact that so much of
normative scholarship is directed at the constitutional judge simply reflects, again, the
unrealistic need to separate law entirely from politics. Yet Justice O’Connor, who has been quite
candid in her recognition of the relationship between public opinion and legal change, is hardly a
flaming radical. Scholars ought to take her words to heart. If they have a constitutional agenda,
they ought to advance it to a broader audience. Popular constitutionalists eagerly urge the people
to take back the Constitution, but the people have always possessed it.422 Normative scholars ought
to speak prescription to power.

In the realm of legal practice, positive scholarship opens the door to many normative questions
that do not receive the attention they deserve. The questions are more fine-grained than “how do we
justify constitutional judging,” but the fields are more fertile for plowing. At present, normative
scholarship engages in assumptions about lower court behavior rather than thinking about the
perplexing problem of how lower court judges should behave.423 Because the judicial hierarchy is
not simply top-down and because what happens in the lower courts influences the direction of
constitutional law,424 guidance is needed about how lower court judges *336 should exercise the
interpretive liberty they enjoy. Similarly, interesting questions obviously exist about the bounds
of strategic conduct of members--such as Supreme Court Justices--on collegial courts.425 Beyond the
judiciary, the issue of how political actors should, or must, respond to judicial decisions is of
enormous consequence. There has been not nearly enough attention given to the prescriptive aspect
of compliance.

Positive scholarship also puts many doctrinal rules on the table, things typically taken for
granted. As Richard Fallon has explained, much of what we think of as constitutional law is about
implementing the decisions of constitutional judges in a world properly fraught with politics.426
Fallon demonstrates that the scope of constitutional remedies, the question of negative and
positive rights, and the force of stare decisis can all be understood as pragmatic reactions to the
political environment of judicial review.427 Once they are seen in that light, there are plenty of
oughts left on the table. For example, if the reluctance to announce positive rights is simply
because they are difficult for judges to implement, the ideal question itself is reframed.428 Ought
there to be certain positive rights in the Constitution? And can they be managed in a way that
implementation becomes possible?

Ironically, attention to the positive aspects of judicial review directs scholars to reinvigorate
attention to substantive doctrine. This is an important part of being normative. Doctrine is the
messy work of judges seemingly impervious to the higher calling of normative theory, and, in a
theory-obsessed world, legal scholars seem to have lost interest.429 But once the close connection
between doctrine and implementation is apparent, new ways of thinking about doctrine--the very
substance of constitutional law-- open up in ways that ought to capture the attention of legal
scholars. Doctrine, it turns out, is a juggling act, balancing normative ideals, practical
implementation, the realities of political trends, and the tendency of judges to *337 see things
their own way. Designing workable doctrine becomes a whole new challenge.

In sum, positive theory opens up a virtual playground for normative scholars in a field where at
least some of the central debates have become stultified. Once the relationship between politics
and law is brought into focus, once the idea of sharp separation is rejected, smaller grained
boundary lines become suddenly apparent everywhere. All these boundary lines are subject to
contest--contest that is part positive but part normative as well. Positive scholarship invigorates
the normative project. Rather than ignoring or rejecting positive scholarship, normative scholars
ought to grapple with it.

Footnotes

a1

Jacob D. Fuchsberg Professor of Law, New York University School of Law. Many people were generous
with their time in helping with this project. For the mistakes apparent here, I remain responsible.
For much of what is good, thanks are due to Michael Bailey, Jack Balkin, Rachel Barkow, Greg
Caldeira, Harlan Cohen, Frank Cross, Kristina Daugirdas, Brannon Denning, Michael Dorf, Ronald
Dworkin, Lee Epstein, Richard Fallon, John Ferejohn, Laura Fitzgerald, Charles Franklin, Carolyn
Frantz, Phil Frickey, Beth Garrett, Michael Gerhardt, Howard Gillman, Mark Graber, Chris Guthrie,
Anna Harvey, Deborah Hellman, Lewis Kornhauser, Larry Kramer, Jeff Lax, Maggie Lemos, Daryl
Levinson, Stefanie Lindquist, Forrest Maltzman, Andrew Martin, Mat McCubbins, Linda Meyer, Jon
Molot, Liam Murphy, Stacy Nyikos, Rick Pildes, Eric Posner, Richard Posner, Robert Post, Richard
Revesz, Glenn Reynolds, Lori Ringhand, Larry Sager, Fred Schauer, Jeff Segal, Seana Shiffrin, Reva
Siegel, Matt Stephenson, Peter Strauss, Nancy Staudt, Emerson Tiller, Mark Tushnet, Adrian
Vermeule, and Barry Weingast. Several research assistants labored beyond the call of duty,
including Harlan Cohen, Dana Kotowitz, Jane O’Brien, Kathleen O’Neill, and Julio Rios-Figueroa. The
Article profited from presentations at the NYU Summer Workshop; the NYU Faculty Workshop; the NYU
Colloquium on Law, Economics, and Politics; George Mason University School of Law; and the
USC-Caltech Conference on Modeling the Constitution.


1

See, e.g., Lawrence G. Sager, Justice in Plainclothes: A Theory of American Constitutional Practice
15 (2004) (“[J]udges are very important constitutional actors, and some of the most important
differences between competing accounts of our practice are the implications of those accounts for
the behavior of responsible judges.”); Pierre Schlag, Clerks in the Maze, 91 Mich. L. Rev. 2053,
2056 (1993) (“The judicial opinion and the judicial persona provide the implicit framing and
orientation for the presentation and elaboration of the ‘law’ of the academy.”). Even when
constitutional scholarship is intended for other audiences, a substantial part of it still is about
how judges ought to behave. See, e.g., infra note 63 (discussing literature urging Congress to
constrain judicial behavior).


2

See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 102-03 (1980) (urging
courts not to overturn legislative enactments unless they impede the process of political change or
evidence prejudice against discrete and insular minorities); Sager, supra note 1, at 7 (setting out
the standards for judicial review and the posture that the Court should take toward other
institutions).


3

Richard H. Fallon, Implementing the Constitution 2 (2001) (“In light of the well-known distinction
between ‘positive’ (or ‘descriptive’) and ‘normative’ theories, the questions of what the Court
does and what it should do might appear to be sharply distinct.”); Frank I. Michelman, Norms and
Normativity in the Economic Theory of Law, 62 Minn. L. Rev. 1015, 1031 (1978) (distinguishing
between “legal policy studies” and “explanatory studies of law,” a distinction that “roughly
parallels that which others have in mind when they distinguish between ‘normative’ and ‘positive’
studies”); Keith E. Whittington, Once More Unto the Breach: Post-Behavioralist Approaches to
Judicial Politics, 25 Law & Soc. Inquiry 601, 601 (2000) (book review) (noting that political
scientists have tended to focus on “identifying patterns of judicial voting behavior and the
determinants of Court decisions”).


4

See infra subparts III(A)-(B).


5

See infra notes 74-88, 101-08 and accompanying text.


6

See infra notes 404-18 and accompanying text.


7

But see Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1794-1801
(2005) (recognizing that constitutional “legitimacy” has sociological as well as moral and legal
components and analyzing the conjunction among them).


8

See infra notes 37-64 and accompanying text.


9

See infra notes 43-47, 288-99 and accompanying text.


10

See infra notes 50-59 and accompanying text.


11

See Keith Whittington, Crossing Over: Citation of Public Law Faculty in Law Reviews, 14 Law &
Courts 5, 5-10 (2004) (discussing complaints by political scientists that their work receives
insufficient attention from legal academics and providing citation analysis indicating that
political scientists have only a limited influence on the legal academy).


12

See, e.g., William N. Eskridge, Reneging on History? Playing the Court/Congress/President Civil
Rights Game, 79 Cal. L. Rev. 613, 641-64 (1991) (borrowing from positive political theory to
construct a game theoretic framework for thinking about the Congress-Court-President interaction in
the interpretation of civil rights statutes); Symposium, Positive Political Theory and Public Law,
80 Geo. L.J. 457 (1992) (exploring the implications of positive political theory for law).


13

See, e.g., Neal Devins, Explaining Grutter v. Bollinger, 152 U. Pa. L. Rev. 347, 347-48 (2003)
(exploring how social and political factors influenced the Rehnquist Court’s decisions on
affirmative action); William N. Eskridge & Philip P. Frickey, Foreword: Law as Equilibrium, 108
Harv. L. Rev. 26, 32 (1994) (explaining that “law” is the product of the interaction between--and
balancing of--competing institutional pressures); Daryl J. Levinson, Empire-Building Government in
Constitutional Law, 118 Harv. L. Rev. 915, 923-72 (2005) [hereinafter Levinson, Empire-Building]
(arguing that positive theory, an analysis of political pressures, is better at predicting
government behavior than the “self-aggrandizing” assumption of constitutional law); Daryl J.
Levinson, Rights Essentialism and Remedial Equilibration, 99 Colum. L. Rev. 857, 900 (1999)
[hereinafter Levinson, Rights Essentialism] (arguing that normative theories about constitutional
rights should not be separated from the positive realities of their remedial enforcement); Thomas
W. Merrill, The Making of the Second Rehnquist Court: A Preliminary Analysis, 47 St. Louis U. L.J.
569, 571-72 (2003) (applying positive theory to try to explain the shift in the direction of the
Rehnquist Court); Cass R. Sunstein & Adrian Vermeule, Interpretation and Institutions, 101 Mich. L.
Rev. 885, 886 (2003) (arguing that normative theories of legal interpretation should take greater
account of institutional capacities); Adrian Vermeule, Selection Effects in Constitutional Law, 91
Va. L. Rev. 953, 953-54 (2005) (explaining how legal and constitutional rules affect the types of
government officials who come to power); Adrian Vermeule & Ernest A. Young, Hercules, Herbert &
Amar: The Trouble with Intratextualism, 113 Harv. L. Rev. 730, 761-75 (2000) (applying
institutional analysis to constitutional interpretation); see also Maxwell Stearns, Constitutional
Process: A Social Choice Analysis of Supreme Court Decisionmaking (2000) (applying social choice
analysis to Supreme Court decisionmaking); Adrian Vermeule, The Judiciary is a They not an It:
Interpretive Theory and the Fallacy of Division, 14 J. Contemp. Legal Issues 549 (2005)
[hereinafter Vermeule, Interpretive Theory] (arguing that statutory interpretive theory must take
account of the collective nature of judicial bodies).


14

See Whittington, supra note 11.


15

See Deborah Hellman, The Importance of Appearing Principled, 37 Ariz. L. Rev. 1107, 1136 (1995)
(noting that many normative theories regard practical considerations to be “an illegitimate
infiltration of the non-legal into the legal”). For skepticism about ideal theory, see Richard A.
Posner, Conceptions of Legal Theory: A Response to Ronald Dworkin, 29 Ariz. St. L.J. 377, 381
(1997), which criticizes reliance on “ideal types” of courts and legislatures without interest in
“how a legal system actually works”; see also Eric Posner, Constitutional Possibility and
Constitutional Evolution 1 (2005) (unpublished manuscript, on file with author) [hereinafter
Posner, Possibility] (“The argument differs from most work in mainstream constitutional law...by
focusing on what is constitutionally possible rather than what is constitutionally desirable.”).


16

Ronald Dworkin, Law’s Empire 380 (1986).


17

Id.; cf. Sager, supra note 1, at 14 (claiming that “no account of constitutional practice can offer
itself as universal or ideal” but urging that we should “explain our practice to ourselves in a way
that will help us recognize its value and move in the direction of correcting its faults”).


18

Bradford R. Clark, Unitary Judicial Review, 72 Geo. Wash. L. Rev. 319, 333 (2003) (“[F]ederal
judges enjoy substantial independence from the political branches by virtue of constitutionally
mandated life tenure and salary protection.”); Suzanna Sherry, Judicial Independence: Playing
Politics with the Constitution, 14 Ga. St. U. L. Rev. 795, 800 (1998) (“From a textualist
perspective...it looks as if the Constitution deliberately creates a federal judiciary that is as
independent as possible of the political branches.”).


19

Bernard Bailyn, The Ideological Origins of the American Revolution 70-78 (1967); Gordon S. Wood,
Creation of the American Republic, 1776-1787, at 552 (1969); see also infra note 283 and
accompanying text.


20

The Federalist No. 78, at 465 (Alexander Hamilton) (Clinton Rossiter ed., 1961).


21

See infra notes 362-83 and accompanying text (discussing the influence of popular opinion on
judicial review). For an extended review of the historical relationship between politics, popular
opinion, and judicial review, see Barry Friedman, Neither Force Nor Will: How the Court Became
Supreme (forthcoming 2006) (tentatively titled).


22

See infra subpart III(B).


23

See infra subpart III(D).


24

See infra subpart III(C).


25

See Fallon, supra note 3, at 2 (“The product of evolution, the Court’s role reflects the Justices’
perceptions not only of the Court’s capacities, but also of the capacities of other institutions of
state and federal government.”); Tracey E. George, Developing a Positive Theory of Decisionmaking
on U.S. Courts of Appeals, 58 Ohio St. L.J. 1635, 1695 (1998) ( “[F]or normative theory to be
coherent, it must respond to what is actually going on, not merely what judges perceive themselves
to be doing....Normative theory uninformed by positive theory is built upon a foundation that is
inherently flawed....”); Levinson, Rights Essentialism, supra note 13, at 927 (criticizing
“rights-essentialist” theories as “remote from the actual practice of constitutional law, as
largely irrelevant and potentially misleading”); David A. Strauss, The Ubiquity of Prophylactic
Rules, 55 U. Chi. L. Rev. 190, 194-95 (1988) (discussing how judges “consider institutional
concerns when they apply the Constitution in specific cases”); Vermeule, Interpretive Theory, supra
note 13, at 581-82 (criticizing the “approximation assumption” that if an ideal is not attainable,
partial implementation is the second best).


26

Jack M. Balkin, What Brown Teaches Us About Constitutional Theory, 90 Va. L. Rev. 1537, 1576
(2004). Balkin continues: “We cannot know what we may reasonably expect from the institution of
[the] judiciary until we understand what is reasonably possible for it to do, and this means
understanding the forces that shape its decisionmaking.” Id.


27

See generally Fallon, supra note 3, at 2-5 (discussing the relationship between the practicalities
of implementing judgments and the many constitutional doctrines). In fact, although entirely
outside the scope of this Article, the positive approach to judicial behavior discussed here
deserves attention well beyond the bounds of constitutional theory. For examples in administrative
law, see generally Peter L. Strauss, Revisiting Overton Park: Political and Judicial Controls Over
Administrative Actions Affecting the Community, 39 UCLA L. Rev. 1251, 1254-60 (1992), which
evaluates the legitimacy of judicial review in the administrative law context, and Peter L.
Strauss, One Hundred Fifty Cases Per Year: Some Implications of the Supreme Court’s Limited
Resources for Judicial Review of Agency Action, 87 Colum. L. Rev. 1093 (1987) [hereinafter Strauss,
Implications], which discusses the relationship of the Supreme Court docket to central issues of
administrative law doctrine.


28

See infra notes 90-101 and accompanying text.


29

See infra notes 301-21 and accompanying text.


30

See infra notes 115-72 and accompanying text.


31

See infra notes 244-64 and accompanying text.


32

This point is more fully developed in Barry Friedman, Taking Law Seriously, 4 Persp. on Pol.
(forthcoming June 2006).


33

For development of this point, see id.


34

See Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model 64-65, 72-73
(1993) (noting that an implementation of the attitudinal model of decisionmaking does not use
precedent or plain language readings to limit the discretion of the courts).


35

See Whittington, supra note 3, at 608 (discussing neo-institutionalism).


36

See generally infra notes 85-87 and accompanying text.


37

Barry Friedman, The Turn to History, 72 N.Y.U. L. Rev. 928, 929-30 (1997) (book review).


38

See Letter from Thomas Jefferson to John Dickinson (Dec. 19, 1801), in 10 The Writings of Thomas
Jefferson 301, 302 (Albert Ellery Bergh ed., 1903) (referring to the fury of the Republicans upon
learning that the Federalists had “retired into the judiciary as a stronghold”); Larry D. Kramer,
The People Themselves: Popular Constitutionalism and Judicial Review 116 (2004) (“Faced with the
loss of the executive and legislative branches, the lame duck Federalist Congress acted quickly to
secure its adherents a sanctuary in the judiciary.”); Barry Friedman, The History of the
Countermajoritarian Difficulty, Part One: The Road to Judicial Supremacy, 73 N.Y.U. L. Rev. 333,
357-59 (1998) (describing how the Federalists “retreated to the judiciary” after losing control of
“both popularly elected branches of government”).


39

See 2 George Lee Haskins & Herbert A. Johnson, History of the Supreme Court of the United States,
Foundations of Power: John Marshall 1801-1815, at 151-63 (1981) (explaining that the debate
surrounding the repeal of the Circuit Judges Act largely turned on the controversial issue of the
role of the judiciary); William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial
Review 59 (2000) (arguing that Marshall’s Marbury decision was founded upon an attempt to
distinguish “between political matters, to be resolved by the legislative and executive branches in
the new democratic, majoritarian style, and legal matters, to be resolved by the judiciary”); 1
Charles Warren, The Supreme Court in United States History 215 (rev. ed. 1926) (highlighting the
debate surrounding the Repeal Act as the first major attack on judicial independence); Friedman,
supra note 38, at 363-67 (discussing the Federalist view of the impeachment as an attack on
judicial independence and the Republicans’ intent to use the impeachment power to remove judges
with anti-Republican viewpoints); Keith E. Whittington, Reconstructing the Federal Judiciary: The
Chase Impeachment and the Constitution, 9 Stud. Am. Pol. Dev. 55, 101 (1995) (asserting that “[t]he
Chase impeachment is perhaps most remembered as a battle over the independence of the judiciary”).


40

See generally Friedman, supra note 38, at 407-31 (describing clashes over roles of the judiciary
resulting from an acceptance of judicial supremacy).


41

See, e.g., Daniel A. Farber, Judicial Review and Its Alternatives: An American Tale, 38 Wake Forest
L. Rev. 415, 418 (2003) (arguing that after the Civil War, “judicial review by the Supreme Court
had no serious competitor”); Mark A. Graber, Naked Land Transfers and American Constitutional
Development, 53 Vand. L. Rev. 73, 77 (2000) (“The frequency with which Marshall and Taney Court
justices handed down opinions imposing constitutional limits on the federal government suggests
that judicial review of federal legislation was a fairly common practice before the Civil War.”).


42

See, e.g., Cong. Globe, 40th Cong., 2d Sess. 483 (1868) (statement of Rep. Bingham) (criticizing
the Court for “descend[ing] from its high place in the discussion and decision of purely judicial
questions to the settlement of political questions”); Political Questions in the Supreme Court,
Nation, Jan. 10, 1867, at 30 (arguing that “the chief duty of the [C]ourt...is to confine itself
strictly to the matter in hand, to decide the precise points before it, and to abstain rigidly from
the slightest discussion of political questions not necessarily involved”). But see also An
Important Decision, Little Rock Daily Gazette, Dec. 20, 1866, at 2 (praising the Court for “confin
[ing] themselves exclusively to the interpretation of the law without regard to the effect which
their decision will have upon the prospects of any political party”).


43

See Kramer, supra note 38, at 215 (noting that in the early decades of the twentieth century,
“courts made themselves a source of controversy by aggressively taking sides in the incipient class
conflict, and the propriety of the role they sought to create became one of the questions up for
grabs”); infra notes 44, 46.


44

See, e.g., 47 Cong. Rec. 3368 (1911) (statement of Sen. Owen) (urging that to allow popular
decisions “to be set aside by any tribunal not responsible to the people, not elected by the
people, not subject to the recall of the people, or of the people’s representatives, is to
establish a judicial oligarchy and to overthrow the Republic”); Gilbert G. Roe, Our Judicial
Oligarchy 197 (1912) (noting that some commentators accused judges of “using the great powers of
the judicial office to block and thwart the public will”); J. Allen Smith, The Spirit of American
Government 356 (photo. reprint 1965) (1907) (condemning the antidemocratic nature of the courts in
that “they can, and often do, defeat the will of the majority after it has successfully overcome
opposition in all other branches of the government”).


45

See Arnold M. Paul, Conservative Crisis and the Rule of Law: Attitudes of Bar and Bench, 1887-1895,
at 37, 92-96 (1960) (containing a variety of statements in support of judicial review).


46

See William E. Leuchtenburg, The Supreme Court Reborn 138-39 (1995) (“[T]he President...came out
with his primary reason [for the ‘court-packing’ plan]: that the Court was dominated by
conservative Justices who were making it impossible for a national government to function.”);
William H. Rehnquist, Judicial Independence, 38 U. Rich. L. Rev. 579, 593 (2004) (noting President
Roosevelt’s admission of “a franker justification” for the court-packing plan, that “the Supreme
Court as [then] constituted was frustrating the popular will by invalidating needed social
legislation”); Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523, 544 (2004) (
“Roosevelt wanted to expand the Court so that he could appoint enough new members to guarantee that
New Deal programs...would be upheld as constitutional.”).


47

See Leuchtenburg, supra note 46, at 216 (“In the spring of 1937...in the midst of the controversy
over President Roosevelt’s Court-packing message, the Court began to execute an astonishing
about-face.”); id. at 220 (“Beginning in 1937, the Supreme Court upheld every New Deal statute that
came before it.”); see also infra note 48 (discussing the dispute over the New Deal constitutional
change).


48

“‘Mr. Roosevelt has won. The court is now his....When a series of reinterpretations overturning
well-argued precedents are made in a brief time by a newly appointed group of judges, all tending
to indicate that same basic disagreement with the established conception of government, the
thoughtful observer can only conclude that something revolutionary is going on. And that is what
has happened here.”’ Leuchtenburg, supra note 46, at 155 (quoting Wendell L. Willkie, The Court Is
Now His, Saturday Evening Post, Mar. 9, 1940, at 71, 74). Revisionist scholars argue that critical
New Deal decisions were in line with prior precedent. See Barry Cushman, Rethinking the New Deal
Court: The Structure of a Constitutional Revolution 36-39 (1998) (arguing that the seeming change
in 1937 resulted from a gradual doctrinal shift and that earlier New Deal legislation was rejected
because of poor drafting); Richard D. Friedman, The Transformation in Senate Response to Supreme
Court Nominations: From Reconstruction to the Taft Administration and Beyond, 5 Cardozo L. Rev. 1,
93 (1983) (arguing that the Court had taken a liberal turn after Hoover’s appointments in 1930,
several years before the Court-packing crisis of 1937). The revisionist scholarship is altogether
of a piece with the legal academy’s intense desire to separate politics and law. Yet, even the
revisionists recognize the pace of change in the early 1940s. See Barry Cushman, A Stream of Legal
Consciousness: The Current of Commerce Doctrine from Swift to Jones & Laughlin, 61 Fordham L. Rev.
105, 106 (1992) (suggesting that the shift in Commerce Clause jurisprudence occurred principally
from 1941 to 1942, and not in 1937). Whether political threat influenced the direction of the law,
observers at the time plainly saw it that way. See Barry Friedman, The History of the
Countermajoritarian Difficulty, Part Four: Law’s Politics, 148 U. Pa. L. Rev. 971, 1050-53 (2000)
(describing the public perception that the Court had changed direction in response to the
Court-packing threat).


49

See Whittington, supra note 3, at 604 (“Behavioralist approaches to the study of law arose out of
the conjoined forces of the constitutional revolution of 1937....The heated disputes over the Court
in the 1930s emphasized the need to understand the Court as a political institution....”); see also
Nancy Maveety, The Study of Judicial Behavior and the Discipline of Political Science, in The
Pioneers of Judicial Behavior 1, 10-11 (Nancy Maveety ed., 2003) (discussing how Herman Pritchett’s
work on the Roosevelt Court from 1937 to 1947 “aligned judicial politics research with the then
current behavioral work in American politics”).


50

See Kramer, supra note 38, at 7 (“We in the twenty-first century tend to divide the world into two
distinct domains: a domain of politics and a domain of law.”).


51

Alexander M. Bickel, The Least Dangerous Branch 16 (1962).


52

See Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian
Difficulty, Part Five, 112 Yale L.J. 153 (2002) (explaining the genesis of scholarly obsession with
the countermajoritarian difficulty).


53

See, e.g., Charles L. Black, Jr., The People and the Court: Judicial Review in a Democracy 92-96
(1960) (arguing that judicial adherence to constitutional text will result in an appropriate degree
of judicial restraint in the form of judicial deference to acts of other branches); Robert H. Bork,
The Tempting of America 1-5, 143-46, 154-55 (1990) (arguing that without history as a constraint,
judges will utilize their own moral values when making decisions); Dworkin, supra note 16, at 378
(“Law as integrity condemns judicial activism, and any practice of constitutional adjudication
close to it. It insists that justices enforce the Constitution through interpretation, not
fiat....”); Ely, supra note 2, at 102 (arguing that the representation-reinforcing method of
constitutional interpretation “recognizes the unacceptability of the claim that appointed and
life-tenured judges are better reflectors of conventional values than elected representatives”);
Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 798 (1999) (describing the “virtue of
intratextualism and other forms of holistic textualism: their usefulness in constraining (or at
least highlighting) interpretive cheating”); Antonin Scalia, Originalism: The Lesser Evil, 57 U.
Cin. L. Rev. 849, 863-64 (1989) (arguing that originalism avoids “the main danger in judicial
interpretation of the Constitution...that the judges will mistake their own predilections for the
law”); David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877, 925-27
(1996) (noting that the common law method “has a centuries-long record of restraining judges” and
arguing that the common law method is the most effective way of restraining judges from imposing
their own will).


54

See, e.g., Bruce A. Ackerman, The Storrs Lectures: Discovering the Constitution, 93 Yale L.J. 1013,
1048-53 (1984) (relying upon the judiciary to distinguish between constitutional principle and
normal politics, thereby managing constitutional change on behalf of the people).


55

See Christopher L. Eisgruber, Constitutional Self-Government 58 (2001) (arguing that federal judges
are specially suited to handle “matters of principle” because of the “independence that comes with
life tenure”); Laurence H. Tribe, American Constitutional Law 583 (1978) (arguing that the function
of the judiciary “is to protect dissenters from a majority’s tyranny”); Thomas I. Emerson, Toward a
General Theory of the First Amendment, 72 Yale L.J. 877, 906 (1963) (acknowledging “the widespread
acceptance of judicial review in the United States as a crucial element in maintaining those
mechanisms of the democratic process which safeguard the rights of individuals and minorities
against the majority”); Michael J. Klarman, Rethinking the Civil Rights and Civil Liberties
Revolutions, 82 Va. L. Rev. 1, 1 (1996) (“It is common wisdom that a fundamental purpose of
judicial review is to protect minority rights from majoritarian over-reaching.”); Gerald N.
Rosenberg, Judicial Independence and the Reality of Political Power, 54 Rev. Pol. 369, 370 (1992)
(“For proponents of judicial activism, independence allows courts to avoid the prejudice and
shortsightedness to which elected officials sometimes succumb. Electorally unaccountable and
institutionally insulated, federal judges can preserve rights under attack.”).


56

See Charles Fried, Saying What the Law Is 70 (2004) (“The security of the citizen against arbitrary
power, whether presidential or bureaucratic, ultimately depends on the courts, and therefore
depends on the degree of independence--separation--of the judicial power from the rest of
government.”); Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural and
Institutional Defense of Judicial Power over Statutory Interpretation, 96 Nw. U. L. Rev. 1239, 1247
(2002) (“More important than whether judges serve as faithful agents of one political branch
vis-à-vis the other is that judges are structurally independent from both political branches of
government.”).


57

See Bork, supra note 53, at 1-5, 143-46, 154-55 (arguing that an originalist methodology can ensure
a constraint of judges that the rule of law requires); Dworkin, supra note 16, at 378 (“Law as
integrity...insists that justices enforce the Constitution through interpretation, not fiat....”);
Stephen B. Burbank, What Do We Mean by “Judicial Independence” ?, 64 Ohio St. L.J. 323, 326 (2003)
(“[W]e need law to constrain judges rather than judges to serve the rule of law.”); Howard Gillman,
What’s Law Got to Do with It? Judicial Behavioralists Test the ‘Legal Model’ of Judicial Decision
Making, 26 Law & Soc. Inquiry 465, 466 (2001) (“[I]t is...widely believed that the personal element
[of judging] is either checked, constrained, or filtered through distinctive professional
obligations and jurisprudential schools of thought.”).


58

See, e.g., Suzanna Sherry, Judges of Character, 38 Wake Forest L. Rev. 793, 793 (2003) (“Without a
theory of constitutional interpretation... there arises the fear that judicial review is...merely
the ad hoc implementation of the judges’ own values.”); David A. Strauss, The Role of a Bill of
Rights, 59 U. Chi. L. Rev. 539, 558 (1992) (“[T]he notion that judges who rely on moral arguments
are ‘imposing their own values’ is a familiar one. This notion does reflect a legitimate concern
about institutional competence.”); see also Robert H. Bork, Neutral Principles and Some First
Amendment Problems, 47 Ind. L.J. 1, 3 (1971) (“If [the Court]...merely imposes its own value
choices, or worse if it tends to have a theory but actually follows its own predilections, the
Court violates the postulates of the Madisonian model that alone justifies its power.”).


59

See, e.g., Ronald Dworkin, Taking Rights Seriously 85 (1977) (describing a theory based on the
distinction between “policy” decisions determined by political processes and judicial primacy over
matters of “principle”); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73
Harv. L. Rev. 1, 15 (1959) (“[T]he main constituent of the judicial process is precisely that it
must be genuinely principled....”). In addition to this “principle” versus “policy” distinction,
there is the concept of judicial “insulation.” See Dworkin, supra, at 85 (“A judge who is insulated
from the demands of the political majority whose interests the right would trump is, therefore, in
a better position to evaluate the argument.”); Jed Rubenfeld, Freedom and Time: A Theory of
Constitutional Self-Government 172 (2001) (“If constitutional commitments are not to give way to
governance by present political will, the power to interpret them must be assigned to a body
insulated from that will.”). There is also the notion of judicial “independence.” See Black, supra
note 53, at 49 (describing the first step in the creation of decisionmaking institutions as a grant
of independence from the policymaking branches of government); Eisgruber, supra note 55, at 58
(“Federal judges enjoy a singular advantage: the independence that comes with life tenure.”).
Finally, there is the idea that the Court should not be a “naked power organ.” See Phillip B.
Kurland, The Supreme Court and Its Judicial Critics, 6 Utah L. Rev. 457, 466 (1959) (“I suggest
that judicial activism should be rejected because the exercise of such naked power invites a reply
in kind from those on whose domain the Court is poaching.”); Wechsler, supra, at 19 (urging courts
to make principled decisions to avoid acting as “naked power organ[s]”).


60

See Jack M. Balkin & Sanford Levinson, Understanding the Constitutional Revolution, 87 Va. L. Rev.
1045, 1052-53 (2001) (criticizing the Supreme Court’s “systematic reappraisal of doctrines
concerning federalism, racial equality, and civil rights” and noting that the reappraisal came from
“this same bloc of five conservatives [who] handed the presidency to George W. Bush in Bush v.
Gore”); Rachel E. Barkow, More Supreme Than Court? The Fall of the Political Question Doctrine and
the Rise of Judicial Supremacy, 102 Colum. L. Rev. 237, 242 (2002) (critiquing the abandonment of
the historical sense of “political questions” evident in Bush v. Gore); Robert H. Bork, Federalist
Society Symposium, 13 J.L. & Pol. 513, 515 (1997) (“[C]ourts generally have been steadily changing
our culture and our society, and they have been doing so against the wishes of the American people.
It is and has been a mistake.”); Larry D. Kramer, The Supreme Court, 2000 Term--Foreword: We the
Court, 115 Harv. L. Rev. 4, 158 (2001) (criticizing the Court’s hegemonic approach evident in Bush
v. Gore and recent federalism decisions).


61

See, e.g., Kramer, supra note 38, at 7-8 (condemning the modern-day distinction between law and
politics as unfaithful to the “original conception of constitutionalism [and] its course over most
of American history”); Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section
Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943,
1981 (2003) (critiquing the Rehnquist Court’s use of the enforcement model on the grounds that it
“is misguided to believe that constitutional law can or should be hermetically insulated from
constitutional politics”); Robert C. Post, The Supreme Court, 2002 Term--Foreword: Fashioning the
Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 8 (2003) ( “[C]onstitutional law
and culture are locked in a dialectical relationship, so that constitutional law both arises from
and in turn regulates culture.”).


62

See infra notes 335-37 and accompanying text.


63

See, e.g., Kramer, supra note 38, at 249 (suggesting that the political branches should utilize the
fact that “[t]he Constitution leaves room for countless political responses to an overly assertive
Court”); see also infra notes 338-41 (discussing scholarly calls for congressional action).


64

See infra notes 338-41 and accompanying text; see also Barry Friedman & Anna L. Harvey, Electing
the Supreme Court, 78 Ind. L.J. 123, 125 (2003) (suggesting that the political branches are not
attempting to curb the Court because they “[do] not disagree on the merits with what the Court is
doing”).


65

See Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does),
3 Sup. Ct. Econ. Rev. 1, 1 (1993) (presenting a “positive economic theory of judicial behavior”);
see also Richard A. Posner, Overcoming Law 135-44 (1993) (modeling judicial utility as a function
of leisure, income, reputation, popularity, prestige, and avoiding reversal); Lawrence Baum, What
Judges Want: Judges’ Goals and Judicial Behavior, 47 Pol. Res. Q. 749, 760 (1994) (“Judges hold a
multiplicity of goals that are potentially relevant to their behavior as judges, and different
judges have different hierarchies of goals.”); Frank B. Cross, Political Science and the New Legal
Realism: A Case of Unfortunate Interdisciplinary Ignorance, 92 Nw. U. L. Rev. 251, 302 (1997)
(surveying scholarship on judicial motivations).


66

Lewis A. Kornhauser, Modeling Collegial Courts I: Path-Dependence, 12 Int’l Rev. L. & Econ. 169,
169 (1992) (“[T]he inability to identify a plausible objective function to impute to judges has
frustrated economic analysis from the outset.”); Sidney A. Shapiro & Richard E. Levy, Judicial
Incentives and Indeterminacy in Substantive Review of Administrative Decisions, 44 Duke L.J. 1051,
1054 (1995) (“Social choice theory has had some difficulty accounting for judicial behavior because
the judiciary has been structured to sharply reduce the self-interested motivations typically
identified with other political actors (e.g., financial rewards, promotion, reelection).”); see
also Richard A. Epstein, The Independence of Judges: The Uses and Limitations of Public Choice
Theory, 1990 BYU L. Rev. 827, 827 (advancing the argument that public choice predictors do not work
as well with judicial actors as with legislative officials).


67

See Shirley S. Abrahamson, The Ballot and the Bench, 76 N.Y.U. L. Rev. 973, 981 (2001) (arguing
that proper judicial decisions “should be based on determinations of the evidence and the law”);
Matthew J. O’Hara, Note, Restriction of Judicial Election Candidates’ Free Speech Rights after
Buckley: A Compelling Constitutional Limitation?, 70 Chi.-Kent L. Rev. 197, 197 (1994) (“The notion
of an independent, impartial judiciary that decides cases based on their factual and legal merits,
and not on any other considerations, is fundamental to our common law tradition.”).


68

See infra notes 84-88 and accompanying text (discussing judges’ preferences as motivating factors).


69

See Posner, supra note 65, at 140 (citing as a key component in judicial utility the amount of
leisure time judges have in relation to the possible leisure time they would have in possible
alternative employment); Epstein, supra note 66, at 837-38 (noting that the combination of federal
judges’ fixed salaries and life tenure may foster an attempt to maximize leisure time by minimizing
the time and effort that they expend on making judicial decisions).


70

See, e.g., Posner, supra note 65, at 140-41 (including reputation in his answer to the question of
what judges attempt to maximize when deciding cases); Thomas J. Miceli & Metin M. Cosgel,
Reputation and Judicial Decision-Making, 23 J. Econ. Behav. & Org. 31, 35-37 (1994) (building and
testing a model of judicial behavior that includes reputation and self interest as its
determinants); Frederick Schauer, Incentives, Reputation, and the Inglorious Determinants of
Judicial Behavior, 68 U. Cin. L. Rev. 615 (2000) (focusing on reputation as a motivation of Supreme
Court Justices and suggesting that peer group esteem might motivate lower court judges).


71

See infra section III(A)(2) (arguing that it is likely that a judge’s decisionmaking is, at the
very least, influenced by personal ideology and preference, and in certain cases, based directly
upon it).


72

See Mark A. Cohen, Explaining Judicial Behavior or What’s “Unconstitutional” About the Sentencing
Commission?, 7 J. L. Econ. & Org. 183, 193 (finding that judges that were more likely to be
promoted to an appeals court were more likely to rule the Sentencing Guidelines constitutional);
Andrew P. Morriss et al., Signaling and Precedent in Federal District Court Opinions, 13 Sup. Ct.
Econ. Rev. 63, 92 (2005) (finding that federal judges were more likely to write an opinion in
Sentencing Guidelines cases as their likelihood of being promoted to the circuit court of appeal
increased); see also Stephen Choi & Mitu Gulati, A Tournament of Judges?, 92 Cal. L. Rev. 299, 315
(2004) (noting that lower court judges may face incentivesto write “opinions designed to attract
the approval” of those in power).


73

The definition distinguishes, for example, any examination of bribery or corruption. Unlike the
considerations discussed here, bribery is never considered appropriate behavior. In any event, such
corruption is relatively rare in the United States. See Walter F. Murphy, Elements of Judicial
Strategy 5 (1964) (providing this reason for his decision not to examine bribery or other unlawful
influences on the Supreme Court).


74

See supra note 58 (discussing sources condemning decisionmaking based on the “judges’ own values”);
see also Lewis A. Kornhauser & Lawrence G. Sager, Unpacking the Court, 96 Yale L.J. 82, 84 n.3
(1986) (“Most jurisprudential theories of adjudication consider adjudication, at least implicitly,
to be the rendering of a judgment rather than the expression of a judicial preference.”).


75

See generally Segal & Spaeth, supra note 34 (presenting and testing the premise that judges are
primarily motivated by their ideological beliefs); Jeffrey A. Segal & Harold J. Spaeth, The Supreme
Court and the Attitudinal Model Revisited (2002) [hereinafter Segal & Spaeth, Revisited] (updating
and expanding the analysis from their 1993 work); see also Gillman, supra note 57, at 494
(assessing the attitudinal model’s value).


76

Segal & Spaeth, Revisited, supra note 75, at 86.


77

Perhaps, more accurately, it is “post-dictive” rather than predictive; attitudinalists’ models
typically have as their dependent variable votes that already have been cast. Cf. Theodore W. Ruger
et al., The Supreme Court Forecasting Project: Legal and Political Science Approaches to Predicting
Supreme Court Decisionmaking, 104 Colum. L. Rev. 1150 (2004) (using a computer model of Supreme
Court decisionmaking to predict outcomes of cases before they were decided during the 2002 term).


78

See, e.g., Elaine Martin & Barry Pyle, State High Courts and Divorce: The Impact of Judicial
Gender, 36 U. Tol. L. Rev. 923, 939 (2005) ( “[F]emale justices [on state high courts] tend to
support female litigants in divorce cases....”); Gregory C. Sisk et al., Charting the Influences on
the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 N.Y.U. L. Rev. 1377, 1453, 1457
(1998) (finding that neither gender nor race had a significant effect on district court decisions
on the constitutionality of the federal sentencing guidelines in 1988); Kenneth Luis Manning, ¿Cómo
Decide?: Decision-Making by Latino Judges in the Federal Courts 1 (1998) (unpublished manuscript,
on file with author) (“[E]ven when controlling for partisanship, region, and gender, Latino judges
were more likely to hand down a conservative decision in criminal justice and civil liberties cases
than their non-Latino counterparts.”).


79

Note, however, that the attitudinal model predicts the direction of judicial votes but not
necessarily case outcomes. See Ruger et al., supra note 77, at 1186 (“[R]esort to simple
attitudinal assumptions will help predict the votes of some Justices but not others, and not those
who matter most for outcomes.”).


80

Frank B. Cross & Blake J. Nelson, Strategic Institutional Effects on Supreme Court Decisionmaking,
95 Nw. U. L. Rev. 1437, 1445 (2001); see also Donald R. Songer & Stefanie A. Lindquist, Not the
Whole Story: The Impact of Justices’ Values on Supreme Court Decision Making, 40 Am. J. Pol. Sci.
1049, 1049 (1996) (“A half century of empirical scholarship has now firmly established that the
ideological values and the policy preferences of Supreme Court justices have a profound impact on
their decisions in many cases.”).


81

Segal & Spaeth, Revisited, supra note 75, at 316-19 (finding that ideology correctly predicts 76%
of Justices’ votes in search and seizure cases from 1962 to 1998); id. at 324 (“Spaeth was able to
predict accurately 88 percent (92 out of 105) of the Court’s decisions between 1970 and 1976 and 85
percent of the Justices’ votes.”); Jeffrey A. Segal & Albert D. Cover, Ideological Values and the
Votes of U.S. Supreme Court Justices, 83 Am. Pol. Sci. Rev. 557, 561 (1989) (finding that ideology
explains 80% of Justices’ votes in civil liberties cases between 1953 and 1988); Jeffrey A. Segal
et al., Ideological Values and the Votes of U.S. Supreme Court Justices Revisited, 57 J. Pol. 812,
820 (1995) (stating that ideology predicts 69% of civil liberties votes and 56% of economic votes
from 1946 to 1992).


82

Jeffrey A. Segal, Supreme Court Justices as Human Decision Makers: An Individual-Level Analysis of
the Search and Seizure Cases, 48 J. Pol. 938, 939 (1986).


83

See infra notes 231-43 and accompanying text.


84

Whittington, supra note 35, at 608 (referring to recent essays by positive scholars moving beyond
the attitudinal project in noting that “none of them suggests that judges are not policymakers or
that they are not, to some degree, influenced by their own ideological predispositions”); see also
Howard Gillman & Cornell W. Clayton, Introduction to Supreme Court Decision-Making: New
Institutionalist Approaches 1, 3 (Cornell W. Clayton & Howard Gillman eds., 1999) (“There is no
reason to take issue with the observation that Supreme Court justices act in ways that reflect who
they are and what they believe.... [However,] different contexts make it more or less possible for
individuals to act on different sets of beliefs.”).


85

Whittington, supra note 3, at 618.


86

Id. at 612.


87

Id.


88

See, e.g., Patricia M. Wald, A Response to Tiller and Cross, 99 Colum. L. Rev. 235, 236 (1999) (“I
register something of a ho-hum reaction to the notion that judges’ personal philosophies enter into
their decisionmaking when statute or precedent does not point their discretion in one direction or
constrain it in another.”); Norman Dorsen, Book Review, 95 Harv. L. Rev. 367, 383 (1981)
(explaining that it is “hardly a cause for wonder” that a judge would let values inform
constitutional decisions and stating that “[c]onstitutional adjudication, when not controlled by
text or precedent, inevitably forces a judge to resort to personal philosophy and values”).


89

There have been notable attempts. See Tracey E. George & Lee Epstein, On the Nature of Supreme
Court Decision Making, 86 Am. Pol. Sci. Rev. 323 (1992) (testing, with some success, an integrated
model of Supreme Court decisionmaking that includes both political and environmental forces, along
with doctrinal constraints); Herbert M. Kritzer & Mark J. Richards, Jurisprudential Regimes and
Supreme Court Decisionmaking: The Lemon Regime and Establishment Clause Cases, 37 Law & Soc. Rev.
827, 829-38 (2003) (finding striking support that the “Lemon test” of Lemon v. Kurtzman influences
outcomes); Mark J. Richards & Herbert M. Kritzer, Jurisprudential Regimes in Supreme Court Decision
Making, 96 Am. Pol. Sci. Rev. 305 (2002) (finding strong statistical evidence that the
content-neutrality criterion established in Grayned v. Rockford exerts a powerful influence on how
subsequent freedom of expression cases are decided); Edward P. Schwartz, Policy, Precedent, and
Power: A Positive Theory of Supreme Court Decision-Making, 8 J.L. Econ. & Org. 219 (1992) (modeling
the Supreme Court Justices as having preferences not just over policy outcomes but also over the
level of precedent set by a particular case).


90

But see Segal & Spaeth, supra note 34, at 363 (“The inability of the legal model to explain and
predict decisions reduces its utility to normative rationalization....”); Segal & Spaeth,
Revisited, supra note 75, at 85 (“To the extent that the doctrine of stare decisis is falsifiable,
it also turns out to be false.”).


91

See Lee Epstein & Jack Knight, The Norm of Stare Decisis, 40 Am. J. Pol. Sci. 1018, 1033 (1996)
(finding evidence that the norm of precedent affects the “nature and substance of the legal rules
established by the Court”); Richards & Kritzer, supra note 89, at 315 (examining written Supreme
Court opinions and finding that key precedents influence the development of the law).


92

See infra notes 222-24 for a full discussion of law’s influence in the lower courts.


93

See Saul Brenner & Marc Stier, Retesting Segal and Spaeth’s Stare Decisis Model, 40 Am. J. Pol.
Sci. 1036, 1043 (1996) (reanalyzing the votes of Justices Clark, Harlan, Stewart, and White, but
including memo decisions left out in the original study, and finding that precedents ruled 47% of
their decisions); Songer & Lindquist, supra note 80, at 1061 (finding that “the justices appear to
cast more than three-fourths of their votes in favor of precedent” when summary cases are
included); Linda M. Merola, The Influence of Stare Decisis on the Votes of United States Supreme
Court Justices: A Second Look 18 (2004) (unpublished manuscript, on file with author) (reanalyzing
Segal and Spaeth’s data and finding that precedent controlled 58.9% of the time when adherence to
precedents is operationalized to take account of dissents that themselves followed precedents).


94

See Youngsik Lim, An Empirical Analysis of Supreme Court Justices’ Decision Making, 29 J. Legal
Stud. 721, 723 (2000) (“If a justice participated in the decision of a precedent applicable to a
current case, her present decision should be affected by her past decision.”); Maggie Lemos,
Constraint Within the Attitudinal Model of Supreme Court Decision-Making: A Case Study of Justice
Scalia and the Fourth Amendment 9 (2001) (unpublished manuscript, on file with author) (“The
Justices may feel constrained to decide cases in accordance with the same legal reasoning on which
they relied in similar prior cases, pretextual as it may have been in the first instance.”);
Merola, supra note 93, at 13 (“A justice may disagree with the majority’s interpretation of
precedent....In a progeny case, this justice may continue to dissent...with the valid argument that
stare decisis, itself, mandates that he or she not join the majority.”).


95

Even positive scholars on both sides of the “does law matter?” divide sometimes miss the point
here. Some overstate the demands of constraint. For example, Segal and Spaeth engaged in an
extensive study to show that precedent does not constrain Supreme Court Justices. Jeffrey A. Segal
& Harold J. Spaeth, Majority Rule or Minority Will: Adherence to Precedence on the U.S. Supreme
Court (1999). Though their approach yielded many interesting results, it tested a notion of
constraint far more stringent than normative theory would require. See Gillman, supra note 57, at
482-83 (“[B]ecause the principle of stare decisis is not normally understood to mean that
dissenting justices gravitate toward the position held by the majority of their colleagues, very
few legalists would consider this research an appropriate test of either precedent or legal
influences.”) (citation omitted). Others, however, understate the implications of attitudinal
findings. Scholars such as Jack Knight and Lee Epstein suggest that attitudinal studies might prove
little because of the problem of behavior equivalence: as presently configured, attitudinal studies
simply do not tease out whether judges’ votes exhibit fidelity to that judge’s notion of the law or
naked ideology. Lee Epstein & Jack Knight, The Choices Justices Make 57 (1998). While separating
law from attitudes in this way may be instructive, it is unnecessary to do so before concluding
that the constraint sought by normative theory is absent.


96

See supra notes 75-83 and accompanying text.


97

Epstein & Knight, supra note 95, at 57.


98

See, e.g., Segal & Spaeth, supra note 95.


99

See supra notes 50-59 and accompanying text.


100

See, e.g., Nancy C. Staudt, Modeling Standing, 79 N.Y.U. L. Rev. 612, 667 (2004) (“[I]t should give
[constitutional] theorists pause to see that politics is the best predictor of Supreme Court
outcomes.”). The phrase “value-voting” is Terri Peretti’s, and she does attempt a theory that
incorporates it. See Terri Jennings Peretti, In Defense of a Political Court 101-11 (1999).


101

See Byron J. Moraski & Charles R. Shipan, The Politics of Supreme Court Nominations: A Theory of
Institutional Constraints and Choices, 43 Am. J. Pol. Sci. 1069, 1071 (1999) (“Given the Court’s
key role in setting public policy, the president will want a Court that shares his ideology and
thus will nominate someone who will bring the Court closer to his preferences.”); Cass R. Sunstein
et al., Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 Va. L.
Rev. 301, 303 (2004) (“It is reasonable to hypothesize that as a statistical regularity, judges
appointed by Republican presidents...will be more conservative than judges appointed by Democratic
presidents.”).


102

Originally scholars divined ideology from Justices’ votes and then used the measures to predict the
same votes, a problem of obvious circularity. See Segal & Spaeth, supra note 34, at 221-22
(discussing examples of work using this method and pointing out its flaws). The improvement was to
identify a measure of ideology from past votes and then use the measure to predict later ones. This
method gives rise to a claim of behavioral equivalence, as it is impossible to tease out “ideology”
from a judge’s understanding of the law. Another solution was to create a measure of ideology from
newspaper editorials at the time of a Justice’s nomination. Segal and Cover pioneered this project
and so they are generally called Segal-Cover scores. Segal & Cover, supra note 81; see also Segal
et al., supra note 81 (backdating and updating the scores). This method, while commonly used, is
rife with difficulty: The scores for roughly one-third of the Justices are based on four or fewer
editorials, with three Justices classified on the basis of only two. See id. at 814 (listing the
number of editorials used to classify each Justice). There is no reason to believe that the
editorialists are neutral observers of a nominee’s ideology; moreover, this method is likely to be
applicable only to Supreme Court Justices or perhaps D.C. Circuit judges. See Richard L. Revesz,
Ideology, Collegiality, and the D.C. Circuit: A Reply to Chief Judge Harry T. Edwards, 85 Va. L.
Rev. 805, 824 n.102 (1999) (“Because the measure of ideology was constructed from newspaper
editorials about the nominee...this methodology is unlikely to be usable for court of appeals
judges, whose nominations typically receive less media attention.”). A recent novel project maps
the Justices and other political actors in a common ideological space by using a variety of factors
as bridges. These “common space” measures, which receive greater attention below, are promising but
still do not solve the problem of behavioral equivalence and are a bit new to assess with complete
confidence. See Michael Bailey & Kelly H. Chang, Comparing Presidents, Senators, and Justices:
Interinstitutional Preference Estimation, 17 J.L. Econ. & Org. 477 (2001) (developing a method to
place Supreme Court Justices, both houses of Congress, and the President in a single ideological
space by using the President’s preferences as a key reference point); Andrew D. Martin & Kevin M.
Quinn, Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court,
1953-1999, 10 Pol. Anal. 134 (2002) (employing a new synthesis of Bayesian probability and Markov
chain Monte Carlo methods to trace the ideological preferences of Supreme Court Justices).


103

See Lim, supra note 94, at 730 (“[T]his method might be too naïve to capture Justices’ ideologies
issue by issue. Another problem with the measure is that Justices’ ideologies are assumed to be
invariant over time.”); Donald R. Songer & Susan Haire, Integrating Alternative Approaches to the
Study of Judicial Voting: Obscenity Cases in the U.S. Courts of Appeals, 36 Am. J. Pol. Sci. 963,
976-77 (1992) (finding that some Presidents--particularly Johnson, Carter, and Reagan--were
especially sensitive to ideology in judicial appointments, while others were not); see also infra
note 104 (discussing the Senate’s influence).


104

More complex models take account of other factors such as the partisan makeup of the Senate, which
must confirm presidential nominees. The Senate has an ameliorating influence on presidential
appointments, but the exact extent of that influence has been difficult to capture with certainty,
no doubt because the nature of senatorial-presidential interaction has shifted over time in
response to the others’ actions. See Lee Epstein & Gary King, The Rules of Inference, 69 U. Chi. L.
Rev. 1, 89 (2002) (“[Presidential appointment] neglects an important institutional feature of the
appointment process--namely, senatorial courtesy--that may have the effect of constraining the
President from nominating a candidate...who mirrors his ideology.”); Micheal W. Giles et al.,
Picking Federal Judges: A Note on Policy and Partisan Selection Agendas, 54 Pol. Res. Q. 623,
628-29 (2001) (arguing that the President’s ideology alone is too blunt an instrument for
predicting how judges will vote and advocating instead the use of the appointing President’s
ideology if senatorial courtesy is not in force and the senator’s ideology if it is). But see Susan
W. Johnson & Donald R. Songer, The Influence of Presidential Versus Home State Senatorial
Preferences on the Policy Output of Judges on the United States District Courts, 36 Law & Soc. Rev.
657, 666 (2002) (expecting to find “that the practice of senatorial courtesy might lead to judicial
appointments consistent with the views of home state senators” but discovering that “presidential
preference is more than twice as influential as home state senatorial preferences”).


105

See supra notes 77-81 (describing results from empirical tests of the attitudinal model); see also
Epstein, supra note 66, at 838, 844-45 (recognizing that judges’ decisions will be “heavily
influenced by the intellectual orientation and political inclinations that they brought with them
to the bench” but accepting nonetheless the checking function of judicial review); Richard L.
Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 Va. L. Rev. 1717, 1765-69
(1997) (identifying the ideology of judges based on the party affiliation of the appointing
President and predicting votes in environmental cases accordingly); C.K. Rowland & Bridget Jeffery
Todd, Where You Stand Depends on Who Sits: Platform Promises and Judicial Gatekeeping in the
Federal District Courts, 53 J. Pol. 175, 177-78 (1991) (coding courts according to the party of the
appointing President); Emerson H. Tiller & Frank B. Cross, A Modest Proposal for Improving American
Justice, 99 Colum. L. Rev. 215, 218 (1999) (discussing partisan judicial appointments by Presidents
and the resultant ideological makeup of the judiciary).


106

See Balkin & Levinson, supra note 60, at 1049-50 (advancing the theory of partisan entrenchment);
Mark Tushnet, Foreword: The New Constitutional Order and the Chastening of Constitutional
Aspiration, 113 Harv. L. Rev. 29, 65-66 (1999) (advancing a theory relying on irregularly timed
appointments); see also Terri Peretti, A Normative Appraisal of Social Scientific Knowledge
Regarding Judicial Independence, 64 Ohio St. L.J. 349 (2003) (developing a normative theory of
judicial activity rooted in social science findings of ideological judicial voting and limited
judicial independence).


107

Balkin & Levinson, supra note 60, at 1067-68.


108

See supra notes 50-59 and accompanying text; infra notes 284-92 and accompanying text.


109

See David W. Rohde & Harold J. Spaeth, Supreme Court Decision Making 172 (1976) (“The Opinion of
the Court is the core of the policy-making power of the Supreme Court.”).


110

Epstein & Knight, supra note 95, at 96 (discussing the strategic decisions that Justices make to
reflect the preferences of their colleagues when writing opinions); Forrest Maltzman et al.,
Crafting Law on the Supreme Court: The Collegial Game 15 (2000) (“Perhaps the most important
institutional feature of the Court is its collegial character.”); Jeffrey R. Lax & Charles M.
Cameron, Beyond the Median Voter: Bargaining and Law in the Supreme Court (July 20, 2005)
(unpublished manuscript, on file with author) (developing a model that shows bargaining influence
on the outcome of opinions).


111

See, e.g., Segal & Spaeth, supra note 34, at 360 (“[T]he justices are not completely free
agents....[A] plurality may not render an opinion of the Court; four justices may not overrule
five....”); see also Maltzman et al., supra note 110, at 10-11 (“Indeed, even Harold Spaeth, the
scholar most closely associated with the attitudinal model, has noted that ‘opinion coalitions and
opinion writing may be a matter where nonattitudinal variables operate.”’) (citation omitted).


112

Maltzman et al., supra note 110, at 5 (“Political scientists who study judicial process and
politics tend to focus on the disposition of cases, because that is where the most readily
available data exist.”); see also Ruger et al., supra note 77, at 1152-53 (quoting Spaeth, a
leading advocate of the attitudinal model, in regards to an exchange with Mendelson, a critic: “‘I
find the key to judicial behavior in what the justices do, Professor Mendelson in what they say. I
focus upon their votes, he upon their opinions.”’) (citation omitted).


113

Among the small number of articles on the subject are: Evan H. Caminker, Sincere and Strategic
Voting Norms on Multimember Courts, 97 Mich. L. Rev. 2297, 2312-33 (1999) (exploring how
multimember decisionmaking on the Supreme Court leads to opportunities and incentives for strategic
behavior--and vote trading, in particular); Kornhauser, supra note 66, at 170 (modeling the
decision of a single judge and examining how the process changes when additional judges are added
to a decisionmaking process); Lewis A. Kornhauser, Modeling Collegial Courts II: Legal Doctrine, 8
J.L. Econ. & Org. 441, 451-53 (1992) [hereinafter Kornhauser, Legal Doctrine] (showing that whether
collegial courts adjudicate on a case-by-case basis or on an issue-by-issue basis influences the
outcome of individual cases and the development of legal doctrine); Lewis A. Kornhauser & Lawrence
G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 Cal. L. Rev. 1, 56-59 (1993)
[hereinafter Kornhauser & Sager, The One and the Many] (discussing how different mechanisms of
decisionmaking on multimember courts affect outcomes); Kornhauser & Sager, supra note 74, at 102-16
(exploring the impact of multiple membership on consistency and coherence in judicial decisions);
Richard L. Revesz & Pamela S. Karlan, Nonmajority Rules and the Supreme Court, 136 U. Pa. L. Rev.
1067, 1068 (1988) (examining how the Supreme Court’s internal rules affect decisionmaking);
Vermeule, Interpretive Theory, supra note 13, at 550 (reviewing widely debated approaches to
statutory and constitutional interpretation and arguing that these approaches “commit the
fundamental mistake” of failing to take into account the collective nature of the judiciary).


114

See Caminker, supra note 113, at 2298 (“[Legal scholars] have paid insufficient attention to the
ways in which the vote of each individual judge is influenced by the views of her colleagues on a
multimember court.”); Kornhauser & Sager, supra note 74, at 82 (“Traditional theories of
adjudication are curiously incomplete....Judging is treated as though it were a solitary act....The
real world of adjudication, though, differs dramatically.”); Kornhauser & Sager, The One and the
Many, supra note 113, at 2 (“Judges have been largely unreflective about the nature of their
collegial relationships and responsibilities....”); Vermeule, Interpretive Theory, supra note 13,
at 550 (noting that many interpretive arguments “commit the fundamental mistake of overlooking the
collective character of judicial institutions”).


115

The size of the Court has varied over time. See, e.g., Barry Friedman, The History of the
Countermajoritarian Difficulty, Part II: Reconstruction’s Political Court, 91 Geo. L.J. 1, 38-40
(2002).


116

See Mark Tushnet, A Court Divided: The Rehnquist Court and the Future of Constitutional Law 35
(2005) (describing how Justice Brennan would ask clerks what is the “most important rule in
constitutional law”; he would then hold up his hand to show five fingers).


117

See Caminker, supra note 113, at 2321 (“Unanimity establishes a very durable judicial precedent,
and it may elicit greater respect from nonjudicial actors....” (citations omitted)); Jed Handelsman
Shugerman, A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court, 37 Ga. L. Rev.
893, 909-31 (2003) (documenting the strategies employed by various Courts to achieve unanimity as a
way of establishing stronger precedents).


118

This is as good a place as any to acknowledge Lee Epstein and Jack Knight’s Choices Justices Make,
supra note 95, a foundational work on the role of strategic behavior in Supreme Court
decisionmaking. Building upon Walter Murphy’s Elements of Judicial Strategy, supra note 73, Epstein
and Knight moved the project forward by providing falsifiable hypotheses, and by engaging in truly
back-breaking review of the Justices’ papers, demonstrating what empirical work of this sort could
reveal.


119

See Epstein & Knight, supra note 95, at 12-14 (defining strategic behavior as judicial behavior
undertaken to further one’s sincere preferences, given the preferences and strategies of all the
other decisionmakers whose actions will influence the ultimate policy outcome).


120

See Caminker, supra note 113, at 2302 (“[A] judge votes sincerely if he supports the position that
he honestly thinks should win and that he would endorse were he alone on the court.”).


121

See Maltzman et al., supra note 110, at 16-17 (“The hallmark of [the strategic] approach is its
focus on the interdependencies inherent in judicial decisionmaking. To achieve policy outcomes as
close as possible to their own preferences, justices must at a minimum take into account the
choices made by their colleagues, with whom they ultimately must negotiate, bargain, and
compromise.”); see also Kornhauser & Sager, The One and the Many, supra note 113, at 52-56
(describing strategic voting). Because of normative considerations regarding what is proper and
not, Kornhauser and Sager suggest that “[t]he simple line between strategic and sincere behavior
seems inapt to multi-judge courts....” Id. at 52.


122

Caminker’s explanation of the essence of strategic voting states:

Not infrequently, there will be opportunities for an individual judge to make her court’s
disposition of a case more compatible with her convictions overall by misstating her convictions as
to particulars....A judge will discover that by supporting an outcome or rationale with which she
disagrees, she can prevent her court’s adoption of some other outcome or rationale that she thinks
worse either for justice in the case before her or for the state of the law, in general.

Caminker, supra note 113, at 2299 (citation omitted).


123

The book’s authors are Forrest Maltzman, Paul J. Wahlbeck, and James F. Spriggs II. Maltzman et
al., supra note 110, is a comprehensive account of the internal processes of the Supreme Court that
provides a valuable window into the Court’s operations.


124

496 U.S. 582 (1990).


125

Id. at 586.


126

Id. at 601.


127

See Maltzman et al., supra note 110, at 3 (stating that Justice Brennan personally opposed the
Muniz rule but joined the majority in an attempt to control the effects of the rule). It is
possible, of course, that Brennan’s actions in Muniz were sincere, but his expressions to Marshall
were not.


128

See id. (quoting Letter from Justice Brennan to Justice Marshall (June 7, 1990) (on file with
Library of Congress Manuscript Division in Papers of Justice Thurgood Marshall)).


129

See id. at 4 (quoting Letter from Justice Brennan to Justice Marshall (June 13, 1990) (on file with
Library of Congress Manuscript Division in Papers of Justice Thurgood Marshall)).


130

See, e.g., Epstein & Knight, supra note 95, at 66-107.


131

Segal and Spaeth explain the use of ideal points in order to place judges along a unidimensional
ideological spectrum. See Segal & Spaeth, Revisited, supra note 75, at 90-91.


132

See Caminker, supra note 113, at 2303 (“[J]udges endeavor to discern and render their best judgment
as to the proper resolution of cases according to their best conception of the law.”); see also
supra note 15.


133

See Kornhauser & Sager, The One and the Many, supra note 113, at 2 (“Judges have been largely
unreflective about the nature of their collegial relationships and responsibilities, even when they
are called on to consider events that render these matters highly problematic.”).


134

See Frank H. Easterbrook, Ways of Criticizing the Court, 95 Harv. L. Rev. 802, 815 (1982) (modeling
judicial decisionmaking and “assum[ing] that, in deciding a case, each Justice operates
independently; each listens to, but is not bound by, the arguments of any other, and each votes
according to his own conclusions”); Kornhauser & Sager, The One and the Many, supra note 113, at 4
(“Collaboration and deliberation are the trademarks of collegial enterprise, and the objective of
collegial enterprise often reaches beyond accuracy to other measures of quality.”); see also Frank
I. Michelman, The Supreme Court, 1985 Term--Foreword: Traces of Self-Government, 100 Harv. L. Rev.
4, 76-77 (1986) (criticizing Dworkin’s model Hercules for being a loner and extolling the virtues
of deliberative decisionmaking in the courts).


135

See supra note 134; see also Kornhauser & Sager, The One and the Many, supra note 113, at 3
(contrasting the nature of distributed collective enterprises in which individuals perform the same
task in such a way that their joint efforts do not affect the outcome (e.g., painting a house) and
team enterprises, which “do not merely multiply product or amplify effort: they transform the
performance into something that only a group could have produced”).


136

See Kornhauser & Sager, supra note 74, at 101 (enumerating three ways that deliberation may affect
individual judges: exposing the judge to a broader range of rationales for each possible result,
providing a more fully elaborated discussion of the consequence of each possible outcome, and
allowing social pressures to work on each judge to create compromise).


137

See Caminker, supra note 113, at 2321 n.71 (relating that Chief Justice Marshall replaced seriatim
opinions with single, unanimous opinions of the Court); William E. Nelson, The Province of the
Judiciary, 37 J. Marshall L. Rev. 325, 344 (2004) (noting that Marshall abolished seriatim opinions
and instituted constant discussion of pending opinions among Justices for the purpose of achieving
consensus).


138

See Kornhauser & Sager, The One and the Many, supra note 113, at 12-13 (distinguishing between the
English practice of each judge reciting his opinion, analogous to seriatim opinions, and the
American practice of a single opinion for the Court).


139

See id. at 13 (“Even in the present, rather fractious moment, the Supreme Court norm remains that
of a collegial court striving towards the collective expression of shared judgments....”).


140

See Michelman, supra note 134, at 76-77 (“[P]lurality...is for dialogue, in support of judicial
practical reason, as an aspect of judicial self-government, in the interest of our freedom.”);
accord Sanford Levinson, Strategy, Jurisprudence, and Certiorari, 79 Va. L. Rev. 717, 734 (1993)
(book review) (“[Certiorari agenda setting] has implications not only for political scientists
interested in judicial process, but also for ‘neo-republicans’ who emphasize the importance of
collective deliberation in public decisionmaking and, more particularly, the ability of the Supreme
Court to illustrate such deliberation in its own conduct.” (citations omitted)).


141

See Maltzman et al., supra note 110, at 148 (summarizing empirical results demonstrating that
Justices make their decisions to join majority opinions based both on individual policy goals and
on the strategic steps necessary to ensure that any opinions they join reflect those policy goals).


142

For a description of this process, see Epstein & Knight, supra note 95, at 56-98, and Maltzman et
al., supra note 110, at 6.


143

See Epstein & Knight, supra note 95, at 73-74 (noting that, in the 1983 term, bargaining memos
played a role in the outcome of roughly half of the cases before the Supreme Court and, in “more
than two-thirds of the most important cases of the 1970s and 1980s, at least one justice attempted
to bargain with the opinion writer”); Maltzman et al., supra note 110, at 64 (“If a justice wants
to express particular problems with an opinion, he or she may suggest that the opinion author make
substantive changes, such as add or delete a phrase, a sentence, or a paragraph in the opinion.”).
Indeed, these numbers may underrepresent the amount of bargaining that actually goes on. See H.W.
Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court 145 (1991) (“We
know that when justices draft an opinion, they do not always send copies of all drafts to all
justices. There are certainly times when they communicate one-on-one.”).


144

See Maltzman et al., supra note 110, at 64 (finding that, in 2,290 cases decided by the Burger
court, Justices joined the majority opinion 66.2% of the time without circulating a separate
opinion, threatening not to join, or waiting or offering suggestions to the majority opinion
writer); Segal & Spaeth, Revisited, supra note 75, at 385 (noting that “silent membership in the
majority vote coalition is by far the most common action of each of the justices, accounting for 58
percent of the total”). One study shows that there are changes to roughly half of first draft
opinions, the rate being higher in “landmark” cases. See Epstein & Knight, supra note 95, at 98.


145

See Segal & Spaeth, Revisited, supra note 75, at 385-86 (“Not surprisingly, ideological closeness
to both the opinion writer and the emerging opinion coalition dramatically add to the likelihood
that a justice will join the majority.”) (citation omitted); accord Maltzman et al., supra note
110, at 81-82 (“When a justice is in ideological harmony with the author, he or she submits a
bargaining memo only 15.0 percent of the time, whereas this number swells to 56.7 percent when a
justice is in ideological conflict with the author.”) (citation omitted).


146

See Forrest Maltzman & Paul J. Wahlbeck, Strategic Policy Considerations and Voting Fluidity on the
Burger Court, 90 Am. Pol. Sci. Rev. 581, 581 (1996) (“Fluidity [changing one’s vote between the
conference and merits votes] is not the norm on the Court, but neither is it rare: During the
1946-75 period, a justice was likely to switch his or her vote...7.3% of the time.”) (citation
omitted); id. at n.1 (“During the 1946-55 period, a justice changed his vote...9% of the time...and
during the 1956-67 period, 10% of the time.” (citations omitted)). In fact, majority coalitions
larger than minimum-winning rarely break up at all. See Saul Brenner & Harold J. Spaeth, Majority
Opinion Assignments and the Maintenance of the Original Coalition on the Warren Court, 32 Am. J.
Pol. Sci. 72, 77 (1988) (“Using all 226 nonminimum winning original coalitions...we found that only
three broke up (1 percent). By comparison, 53 of the Warren Court’s 260 minimum winning coalitions
broke up (20 percent).”).


147

See Timothy M. Hagle & Harold J. Spaeth, Voting Fluidity and the Attitudinal Model of Supreme Court
Decision Making, 44 W. Pol. Q. 119, 122 (1991) (examining coalition defection and finding that “the
shifting justice was ideologically closer to the marginal justice in dissent than he was to any
member of the majority 72.5 percent of the time”); id. at 123 (“[W]e have shown that fluidity with
regard to shifts from a majority vote to dissent are compatible with the attitudinal model....”);
see also supra note 145.


148

See Epstein & Knight, supra note 95, at 31 (discussing the circulation of draft opinions, noting
that “[d]uring this period, justices can request changes, and opinion writers can take these
suggestions, follow them in part, or ignore them,” and concluding that “justices [essentially]
bargain and accommodate”).


149

Id. at 76 (discussing the drafting of opinions for United States v. Paradise, 480 U.S. 149 (1987),
and Johnson v. Transp. Agency, 480 U.S. 616 (1987)).


150

Epstein & Knight, supra note 95, at 76.


151

See id. at 31 (“[J]ustices bargain and accommodate.”); Maltzman et al., supra note 110, at 96-99;
see also Perry, supra note 143, at 144-45 (quoting a Supreme Court Justice as saying “[w]e don’t
negotiate, we accommodate”).


152

See Caminker, supra note 113, at 2380 (“One apparent ‘rule of the game’ of collegial judging is
that, while certain forms of output-focused strategic behavior are accepted (even encouraged) and
others are quietly tolerated, explicit vote trading is disallowed.”) (citation omitted).


153

Maltzman et al. note:

The statistically significant Cooperation variable indicates that justices adopt tit-for-tat
strategies with one another. For example, if the author had previously been extremely uncooperative
with a justice...the justice was likely to respond negatively to draft opinions 30.1 percent of the
time. In contrast, a justice has only a slim 3.3 percent chance of bargaining with the author if
the author had been very cooperative in the past.

Maltzman et al., supra note 110, at 83. This variable could be capturing fundamental agreement on
the law, but one might also conclude that it represents a tacit practice of signing onto the
opinions of one’s allies warts and all. See generally Robert Post, The Supreme Court Opinion as
Institutional Practice: Dissent, Legal Scholarship, and Decisionmaking in the Taft Court, 85 Minn.
L. Rev. 1267, 1345 (2001) (discussing evidence of a norm of acquiescence and hints of implicit vote
trading found there).


154

See Caminker, supra note 113, at 2380, which sketches a number of objections to the practice of
vote trading and concludes:

[D]ifferent objections rest on very distinct foundational assumptions about the nature and purpose
of collegial adjudication. Moreover, some (though not all) objections logically entail that certain
accepted strategic practices should be equally disapproved as well. Finally, some objections apply
to vote trading or other maneuvers only in some contexts but not others....


155

See id. at 2300 (“Certain forms of strategic behavior, such as insincere voting to forge a majority
or unanimous coalition, are routinely practiced and viewed as permissible....”); Kornhauser &
Sager, The One and the Many, supra note 113, at 52-53 (“[I]t is the norm for judges to sacrifice
details of their convictions in the service of producing an outcome and opinion attributable to the
court.”) (citation omitted).


156

429 U.S. 190 (1976).


157

See Epstein & Knight, supra note 95, at 13 (discussing evidence of Brennan’s choices and strategy).


158

See Revesz & Karlan, supra note 113, at 1067 (noting the sharp differences among Justices that are
“reflected in the rising numbers of separate writings, as Justices choose to express their
individual views at the expense of uniting behind a single opinion”).


159

See generally Post, supra note 153 (describing ways in which a norm of acquiescence operated to
achieve greater unanimity on the Court).


160

See Lee Epstein et al., The Norm of Consensus on the U.S. Supreme Court, 45 Am. J. Pol. Sci. 362,
366 (2001) (noting that only 9% of opinions during the Waite Court had dissenting votes, while
conference votes during the same period had dissenting votes 40% of the time); Post, supra note
153, at 1340 (noting the “huge discrepancy between the level of unanimity in conference and the
level of unanimity in published opinions” and explaining that “[t]his difference clearly reflects
an institutional aversion to dissent”).


161

See Post, supra note 153, at 1346 (“‘I agree with your criticism of the...opinion. You will recall
that I voted the other way; and the opinion has not removed my difficulties....But I have differed
from the Court recently in three expressed dissents and concluded that, in this case, I had better
“shut up” as in Junior days.”’ (quoting letter from Louis D. Brandeis to William Howard Taft (Dec.
23, 1922) (Taft Papers, Reel 248))); Melvin I. Urofsky, The Brandeis-Frankfurter Conversations,
1985 Sup. Ct. Rev. 299, 317 (“[T]here is a limit to the frequency with which you can [dissent],
without exasperating men....”); id. at 309 (acknowledging that one “can’t always dissent--may have
dissented much just then”).


162

Post, supra note 153, at 1274. This was common in all sorts of cases, not only ones on the Court’s
then-mandatory docket. See id. at 1338-39 (finding that achieving unanimity in controversial cases
was more difficult than in mandatory cases but was still accomplished 41% of the time).


163

See id. at 1345 (noting that “[t]he norm of acquiescence also established among the Justices
expectations of reciprocity”).


164

See Epstein & Knight, supra note 91, at 1018 (noting a dramatic increase in dissenting opinions in
1941); Post, supra note 153, at 1331 (observing that “the Court’s rates of unanimity did not begin
their free-fall until the mid-1930s”); Shugerman, supra note 117, at 921 (reporting that “[w]hen
Chief Justice Harlan Fiske Stone replaced Hughes in 1941, the rate of dissent skyrocketed”). It is
clear that the norm collapsed entirely in the 1940s, after some of the events described here. See
Thomas Walker et al., On the Mysterious Demise of Consensual Norms in the United States Supreme
Court, 50 J. Pol. 361, 363 (1988). But that evidence also shows a consistent rise beginning
somewhat earlier. Id. Although rates of dissensus may have been higher at prior periods in history,
once begun, this trend toward fragmented decisions continued relentlessly. Id.


165

See Post, supra note 153, at 1347 (noting that the norm of consensus “began to falter” at the same
time that “the Court’s opinions began to modulate from the relatively routinized decisions of a
court of last resort to interventions designed to shape the progress of American law”).


166

See id. at 1275 (“Our law is actually less fixed and certain, in part because unanimous Supreme
Court opinions, routine during the Taft Court, are now so unusual.”); Shugerman, supra note 117, at
949-50 (arguing that one-vote majority decisions are “too unstable to create reliable
constitutional law” and that such opinions “enjoy lesser precedential value”).


167

Post, supra note 153, at 1356 (“A major justification for the norm of acquiescence was the need to
preserve the authority of the Court.”).


168

For example, Brown v. Board of Education often is cited as an example of where the Court labored
for unanimity to quiet dissent, apparently without success. See Dennis J. Hutchinson, Unanimity and
Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 Geo. L.J. 1, 34-50 (1979)
(analyzing the development of unanimity among the justices in the Brown decision). Many of the
opinions on “Red Monday” also were unanimous but had little effect in quelling a backlash against
the Court. See Shugerman, supra note 117, at 925 (noting that “Red Monday” decisions were
“‘overwhelming’ in that one was unanimous, two had a solo dissent by Clark, and one had two
dissents, by Clark and Burton”) (citation omitted).


169

Post, supra note 153, at 1348 (stating that “those who opposed judicial dissent at the turn of the
century typically appealed to a jurisprudential account of law that stressed fixity and finality”).


170

See id. at 1284 (noting that “[n]orms against dissent...were so prominent in the 1920s that they
were explicitly embraced in Canon 19 of the American Bar Association’s 1924 edition of the Canon of
Judicial Ethics”); id. at 1348 (arguing that the Canon discouraged dissents because of the focus on
stare decisis as a way of ensuring fixed and established law).


171

See id. at 1382, stating:

The norm of acquiescence reflected and sustained a world in which the authority of the Court
depended upon its capacity to maintain a domain of fixed and certain rules....But as...the
legitimacy of our legal system came increasingly to be measured by its ability to achieve social
ends, neither the norm of acquiescence nor the isolation of legal authority from policy expertise
could be maintained.


172

See Maltzman et al., supra note 110, at 68 (“By providing alternative ways to view the legal rule
underlying the majority opinion, separate opinions can influence how the majority opinion is
perceived, and even implemented, by judges, political decision makers, or private parties....
Opinions accompanied by concurrences are at greater risk of being overruled in the future.”).


173

See Epstein & Knight, supra note 95, 65-107 (discussing the leverage pivotal Justices have exerted
over decisions when they have had the opportunity to make or break the coalition supporting the
Court’s majority opinion); Maltzman et al., supra note 110, at 20 (noting that “an opinion author’s
willingness to accommodate a colleague is likely to be greater in a 5-4 case than a 7-2 case”);
Murphy, supra note 73, at 58 (“It is also clear that where the Court is closely divided an
uncommitted Justice has great bargaining advantages....”); see generally Lax & Cameron, supra note
110 (modeling a bargaining game over the median Justice’s vote).


174

See Brenner & Spaeth, supra note 146, at 72 (stating the conventional rule of opinion assignment).
This is a norm, not a rule, but there are complaints when it is not followed. See Epstein & Knight,
supra note 95, at 131-32 (discussing Justice Douglas’s complaints when Chief Justice Burger
assigned Roe v. Wade to Justice Blackmun).


175

See Kornhauser, Legal Doctrine, supra note 113, at 459 (asking: “Does a collegial court’s choice of
decision procedure influence the development of the law?”). Kornhauser answers the question by
identifying one way that it does: the doctrinal paradox that he and Lawrence Sager identify when an
issue-by-issue or outcome-based decision rule clearly affects outcomes. See Kornhauser & Sager, The
One and the Many, supra note 113, at 12-21 (analyzing Justice White’s vote in Pennsylvania v. Union
Gas Co., 491 U.S. 1 (1989), and Justice Kennedy’s vote in Arizona v. Fulminante, 499 U.S. 279
(1991), as examples demonstrating the outcome determinative effects of choosing between
case-by-case and issue-by-issue adjudication).


176

See Paul H. Edelman & Jim Chen, The Most Dangerous Justice: The Supreme Court at the Bar of
Mathematics, 70 S. Cal. L. Rev. 63, 63 (1996) ( “Virtually every observer of the Court believes
that certain Justices are more powerful--or more dangerous, if you prefer--than their
counterparts.”); see generally Lax & Cameron, supra note 110 (analyzing the influence of the median
Justice).


177

For a rare normative look at this subject, see Edward T. Swain, Hail, No: Changing the Chief
Justice (2005) (unpublished manuscript, on file with author) (acknowledging the power of the Chief
Justice and suggesting alternative selection methods).


178

Murphy notes:

An astute Chief Justice can also utilize his opinion-assigning power to increase his influence on
the Court....The Chief may even assign the opinion to a wavering Justice, hoping that this task--if
not further reflection and research--will strengthen the Justice’s resolve and perhaps sway the
minority.

Murphy, supra note 73, at 84. Brenner and Spaeth tested this proposition and found that “the
marginal justice was assigned the majority opinion in 111 cases out of 240. The resulting
proportion...more than doubles the random expectation....” Brenner & Spaeth, supra note 146, at 77.
However, despite this high rate of assignment to the marginal Justice, such assignment did not
necessarily hold the original coalition together. See id. at 80.


179

Answers are complicated by the risk of unanticipated consequences. For example, a supermajority
rule could have the perverse impact of Justices quelling dissent in order to protect the Court’s
stature.


180

See supra note 53 (describing scholars’ arguments advocating judicial restraint).


181

But see, e.g., Evan H. Caminker, Thayerian Deference to Congress and Supreme Court Supermajority
Rule: Lessons from the Past, 78 Ind. L.J. 73, 76 (2003) (“Congress theoretically might require
supermajority consensus for the Court to invalidate a federal statute on federalism
grounds....[S]uch a supermajority rule would most likely bring to an immediate halt the recent wave
of state-protective decisions.”) (citation omitted); Shugerman, supra note 117, at 895 (stating
that “a six-three voting rule would appropriately supplement the Justices’ individualized
determination of deference to Congress”); see also Revesz & Karlan, supra note 113, at 1132
(examining the Supreme Court’s use of the rule of four and the hold rule and finding that these
rules are often invoked in service of Justices’ ideological goals, leading to inconsistent and
incoherent law).


182

See infra notes 183-88 (discussing the certiorari process).


183

See S. Sidney Ulmer, The Supreme Court’s Certiorari Decisions: Conflict as a Predictive Variable,
78 Am. Pol. Sci. Rev. 901, 901 (1984) (“In many instances this agenda-building process determines
what and whose problems are to be given national attention, discussion in the media, and possible
resolution.”).


184

There is a large positive literature on the Court’s certiorari behavior. See, e.g., Epstein &
Knight, supra note 95, at 65 (discussing the opportunities for bargaining that are presented in the
decision over certiorari); Segal & Spaeth, Revisited, supra note 75; Sara C. Benesh et al.,
Aggressive Grants by Affirm-Minded Justices, 30 Am. Pol. Research 219 (2002); Robert L. Boucher,
Jr. & Jeffrey A. Segal, Supreme Court Justices as Strategic Decision Makers: Aggressive Grants and
Defensive Denials on the Vinson Court, 57 J. Pol. 824 (1995); Gregory A. Caldeira et al.,
Sophisticated Voting and Gate-Keeping in the Supreme Court, 15 J.L. Econ. & Org. 549 (1999).


185

See supra note 184. Claims here may be overstated. See Levinson, supra note 140, at 729-30 (noting
that given “the sheer numbers of certiorari petitions filed...it simply defies imagination to
believe that any contemporary Justice is familiar enough with more than a fraction of these
petitions so that he or she could have a cogent notion of what would constitute a proper outcome in
the litigation”).


186

Authors differ over how important they believe conflict is in the certiorari decision. Compare
Perry, supra note 143, at 246-52 (stressing the importance of conflicts between circuits in the
certiorari decision), with Segal & Spaeth, Revisited, supra note 75, at 270 (noting that “the Court
sometimes manufactures a conflict in order to justify review”); see also Benesh et al., supra note
184, at 229 (“[C]onsider which variables seem most important to the calculation made by the
affirm-minded justice at the certiorari vote. The largest substantive impact...is made by the
conflict variable....”); Ulmer, supra note 183, at 910 (“[C]onflict is the best predictor [of
certiorari grants] for the Vinson and the Warren Courts....”).


187

See infra note 330 (discussing the influence of the Solicitor General).


188

See Revesz & Karlan, supra note 113, at 1104-05 (describing the use of strategic denials).


189

Positive scholars believe that Justices will be much more careful to grant to affirm, as opposed to
granting to reverse, perhaps explaining the fact that the Court reverses more than it affirms lower
courts. See Perry, supra note 143, at 270 (noting that “[i]f one counts vacates with reversals, the
Court reverses at a rate of about 65-75 percent”); see also Segal & Spaeth, Revisited, supra note
75, at 253 (“A major premise behind most prior work on certiorari is the assumption that the
justices prefer to hear cases they wish to reverse.”); Boucher & Segal, supra note 184, at 832
(citing the existence of “overwhelming evidence that justices are reversal minded in their
certiorari votes and strong evidence that many justices strategically consider probable outcomes
when they wish to affirm”).


190

The following is an example of an agressive grant: “[O]n a conservative court with a case decided
conservatively below, conservative justices, taking into account the likely outcome on the merits,
will vote to grant certiorari and strengthen the lower court’s decision....” Caldeira et al., supra
note 184, at 558.


191

The following is an example of a defensive denial: “[L]iberals on a conservative court will vote to
deny certiorari in order to prevent the court from affirming the lower court’s decision, even
though their first preference would be to grant and reverse the case in hopes of obtaining a more
liberal outcome.” Id.


192

Some studies conclude that aggressive grants are more prevalent than defensive denials. Compare
Boucher & Segal, supra note 184, at 830-32 (studying only cases where certiorari was granted and
finding little evidence of defensive denials but significant evidence of aggressive grants during
the Supreme Court’s 1946-1952 terms), with Caldeira et al., supra note 184, at 570 (examining
affirmances and denials but only in a single year and finding that both aggressive grants and
defensive denials occur). Perry’s account, based on interviews with Justices and their clerks,
seems to confirm the Caldeira et al. result. See Perry, supra note 143, at 198-215.


193

Even Perry, the most legalistic in conclusions of the positive scholars, is clear on this. In fact,
the Justices introduced him to the term “defensive denials.” Perry, supra note 143, at 198-99.


194

See infra note 252 (discussing ideological considerations in the determination of certiorari
decisions).


195

Levinson, supra note 140, at 722 (citation omitted). The reference is to the title of a popular
constitutional law text, Paul Brest, Sanford Levinson, J.M. Balkin & Akhil Reed Amar, Processes of
Constitutional Decisionmaking: Cases and Materials (4th ed. 2000 & Supp. 2005).


196

See Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the
Judges’ Bill, 100 Colum. L. Rev. 1643, 1731-33 (2000) (arguing that the Court’s certiorari power
“has had a profound role in shaping our substantive constitutional law” but that such power has
allowed the Court discretion that “appears to have contributed to a mindset that thinks of the
Supreme Court more as sitting to resolve controversial questions than to decide cases”); Arthur D.
Hellman, The Supreme Court, the National Law, and the Selection of Cases for the Plenary Docket, 44
U. Pitt. L. Rev. 521, 634 (1983) (discussing his findings that “the Court has been denying review
in some possibly certworthy cases”).


197

Jonathan T. Molot, Principled Minimalism: Restriking the Balance Between Judicial Minimalism and
Neutral Principles, 90 Va. L. Rev. 1753, 1785-86 (2004) (“[T]he certiorari authority is the one
institutional characteristic that most risks turning the judiciary into yet another agenda-setting
branch.”).


198

Rare examples include Balkin & Levinson, supra note 60, and Glenn H. Reynolds & Brannon P. Denning,
Lower Court Readings of Lopez, or What if the Supreme Court Held a Constitutional Revolution and
Nobody Came?, 2000 Wis. L. Rev. 369, 370. A notable example outside of constitutional review is
Peter Strauss’s excellent discussion of the impact that docket problems have on substantive law, as
the Supreme Court struggles to manage the lower courts (and administrative agency decisions). See
Strauss, supra note 27.


199

See Henry J. Abraham, The Judicial Process 186 (7th ed. 1998) (“The Supreme Court...stands at the
very pinnacle of the judiciary: There is no higher court, and all others bow before it--or, at
least, are expected to do so.”); Oona A. Hathaway, Path Dependence in the Law: The Course and
Pattern of Legal Change in a Common Law System, 86 Iowa L. Rev. 601, 624 n.94 (2001) (stating that
the Supreme Court Justices are at the “pinnacle of the American legal system”).


200

See Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court
Decisionmaking, 73 Texas L. Rev. 1, 81 (1994) (noting that “[s]cholars heretofore have paid a great
deal of attention to Supreme Court decisionmaking...and...have focused very little on how lower
court judges ought to define and execute their subordinate roles”).


201

Id. at 12 (citation omitted); accord Michael C. Dorf, Dicta and Article III, 142 U. Pa. L. Rev.
1997, 2025 (1994) (“A lower court must always follow a higher court’s precedents.”) (citation
omitted); see also Reynolds & Denning, supra note 198, at 397 (noting that “[t]he view of appellate
judging provided in most law school classes is a fairly simple one: Higher courts select
principles, which lower courts then apply faithfully”) (citation omitted).


202

See Dorf, supra note 201, at 1997 (stating that “the precept that like cases should be treated
alike...[is] rooted both in the rule of law and in Article III’s invocation of the ‘judicial
Power”’); Ronald Dworkin, Hard Cases, 88 Harv. L. Rev. 1057, 1090 (1975) (“The gravitational force
of a precedent may be explained by appeal, not to the wisdom of enforcing enactments, but to the
fairness of treating like cases alike.”); Kornhauser & Sager, supra note 74, at 108 n.35 (noting
that on multimember courts, inconsistency is avoided when individual judges treat like cases
alike).


203

There are scholars who argue that in constitutional cases lower court judges should not be bound by
higher court precedents but should exercise their independent judgment as to constitutional
meaning. See Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional
Adjudication, 73 Cornell L. Rev. 401, 408 (1988) (“‘A Court is not bound to give the like judgment,
which had been given by a former Court, unless they are of opinion that the first judgment was
according to law....”’ (quoting Kerlin’s Lessee v. Bull, 1 U.S. (1 Dall.) 175, 178 (1786))); Gary
Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol’y 23, 27-28 (1994) (“If
the Constitution says X and a prior judicial decision says Y, a court has not merely the power, but
the obligation, to prefer the Constitution.”); Michael Stokes Paulsen, The Irrepressible Myth of
Marbury, 101 Mich. L. Rev. 2706, 2734 (2003) (“[The lower court judges] can, and must, exercise
their own (reverse-able) constitutional interpretive power independently, and correctly.”). Even
these scholars recognize that their views are decidedly not mainstream. See Lawson, supra, at 28
n.16 (“[C]ritics of precedent have stopped short of actually declaring the practice
unconstitutional.” (citations omitted)); id. at 33 (acknowledging that “[t]he doctrine of precedent
is too deeply ingrained in the legal system to permit serious inquiry into its own legitimacy”).


204

See infra notes 205, 207-08 and accompanying text (discussing models that address this problem).


205

See, e.g., Jeffrey R. Lax, Certiorari and Compliance in the Judicial Hierarchy: Discretion,
Reputation, and the Rule of Four, 15 J. Theoretical Pol. 61, 61-62 (2003) (suggesting that “the
discretionary docket has become one of the key weapons in the fight to compel compliance in the
judicial hierarchy, allowing the justices themselves to determine which battles to fight with the
lower courts”); McNollgast, Politics and the Courts: A Positive Theory of Judicial Doctrine and the
Rule of Law, 68 S. Cal. L. Rev. 1631, 1633 (1995) (noting that, in order to achieve its policy
objectives, the Supreme Court has to “induce lower courts to adhere more or less faithfully to its
doctrine”); Donald R. Songer et al., The Hierarchy of Justice: Testing a Principal-Agent Model of
Supreme Court-Circuit Court Interactions, 38 Am. J. Pol. Sci. 673, 673 (1994) (examining “the
extent to which control mechanisms by the principal [the Supreme Court] can minimize shirking [by
the appeals courts]”).


206

See infra notes 222-30 and accompanying text (discussing findings regarding lower court
compliance).


207

See Staudt, supra note 100, at 633 (“Legal scholars who theorize about the logic of judicial
decisionmaking in the context of a hierarchy have converged on a theory of teams.” (citations
omitted)); see also Lewis A. Kornhauser, Adjudication By a Resource-Constrained Team: Hierarchy and
Precedent in a Judicial System, 68 S. Cal. L. Rev. 1605, 1624 (1995) (developing formal and
empirical arguments for strict vertical precedent in a team model of adjudication).


208

See McNollgast, supra note 205, at 1632 (“Our approach focuses on the competition and conflict that
arise between higher and lower courts....”); Charles Cameron et al., Strategic Defiance of the U.S.
Supreme Court C-5 (2003) (unpublished manuscript), available at http://
epstein.wustl.edu/research/defiance.pdf (“[L]egal doctrine within the federal judiciary emerges
from an unrelenting struggle between the few--the hierarchical superiors--and the many--the
hierarchical subordinates.”).


209

See Caminker, supra note 181, at 79 (“[A] Justice’s interpretations will also be influenced by
various role-specific norms that dictate how a federal judge, situated on a particular multimember
court within a particular republican form of government, should decide cases.”); Frank B. Cross,
Decisionmaking in the U.S. Circuit Courts of Appeals, 91 Cal. L. Rev. 1457, 1473 (2003) (“Judges
assume a role in which they are expected to follow the law, after having spent much of their life
in training under the legal model.”); Alex Kozinski, The Many Faces of Judicial Independence, 14
Ga. St. U. L. Rev. 861, 867 (1998) (“Lower courts follow higher courts and you’re supposed to do
what the big boys and girls upstairs tell you to do.”).


210

Ethan Bueno de Mesquita & Matthew Stephenson, Informative Precedent and Intrajudicial
Communication, 96 Am. Pol. Sci. Rev. 755, 755 (2002) (stating that in order to maintain
hierarchical control, “purely policy-oriented judges will often defer to legal precedent, even when
doing so requires them to issue decisions that deviate from the rulings they otherwise would
prefer”); Kornhauser, supra note 207, at 1628 (“When one regards the judiciary as a
resource-constrained team that seeks to maximize the expected number of correct decisions, one
would expect...strict vertical precedent, no horizontal precedent at the trial level, and strict
horizontal precedent at the appellate level.”).


211

See Sara C. Benesh, Modeling the Supreme Court-Circuit Court Relationship Formally 12 (2000)
(unpublished manuscript, on file with author) (asking, “To what extent does Supreme Court policy
control these judges? And why do these lower courts allow for this control?”); Cameron et al.,
supra note 208, at A-1 (asking, “Why do lower courts defy higher courts, or, given the minute
percentage of lower court cases that are heard and reversed, why do lower courts comply with higher
courts?”).


212

See Eric Rasmusen, Judicial Legitimacy as a Repeated Game, 10 J.L. Econ. & Org. 63 (1994)
(discussing a positive theory of why judges follow stare decisis). And still, the question is
somewhat of a mystery. See Benesh, supra note 211, at 11 (“On paper, it is easy to provide reasons
for lower court avoidance of Supreme Court policy prescription. However, in reality, they almost
always follow High Court pronouncements.”).


213

See Baum, supra note 65, at 754 (“[T]he desire to avoid reversal, which itself has several sources,
also impels judges to follow the Supreme Court’s lead.” (citations omitted)); see also Susan B.
Haire et al., Appellate Court Supervision in the Federal Judiciary: A Hierarchical Perspective, 37
Law & Soc. Rev. 143, 147 (2003) (“Indeed, senatorial hearings often focus on the judge’s ‘track
record’ in terms of affirmances and reversals, and thus judges interested in elevation may seek to
conform their behavior to [higher] court preferences.” (citations omitted)).


214

See Bradley C. Canon & Charles A. Johnson, Judicial Policies: Implementation and Impact 36 (2d ed.
1998) (“‘An opinion that patently misinterprets a higher court policy...damages a judge’s
reputation among other judges and attorneys, just as a physician who ignores new medical findings
loses the respect of other physicians.”’ (quoting J. Woodford Howard, Jr., Courts of Appeals in the
Federal Judicial System: A Study of the Second, Fifth and District of Columbia Circuits 122
(1981))); Cross, supra note 209, at 1474 (“As an occupation becomes more professionalized,
‘conformity to occupational expectations [will increasingly tend to] be achieved through
internalized values and peer-group pressure.”’ (quoting Howard, supra, at 89)).


215

See Cross, supra note 209 (discussing legal, strategic, and ideological models of lower court
behavior).


216

Compare Caminker, supra note 200, at 6 (“When an inferior court confronts strongly probative
predictive data concerning its superior court’s likely future ruling, the inferior court generally
may employ the proxy model to emulate this ruling....”), with Michael C. Dorf, Prediction and the
Rule of Law, 42 UCLA L. Rev. 651, 715 (1995) (arguing that the judges should “resist the
temptation” to make predictions and instead attempt to apply the relevant “coherent body of law”).


217

See Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989) (overruling a 1953
case, but noting that the Court of Appeals should still have followed it as binding precedent in
the case below, “leaving to this Court the prerogative of overruling its own decisions”).
Technically Rodriguez dealt with the narrower question of whether lower courts must adhere to
existing precedents even if subsequent events plainly have undermined them. Even those who are
skeptical about the prediction issue believe that Rodriguez was in error. See Ashutosh Bhagwat,
Separate But Equal?: The Supreme Court, The Lower Federal Courts, and the Nature of the “Judicial
Power,” 80 B.U. L. Rev. 967, 974 (2000) (“The rule of Rodriguez de Quijas thus stretches the
Supreme Court’s institutional legitimacy to its limit.”); C. Steven Bradford, Following Dead
Precedent: The Supreme Court’s Ill-Advised Rejection of Anticipatory Overruling, 59 Fordham L. Rev.
39, 68 (1990) (“The Rodriguez Court, overly eager to protect the doctrine of stare decisis, failed
to consider whether the policy concerns behind stare decisis support a requirement that the lower
courts blindly follow even the most doubtful Supreme Court precedent.”); Dorf, supra note 216, at
676 n.87 (arguing that while the prediction model is unacceptable, the Rodriguez Court improperly
ignored the difference between predicting the likelihood that the Supreme Court will overrule a
decision and reasoning that the Supreme Court already did overrule relevant precedent).


218

See Laurence H. Tribe & Michael C. Dorf, On Reading The Constitution 95 (1991) (“[A]lthough
practicing lawyers may be wise to look not to what courts say, but what they do, as a means of
predicting the outcome of a case, this is hardly an acceptable method for a judge to use in
deciding a case.”); Dorf, supra note 216, at 715 (“Whenever there exists a coherent body of
law...judges ought to attempt to apply that law.”); Charles Fried, Impudence, 1992 Sup. Ct. Rev.
155, 187 (“I do not believe that a conscientious judge fulfills her role in a hierarchy of courts
by seeking to predict how a superior court will rule.”).


219

Malia Reddick & Sara C. Benesh, Norm Violation by the Lower Courts in the Treatment of Supreme
Court Precedent: A Research Framework, 21 Just. Sys. J. 117, 124 (2000).


220

Id. at 134-35.


221

See supra note 72 (discussing promotion as a motivation of lower court judges).


222

See Sara C. Benesh & Malia Reddick, Overruled: An Event History Analysis of Lower Court Reaction to
Supreme Court Alteration of Precedent, 64 J. Pol. 534, 547-48 (2002) (finding that lower courts
generally comply with Supreme Court decisions overruling prior precedent); Haire et al., supra note
213, at 155 (analyzing circuit courts’ sensitivity to Supreme Court policy predispositions when
reviewing district court decisions); Songer et al., supra note 205, at 687 (finding that circuit
court decisions in search and seizure cases appear to be determined in part by case variables the
Supreme Court follows, and by shifting preferences of the Supreme Court); Songer & Haire, supra
note 103, at 974-76 (analyzing obscenity cases and finding that lower court decisions are
significantly influenced by Supreme Court precedents); Staudt, supra note 100, at 617 (examining
standing decisions and finding that lower court judges tend to adhere to precedent when clear
precedent exists and there is effective oversight of their decisions); see also Cross, supra note
209, at 1468-71 (summarizing several empirical studies of the relationship between supreme courts
and lower courts and finding that “law matters, at least sometimes, in judicial decisionmaking”).


223

Compare Songer et al., supra note 205, at 693 (“Appeals court judges must be constantly aware that
the losing litigants...scrutinize their decisions intensely and will bring flagrant doctrinal
shirking to the attention of the principal....[T]his anticipated response induces a great deal of
responsiveness and doctrinal congruence even though the actual level of reversals is very low.”),
with David E. Klein & Robert J. Hume, Fear of Reversal as an Explanation of Lower Court Compliance,
37 L. & Soc. Rev. 579, 602 (2003) (offering that “[a]nother possibility strikes us as especially
likely--that congruence flows from lower court judges’ attempts to reach legally sound decisions”).


224

See Cross, supra note 209, at 1481 (observing that lower court decisions may be less ideological
than higher courts, in part because they see more easy cases); Staudt, supra note 100, at 669
(“[D]istrict courts are subject to a high level of oversight and monitoring, and this works as a
powerful deterrent to political decisionmaking.”).


225

The explanatory power of some of the models is quite low, suggesting that the models are not
capturing all that goes on. See, e.g., Cross, supra note 209, at 1515 (testing the relative effects
of legal, political, and strategic variables and finding that “[t]he test with the greatest
explanatory power...explains less than 20% of the variance of outcomes, leaving a considerable
residual”).


226

Cross, supra note 209, at 1459.


227

Frank B. Cross & Emerson H. Tiller, Judicial Partisanship and Obedience to Legal Doctrine:
Whistleblowing on the Federal Courts of Appeals, 107 Yale L.J. 2155, 2168-73 (1998) (examining over
two hundred cases from the D.C. Circuit Court of Appeals to determine when the court deferred to
administrative agencies post-Chevron).


228

See Songer & Haire, supra note 103, at 975-76 (“After controlling for the changing partisan
composition of the courts, the impact of changing Supreme Court precedent appears to be
substantial....”); Songer et al., supra note 205, at 687-88 (“As the Supreme Court became more
conservative following the appointment of Chief Justice Burger, the courts of appeals responded
with more conservative decisional trends.”); Staudt, supra note 100, at 655 (“After 1968, [federal]
courts may have granted standing more often to taxpayers (in all contexts) due to the new open-door
policy for federal taxpayers enunciated in Flast.”).


229

Songer et al., supra note 205, at 688 (“As in the metaphor of the dog on the leash, some appeals
court panels led and some followed ‘the owner,’ but when the Supreme Court tugged on the leash,
both liberal and conservative panels were responsive.”).


230

Cf. Richard L. Revesz, Congressional Influence on Judicial Behavior? An Empirical Examination of
Challenges to Agency Action in the D.C. Circuit, 76 N.Y.U. L. Rev. 1100, 1111 n.48 (2001)
(criticizing the way Cross and Tiller describe their results for just this reason).


231

See, e.g., Donald R. Songer et al., Continuity and Change on the United States Courts of Appeals
112 (2000) (“The general picture presented by these studies is clear: across a wide variety of
courts and issue areas, Democratic judges are more likely to support the liberal position in case
outcomes than their Republican colleagues.”); Tracey E. George, Developing a Positive Theory of
Decisionmaking on U.S. Courts of Appeals, 58 Ohio St. L.J. 1635, 1694-95 (1998) (“[W]e can explain
and predict micro-level judicial behavior on the en banc [Fourth Circuit] courts of appeals in
light of the party of the President who appointed the judges.”); Revesz, supra note 230, at 1104
(finding “strong, statistically significant evidence of ideological voting” in D.C. Circuit review
of health-and-safety decisions); Revesz, supra note 105, at 1719 (finding, in a study of
environmental cases, that “ideology significantly influences judicial decisionmaking on the D.C.
Circuit”); Staudt, supra note 100, at 663 (finding in appellate court cases involving federal
taxpayer standing “the judges’ politics as measured by the party of the appointing President is the
only variable that has explanatory value for state and municipal taxpayer outcomes”).


232

See Revesz, supra note 105, at 1719 (“[I]deological voting is more prevalent in cases, such as
those raising procedural challenges, that are less likely to be reviewed by the United States
Supreme Court.”); Staudt, supra note 100, at 665 (“With more intense Supreme Court oversight,
appellate court judges likely would not risk deciding federal taxpayer decisions according to their
political preferences.”).


233

See, e.g., Staudt, supra note 100, at 617 (“[J]udges will render law-abiding and predictable
decisions in circumstances where clear precedent and effective judicial oversight exists.”).


234

See, e.g., Donald R. Songer et al., Do Judges Follow the Law When There is No Fear of Reversal?, 24
Just. Sys. J. 137, 138 (2003) (“Thus, there seems to be a consensus that in the lower federal
courts, at least some judicial decisions are influenced by the policy preferences of judges....”).


235

See, e.g., Robert A. Carp & C. K. Rowland, Policymaking and Politics in the Federal District Courts
14 (1983) (analyzing data from 27,772 federal district court opinions from 1933-1977 to explore the
relationship between policy and judicial outcomes on the federal courts); Sunstein et al., supra
note 101 (exploring ideological voting on federal courts of appeals).


236

There is an entire body of law given over to the problems of compliance by the state courts with
Supreme Court commands. See generally Barry Friedman, Under the Law of Federal Jurisdiction:
Allocating Cases Between Federal and State Courts, 104 Colum. L. Rev. 1211 (2004) (discussing the
debate over state court fidelity to Supreme Court commands).


237

Compare David W. Romero & Francine Sanders Romero, Precedent, Parity, and Racial Discrimination: A
Federal/State Comparison of the Impact of Brown v. Board of Education, 37 Law & Soc. Rev. 809, 819
(2003) (comparing federal and state court responses to the Brown v. Board of Education decision and
finding that “dramatic changes occurred, but only at the federal level”), with Michael E. Solimine,
Supreme Court Monitoring of State Courts in the Twenty-First Century, 35 Ind. L. Rev. 335, 353-58
(2002) (discussing empirical work showing “parity” between state and federal courts).


238

See Revesz, supra note 105, at 1764 (“[T]he ideology of one’s colleagues is a better predictor of
one’s vote than one’s own ideology.”). In studying the size of panel effects on case outcomes,
Revesz finds their effects “staggering.” Id. at 1763.


239

See Sunstein et al., supra note 101, at 316 (studying a range of cases across circuit courts and
finding that “[f]or both Democratic appointees and Republican appointees, the likelihood of a
liberal vote jumps when the two other panel members are Democratic appointees, and it drops when
the two other panel members are Republican appointees”); Sunstein et al. suggest a third
hypothesis, which they call the “collegial concurrence.” See id. at 338 (“[D]issenting opinions
might also cause a degree of tension among judges, a particular problem in light of the fact that
the same judges often work together for many years.”).


240

Id. at 306; cf. George, supra note 231, at 1689 (finding, in a study of Fourth Circuit en banc
cases, that some judges do not vote their ideology but rather act as “swing” voters).


241

Revesz notes:

The D.C. Circuit is the only federal circuit court that announces the composition of its panels
before the litigants prepare their briefs....By allowing parties to ascertain the composition of
the panel before expending the bulk of the costs necessary to litigate a case to a judgment, this
procedure encourages litigants to pursue comparatively weak cases only if the panel is favorable.

Revesz, supra note 230, at 1108-09 (citations omitted).


242

Sunstein et al., supra note 101, at 306.


243

Tiller & Cross, supra note 105, at 215.


244

See Andrew F. Daughety & Jennifer F. Reinganum, Speaking Up: A Model of Judicial Dissent and
Discretionary Review, 14 Sup. Ct. Econ. Rev. (forthcoming 2006) (manuscript at 8 n.10, available at
http:// www.vanderbilt.edu/Econ/faculty/Daughety/SpeakingUp.pdf) (“[T]he average yearly number of
docketed cases granted cert was 225 in the 1970’s, 155 in the 1980’s, and 92 in the first half of
the 1990’s; these totals, respectively, represent 9.9%, 5.9% and 3.8% of the average number of
docketed petitions for cert.”) (citation omitted).


245

See Charles M. Cameron et al., Strategic Auditing in a Political Hierarchy: An Informational Model
of the Supreme Court’s Certiorari Decisions, 94 Am. Pol. Sci. Rev. 101, 102 (2000) (“‘Judicial
culture’ famously includes a desire to avoid reversals.”); see also Lax, supra note 205, at 63
(“Certiorari is the response to non-compliance; compliance is the anticipatory response to
certiorari.”).


246

Haire et al., supra note 213, at 146.


247

Cameron et al., supra note 245, at 110-13; Matt Spitzer & Eric Talley, Judicial Auditing, 29 J.
Legal Stud. 649, 652-65 (2000).


248

Cameron et al., supra note 208, at C-5-C-10 (summarizing four different signaling and auditing
models and extracting their testable implications); Daughety & Reinganum, supra note 244, at 8-15
(developing a model in which lower court dissents are used as signals to indicate to higher courts
when review is necessary).


249

Kornhauser, supra note 207, at 1609-10; McNollgast, supra note 205, at 1646.


250

See Cameron et al., supra note 245, at 108. The authors note that this could be called the “Nixon
goes to China” proposition because it suggests that higher courts can have a particular kind of
certainty about opinions from lower courts they know to be either conservatively or liberally
inclined. “[I]f a cold warrior like Nixon goes to China it must be time for a change in American
policy.” Id. Likewise, if even a liberal court comes to a conservative conclusion in a case, it is
less likely that the decision needs to be reviewed. Id.


251

See Cameron et al., supra note 245.


252

But see Kevin T. McGuire et al., A Spatial Model of Supreme Court Voting 10 (2004), available at
http://www.unc.edu/~kmcguire/papers/spatial.pdf (discussing the tempering effect that occurs
because potential petitioners to the Supreme Court only appeal if they think the court will rule in
their favor and finding that “[f]or the category of affirmances, then, a move to the right [by the
Supreme Court] actually produces a greater number of liberal policies, while a shift to the left
generates more conservative outcomes”).


253

See, e.g., McNollgast, supra note 205, at 1640 (explaining one step in the sequence of decisions
they are modeling as “[l]ower courts then decide whether to comply with the doctrine in future
decisions”).


254

See supra text accompanying note 216 (discussing anticipatory compliance).


255

See, e.g., Caminker, supra note 200, at 19-22 (discussing circumstances in which circuit court
judges expressly respond to Supreme Court preferences instead of preexisting precedents); George,
supra note 231, at 1692-94 (compiling statistical analysis suggesting that swing votes on en banc
panels are often cast strategically and contrary to ideology in order to avoid Supreme Court
reversal).


256

Some positive scholars suggest that because of this apparent bottom-up effect, the other branches
of government can themselves influence the course of the law by “packing” the lower courts.
McNollgast, supra note 205, at 1634 (“[U]nder the appropriate circumstances, expansion of the lower
judiciary can have the same effect on judicial doctrine as packing the Supreme Court.”); see also
John M. de Figueiredo et al., Congress and the Political Expansion of the United States District
Courts 17 (2000), available at http://
www.wcfia.harvard.edu/seminars/pegroup/deFigueiredo_Gryski.pdf (finding that, while the timing of
expansion of the district courts is also driven by political alignment rather than caseload, “both
politics and caseload have affected the size of district court expansion”); John M. de Figueiredo &
Emerson H. Tiller, Congressional Control of the Courts: A Theoretical and Empirical Analysis of
Expansion of the Federal Judiciary, 39 J.L. & Econ. 435, 447-54 (1996) (demonstrating that the
timing of expansion of the federal appellate courts has been primarily a function of political
alignment rather than caseload).


257

See, e.g., Bueno de Mesquita & Stephenson, supra note 210, at 755 (modeling circumstances in which
the necessity of obtaining lower court compliance will cause judges to adhere to stare decisis
despite the fact that it “requires them to issue decisions that deviate from the rulings they
otherwise would prefer”); Strauss, Implications, supra note 27, at 1095 (“The Court’s opinions on
the merits may be influenced by its management dilemmas.”).


258

Walter F. Murphy, Lower Court Checks on Supreme Court Power, 53 Am. Pol. Sci. Rev. 1017, 1018
(1959).


259

See McNollgast, supra note 205, at 1634 (“Our theory suggests that the Supreme Court will expand
the range of lower court decisions that it finds acceptable when faced with substantial
noncompliance by the lower courts.”).


260

Staudt, supra note 100, at 659.


261

Miranda v. Arizona, 384 U.S. 436 (1966) (overturning convictions in Arizona and New York in which
defendants were not told of their rights prior to interrogation).


262

See Louis Michael Seidman, Brown and Miranda, 80 Cal. L. Rev. 673, 678 (1992) (noting criticism of
the Miranda Court for acting as a legislature “in both a procedural and substantive sense”);
Strauss, supra note 25, at 190 (noting that “[a]s many critics have commented, [the Miranda
decision] reads more like a legislative committee report with an accompanying statute”) (citation
omitted).


263

See Fallon, supra note 3, at 7 (“In short, Miranda...shows the Court making practical,
instrumental, and tactical judgments about the appropriate role of the judicial branch in securing
effective constitutional implementation.”) (citation omitted); Strauss, supra note 25, at 207-09
(defending Miranda on the grounds of institutional reality).


264

See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1179 (1989)
(arguing that the Supreme Court should adopt rules as a means of controlling the implementation of
the law by lower courts); Kathleen M. Sullivan, The Supreme Court, 1991 Term--Foreword: The
Justices of Rules and Standards, 106 Harv. L. Rev. 22, 95-121 (1992) (arguing that divisions over
rules and standards can be explained either from a political or a jurisprudential perspective).


265

See William H. Rehnquist, The Changing Role of the Supreme Court, 14 Fla. St. U. L. Rev. 1, 11
(1986) (utilizing the word “percolate” to describe the phenomenon of Supreme Court grants of
certiorari only after the relevant legal issues are explored by lower courts); Staudt, supra note
100, at 659 n.192 (describing the process of percolation as one through which “lower courts are
able to review problems in an uninhibited manner, leading to multiple perspectives on a difficult
issue”).


266

See Richard A. Posner, The Federal Courts: Crisis and Reform 163 (1985) (“[A] difficult question is
more likely to be answered correctly if it is allowed to engage the attention of different sets of
judges deciding factually different cases than if it is answered finally by the first panel to
consider it.”); Kornhauser, supra note 207, at 1626 (discussing the advantages to percolation);
Strauss, Implications, supra note 27, at 1109 (“From a management perspective, it is useful to
permit issues to ‘percolate’ through the system for a time....”).


267

See Daughety & Reinganum, supra note 244, at 5 (“[W]e find that sufficient restriction of access to
a supreme court can yield increased information revelation about an appealed case, though excessive
restriction can suppress information revelation.”).


268

Walter V. Schaefer, Reliance on the Law of the Circuit--A Requiem, 1985 Duke L.J. 690, 690 n.2
(noting that the deference the Supreme Court gives to the practice of allowing each federal court
of appeals to determine its own construction of the Constitution “is given false legitimacy by
calling it ‘percolation”’).


269

Rehnquist, supra note 265, at 11; accord Paul M. Bator, What is Wrong with the Supreme Court?, 51
U. Pitt. L. Rev. 673, 691 (1990) (“[I]t is my strong impression that the virtues of percolation
have been wildly exaggerated....”); Caminker, supra note 200, at 35 (arguing that institutional
values such as “judicial economy, uniformity of interpretation, and decisional proficiency”
outweigh the potential benefits of percolation) (citation omitted).


270

Rehnquist, supra note 265, at 10 (noting that the Court’s docket is not large enough to “enable us
to address the numerous important statutory and constitutional questions which are daily being
decided by the courts of appeals and by the fifty high courts of the states”); id. at 11 (stating
that the present situation may violate Cicero’s dictum that the “law is not ‘one thing at Rome and
another at Athens”’); accord Brannon P. Denning & Glenn H. Reynolds, Rulings and Resistance: The
New Commerce Clause Jurisprudence Encounters the Lower Courts, 55 Ark. L. Rev. 1253, 1255-57 (2003)
(expressing concern that like cases will not be treated alike by lower courts which, for example,
may construe the Lopez precedent in different ways depending on the “unsavory” nature of the
litigants before them); Scalia, supra note 264, at 1178 (“The common-law, discretion-conferring
approach is ill suited, moreover, to a legal system in which the supreme court can review only an
insignificant proportion of the decided cases.”).


271

Strauss, Implications, supra note 27, at 1116 (“[T]he Court’s explicit endorsement of percolation
and the implicit approval that this carries for nonacquiescence...are troubling developments for a
nation committed, as ours is, to the rule of law.”).


272

514 U.S. 549 (1995).


273

See Steven G. Calabresi, “A Government of Limited and Enumerated Powers”: In Defense of United
States v. Lopez, 94 Mich. L. Rev. 752, 752 (1995) (labeling Lopez “a revolutionary and long overdue
revival of the doctrine that the federal government is one of limited and enumerated powers”);
Reynolds & Denning, supra note 198, at 369-70 nn.2-4 (documenting various sources commenting on
Lopez). But see Charles Fried, Foreword: Revolutions?, 109 Harv. L. Rev. 13, 34 (1995) (“The Lopez
case is a perfect example not of revolution and not of some amendment out of ordinary course... but
rather of adjudication precisely in the ordinary course....”).


274

As Jack Balkin and Sanford Levinson observe, it is often easier to begin a revolution in the lower
courts because even with present partisan wrangling, many more of those appointments fall below the
radar screen. Balkin & Levinson, supra note 60, at 1074.


275

See id. (arguing that it is “unthinkable that the Supreme Court would ever have reviewed the
federal statute at issue in Lopez if the Fifth Circuit had not struck it down in the first place”).


276

See Denning & Reynolds, supra note 270, at 1256 (“There is evidence from the lower courts’ opinions
that they are still reluctant to take Lopez seriously....”); Sunstein et al., supra note 101, at
326 (“[N]either Republican nor Democratic appointees seem to believe that those signals [in the
federalism cases] should be taken very seriously.”).


277

505 U.S. 833 (1992).


278

410 U.S. 113 (1973).


279

Casey was forced in front of the Court in advance of the 1992 presidential election. See Linda
Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey 201-06 (2005)
(describing the efforts of abortion rights groups and Justice Blackmun to force a decision in Casey
before the 1992 election, expecting that Roe would be overruled).


280

See Mazurek v. Armstrong, 520 U.S. 968 (1997) (overturning an injunction against the enforcement of
a Montana statute limiting the performance of abortions to physicians); Greenville Women’s Clinic
v. Bryant, 222 F.3d 157 (4th Cir. 2000) (upholding extensive South Carolina regulations imposed on
clinics performing any second-trimester abortions or more than five first-trimester abortions),
cert. denied, 531 U.S. 1191 (2001); Karlin v. Foust, 188 F.3d 446 (7th Cir. 1999) (upholding a
Wisconsin law requiring physicians who perform abortions to meet with patients at least 24 hours
before performing the procedure and to provide specific oral and printed information, except when
the physician, in “reasonable medical judgment,” determines that there is a “medical emergency”);
see generally Martha A. Field, Abortion Law Today, 14 J. Legal Med. 3 (1993) (describing Casey’s
cutbacks on Roe v. Wade protections); Brent Weinstein, The State’s Constitutional Power to Regulate
Abortion, 14 J. Contemp. Legal Issues 229 (2004) (sampling “the States’ current power to regulate
abortion as reflected in post-Casey decisions of the lower courts”).


281

See Murphy, supra note 73, at 25 (noting that the lower federal and state courts are responsible
for most of the law because few cases make it to the Supreme Court); Sanford Levinson, On
Positivism and Potted Plants: “Inferior” Judges and the Task of Constitutional Interpretation, 25
Conn. L. Rev. 843, 844 (1993) (“The behavior of the roughly 100 circuit judges and 500 district
judges is, for most citizens most of the time, far more likely to count as ‘the law’ than the
pronouncements of the nine denizens of the Supreme Court.”) (citation omitted); Reynolds & Denning,
supra note 198, at 370 (“For the vast majority of litigants, the courts of appeal represent the
real last word in constitutional law.”).


282

Denning and Reynolds argue that “reality seems to be more complex than” statements such as “[t]he
Supreme Court is the highest court in the land,” or “[l]ower courts follow [the Supreme Court’s]
precedents.” Denning & Reynolds, supra note 270, at 1310.


283

See Eskridge & Frickey, supra note 13, at 30 (explaining that because “interaction [between the
branches] is typically sequential...each institution has trumping power”); John Ferejohn,
Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. Cal. L. Rev. 353,
362 (1999) (referring to “the broader federalist scheme of making the major departments of
government interdependent rather than establishing a strict separation of powers”).


284

See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 341 (1936) (Brandeis, J., concurring)
(“Considerations of propriety, as well as long-established practice, demand that we refrain from
passing upon the constitutionality of an act of Congress unless obliged to do so....”); Kramer,
supra note 60, at 166 (“[L]ess is more when it comes to limiting self-government, and we should be
thinking about a minimal model of judicial review that calls upon judges to intercede only when
necessary.”); Robert H. Bork, The Supreme Court Needs a New Philosophy, Fortune, Dec. 1968, at 141
(“[R]estraint grows out of a theory of the division of labor or competence in government and
defines not only the occasions upon which the Supreme Court should defer to the will of
representative institutions but also the occasions for, and the manner of, judicial
intervention.”).


285

See Eugene V. Rostow, The Sovereign Prerogative: The Supreme Court and the Quest for Law
xxxiii-xxxiv (1962) (“[C]onsiderations of judgment and ‘self-restraint’ hardly constitute a theory
of judicial action....They tell us when it may be wise for the Court not to act. But they tell us
next to nothing about when the Court should act or what it should do when it does.”); Friedman,
supra note 52, at 245-46 (noting that most advocates of judicial restraint proposed solutions that
were “almost meaningless as a guide to decision” and that “gave no clue, standing alone, as to
which controversies justified Supreme Court intervention, and which did not”).


286

See infra note 288 (describing these competing positions as the “hope” and “threat” of judicial
review).


287

See supra notes 284-85 and accompanying text.


288

Barry Friedman, The Importance of Being Positive: The Nature and Function of Judicial Review, 72 U.
Cin. L. Rev. 1257, 1267-70 (2004).


289

See supra note 44 and accompanying text (discussing the countermajoritarian nature of the courts).


290

See supra note 45 and accompanying text (reviewing the views of prominent lawyers and judges
regarding judicial review).


291

See 1 Bruce Ackerman, We the People: Foundations 10 (1991) (“[T]he courts serve democracy by
protecting the hard-won principles of a mobilized citizenry against erosion by political elites who
have failed to gain broad and deep popular support for their innovations.”); Bickel, supra note 51,
at 109 (“[T]he Supreme Court...[is] an institution charged with the evolution and application of
society’s fundamental principles.”); John Hart Ely, Democracy and Distrust 8 (1980) (arguing that
judicial review is a way of “protecting minorities from majority tyranny that is not a flagrant
contradiction of the principle of majority rule”); Larry Alexander & Frederick Schauer, On
Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1380 (1997) (maintaining that
one reason for judicial supremacy under the Constitution is “to remove a series of transcendent
questions from short-term majoritarian control”); Terrence Sandalow, Judicial Protection of
Minorities, 75 Mich. L. Rev. 1162, 1184 (1977) (“[C]onstitutional law must now be understood as the
means by which effect is given to those ideas that from time to time are held to be fundamental in
defining the limits and distribution of governmental power in our society.”).


292

See supra note 55 (collecting commentary on judicial independence).


293

See Robert A. Dahl, Decision Making in a Democracy: The Supreme Court as a National Policy-Maker, 6
J. Pub. L. 279, 284 (1957) (“Under any reasonable assumptions about the nature of the political
process, it would appear to be somewhat naïve to assume that the Supreme Court either would or
could play the role of Galahad.”); Eskridge & Frickey, supra note 13, at 53 (“[S]tructural features
of the Court’s position in the federal system make the Court an unlikely ally for outsider groups
challenging stable national equilibria....”).


294

See Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme
Court, and Constitutional Leadership in U.S. History (forthcoming 2006) (examining why “powerful
political actors might recognize such an authority and defer to the judiciary’s particular
interpretations of the Constitution”); Matthew Stephenson, When the Devil Turns...: The Political
Foundations of Independent Judicial Review, 32 J. Legal Stud. 59, 60 (2003) (developing a model to
answer the question of why government “would...accept the limits imposed by a truly independent
court”).


295

See Eskridge & Frickey, supra note 13, at 46 (“If a current President and Congress are united in
favor of a national policy, the Court is unlikely to invalidate the policy.”); Ferejohn, supra note
283, at 358 (noting that the “constitutional protections afforded to individual judges remain
dependent on a congressional willingness to maintain a relatively high barrier for impeachment”);
Keith E. Whittington, Legislative Sanctions and the Strategic Environment of Judicial Review, 1
Int’l J. Const. L. 446, 448 (2003) (“Judges can only remain independent if other political actors
can be convinced that it is in their own interest to tolerate judicial independence....”).


296

See Dahl, supra note 293, at 285 (“The fact is, then, that the policy views dominant on the Court
are never for long out of line with the policy views dominant among the lawmaking majorities of the
United States.”); Lee Epstein et al., The Supreme Court as a Strategic National Policymaker, 50
Emory L.J. 583, 583-85 (2001) (agreeing with Dahl that the judiciary is not likely to clash
substantially with the other branches of government but disagreeing on the mechanism).


297

Ferejohn, supra note 283, at 357. The rest of the quote is germane to where this discussion is
headed: “at least not badly enough (or for long enough) to incur the substantial costs and
political risks associated with such an effort.” Id.


298

See William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group
Perspective, 18 J.L. & Econ. 875, 879 (1975) (suggesting that an independent judiciary that
interprets legislation according to the legislature’s original intentions actually “facilitates
rather than, as conventionally believed, limits the practice of interest-group politics”). A sample
of work in this line includes Mathew D. McCubbins & Thomas Schwartz, Congressional Oversight
Overlooked: Police Patrols Versus Fire Alarms, 28 Am. J. Pol. Sci. 165, 173-76 (1984) (noting that
judicial review is a mechanism by which the legislature can monitor agency decisions that diverge
from legislative goals); James R. Rogers, Information and Judicial Review: A Signaling Game of
Legislative-Judicial Interaction, 45 Am. J. Pol. Sci. 84 (2001) (developing a model in which
judicial review is supported because of its informational purposes); Eli M. Salzberger, A Positive
Analysis of the Doctrine of Separation of Powers, or: Why Do We Have an Independent Judiciary?, 13
Int’l Rev. L. & Econ. 349, 350 (1993) (arguing that it is in the government’s interest to “maintain
an independent judiciary to which they can delegate legislative and other public decision-making
powers, because this delegation assists in maximizing their political support and chances of
reelection”); Mark A. Graber, Constitutional Politics and Constitutional Theory: A Misunderstood
and Neglected Relationship, 27 Law & Soc. Inquiry 309, 320 (2002) (book review) (noting that
“[q]uite frequently, judicial review is invited by members of the dominant national coalition who
hope the federal judiciary will assume responsibility for resolving crosscutting political
controversies”) (citation omitted); Posner, Possibility, supra note 15, at 54 (arguing that
judicial review may serve as a focal point for societal conventions that are self-enforcing when
the public agrees with the Court’s decisions). For a discussion and critique of these and other
theories, see Barry Friedman, The Myths of Marbury, in Arguing Marbury v. Madison 65, 71-72 (Mark
Tushnet ed., 2005), observing that “the[se] theories do not distinguish between the establishment
of judicial review and its maintenance...[they] often fail to account for challenges to judicial
power...[and they] typically fail as an explanation of how judicial review actually is exercised.”
See also Ferejohn, supra note 283, at 376 (“I am not sure, however, how any of these theories would
be able to account for the creation of what I have described as the American system: independent
judges within a dependent judiciary. Why, if judicial independence is a good thing from some
interest-based perspective, leave the door open for political meddling in the future by allowing
the political branches to influence the judiciary as a whole?”).


299

See Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 35 (1991)
(“[C]ourts can be effective producers of significant social reform...only when a great deal of
change has already been made.”).


300

The origin for this type of work was a famous, but unpublished, paper by Brian Marks. Brian Marks,
A Model of Judicial Influence on Congressional Policymaking: Grove City College v. Bell (1988)
(unpublished Ph.D. dissertation, Washington University) (on file with author). The work was
expanded upon and popularized by John Ferejohn and his many students and coauthors. See, e.g.,
William N. Eskridge, Jr. & John Ferejohn, The Article I, Section 7 Game, 80 Geo. L.J. 523 (1992);
John Ferejohn & Charles Shipan, Congressional Influences on Bureaucracy, 6 J.L. Econ. & Org. 1
(Special Issue) (1990); John Ferejohn & Barry Weingast, Limitation of Statutes: Strategic Statutory
Interpretation, 80 Geo. L.J. 565 (1992) (examining the effects of statutory interpretation by
courts on deliberative process in other branches of government); John A. Ferejohn & Barry R.
Weingast, A Positive Theory of Statutory Interpretation, 12 Int’l Rev. L. & Econ. 263 (1992)
[hereinafter Ferejohn & Weingast, Positive Theory] (providing a theory of statutory interpretation
by courts where interpretation depends on the relative situation of the Court vis-à-vis the other
branches of government); see also Lee Epstein & Jack Knight, Toward A Strategic Revolution in
Judicial Politics: A Look Back, A Look Ahead, 53 Pol. Res. Q. 625 (2000) (accounting for the
growing number of studies that approach judicial politics with a strategic paradigm and examining
the strengths and weaknesses of this approach).


301

See Eskridge & Frickey, supra note 13, at 28-29 (“Congress, the executive, and the courts...seek[]
to promote [their] vision of the public interest, but only as that vision can be achieved within a
complex, interactive setting in which each organ of government is both cooperating with and
competing with the other organs.”).


302

Peretti, supra note 100, at 145-46; see also Eskridge & Frickey, supra note 13, at 29 (“To achieve
its goals, each branch also acts strategically, calibrating its actions in anticipation of how
other institutions would respond.”); Andrew D. Martin, Public Policy, the Supreme Court, and the
Separation of Powers 1 (1998) (unpublished manuscript, on file with author) (“[I]f justices are
truly interested in policy, they have to anticipate reactions to their decisions by the ‘political’
branches of government.”). Stimson, Mackuen, and Erikson call this “rational anticipation.” James
A. Stimson et al., Dynamic Representation, 89 Am. Pol. Sci. Rev. 543, 544-45 (1995) (“Rational
actors make decisions in the present, but the utility they maximize lies wholly in the
future....The political import of that future orientation is that all is anticipation.”).


303

See, e.g., Eskridge, supra note 12 (developing a model where the Court is another actor, together
with Congress and the President, in statutory interpretation, and using this model to analyze civil
rights statutory interpretation from 1962-1990); Ferejohn & Weingast, Positive Theory, supra note
300; Pablo T. Spiller & Emerson H. Tiller, Invitations to Override: Congressional Reversals of
Supreme Court Decisions, 16 Int’l Rev. L. & Econ. 503 (1996) (developing a model where
congressional overrides of Court decisions are explained not as the result of the Court’s
misreading of congressional preferences but rather as fully anticipated by the Supreme Court).


304

See Whittington, supra note 295, at 447 (“Judicial interpretation of statutes can be reversed with
relative ease by legislative action....”).


305

See Eskridge & Frickey, supra note 13, at 38 (noting that “the Civil Rights Act of 1991...was
triggered by five decisions in the 1988 Term”).


306

See Ferejohn & Weingast, Positive Theory, supra note 300, at 273 (showing that if the Court’s ideal
judgment is not politically viable, then the Court will issue a judgment that is politically viable
so that it will not be overridden by Congress).


307

Segal & Spaeth, Revisited, supra note 75, at 18 (distinguishing strong checks on the legislature
and the executive from those on the judiciary, which “by contrast, escaped relatively unscathed”).


308

Segal and Spaeth argue that the models oversimplify how easy it is to overturn judicial decisions,
id. at 333-40, assume too readily that judges have complete information about other branches’
actors, id. at 348, neglect the transaction costs of Congress overturning decisions, id. at 107,
and forget that Congress does not necessarily have the last word, id. at 108-09.


309

Id. at 349 (“If the overwhelming majority of statistical models find no support for the
separation-of-powers model, if the few statistical models supporting the separation-of-powers model
are seriously flawed...there is little need to say more.”); Jeffery A. Segal, Separation-of-Powers
Games in the Positive Theory of Congress and Courts, 91 Am. Pol. Sci. Rev. 28, 42 (1997)
(performing statistical tests of separation-of-powers games and concluding that the “results should
at least give pause to those certain about the separation-of-powers model as applied to the U.S.
Supreme Court”).


310

Segal, supra note 309, at 42.


311

See Epstein & Knight, supra note 95, at 141 (“The infrequency of congressional responses to
constitutional decisions, coupled with the difficulty involved in overturning them, means the
justices may be less attentive to the preferences and likely actions of other government actors in
constitutional disputes than in statutory cases.”); Eskridge & Frickey, supra note 13, at 42 (“The
Court in those cases can usually be overridden only by a constitutional amendment, which is costly
and impracticable because it requires supermajorities in Congress and among the states.”) (citation
omitted); Whittington, supra note 295, at 449 (“[L]egislative reversal in the constitutional
context is much less readily available than in the statutory context....”).


312

See, e.g., Epstein et al., supra note 296, at 595 (“Virtually all existing literature exploring the
constraint imposed on Justices by the separation of powers system asserts that the constraint is
far more--or, at the extreme, exclusively--operative in cases calling for the Court to interpret a
law rather than on cases asking the Court to assess a law’s constitutionality.”) (citation
omitted).


313

See Epstein & Knight, supra note 95, at 142-43 (discussing the tools of the legislature beyond
overrides, including “hold[ing] judicial salaries constant, impeach[ing] justices, and pass[ing]
legislation to remove the Court’s ability to hear certain kinds of cases”); Peretti, supra note
100, at 137-58 (summarizing formal and informal checks on the Supreme Court); Whittington, supra
note 295, at 449 (“Congress may, for example, impeach and remove federal judges, and it can also
attempt to pack the judiciary.... Although Congress may not reduce the salary of judges, it may
allow judicial compensation to be eroded over time by inflation. The legislature can, more
generally, control the funding of the judicial branch....”).


314

As Keith Whittington explains, however, these weapons are blunt instruments in that they are not
necessarily case specific, and thus Congress must weigh a variety of factors in deciding whether to
employ them. See Whittington, supra note 295, at 450 (“In deciding whether to sanction the Court
for an immediate divergent decision, the legislature must weigh the costs of that decision against
the discounted present value of various convergent decisions that might be expected in the
future....”).


315

See Rosenberg, supra note 55, at 377 (“The late 1950s and early 1960s saw a flurry of Court-curbing
bills and bills have been introduced in the 1970s and early 1980s withdrawing federal court
jurisdiction over substantive areas such as school prayer, abortion, and busing.”). In addition,
near misses obviously count, given the doctrine of anticipated reaction. See id. at 397
(“[E]nactment of Court-curbing bills is not necessary to curb the Court. Arousing substantial
opposition to the Court may be enough to dominate it.”). There are more near misses than are
recounted in this paragraph.


316

See Barry Friedman, “Things Forgotten” in the Debate over Judicial Independence, 14 Ga. St. U. L.
Rev. 737, 740-41 (1998) (noting that the attempt to impeach Chase was serious enough that it
prompted Chief Justice John Marshall to suggest giving the Senate the power to overturn judicial
decisions).


317

See Friedman, supra note 115, at 26-38 (documenting legislation passed by Congress that stripped
judicial jurisdiction over Reconstruction in the McCardle case and the Court’s response of bowing
to legislative determination); Rosenberg, supra note 55, at 381 (explaining that the McCardle Court
buckled to the jurisdiction-stripping measure).


318

See Friedman, supra note 115, at 38-45 (describing three changes that Congress made to the Court
size between 1860 and 1870 and the effect this had on the reversal of the determination of the
constitutionality of legal tender).


319

See supra notes 46-48.


320

See Shugerman, supra note 117, at 925 (“After Red Monday, Congress pressed a full attack against
the Court’s jurisdiction and its decisions. The most threatening proposals failed narrowly, but
they succeeded in pushing the Court into retreat.” (citations omitted)); see also L.A. Powe, Jr.,
The Politics of American Judicial Review: Reflections on the Marshall, Warren, and Rehnquist
Courts, 38 Wake Forest L. Rev. 697, 717-18 (2003) (“Congress responded [to Red Monday] by
delivering the near death experience to the Court which, having got the message, quickly retreated
to its 1951 position (of sustaining the constitutionality of the program).” (citations omitted)).


321

Ernest A. Young, The Rehnquist Court’s Two Federalisms, 83 Texas L. Rev. 1, 95-103 (2004)
(discussing limits on the Court’s ability to confront the political branches and history’s
confirmation of these “institutional factors”).


322

See Epstein & Knight, supra note 95, at 144 (“[G]overnment actors can refuse, implicitly or
explicitly, to implement particular constitutional decisions, thereby decreasing the Court’s
ability to create efficacious policy.”); Fallon, supra note 3, at 5 (“The term implementation
invites recognition that the function of putting the Constitution effectively into practice is a
necessarily collaborative one, which often requires compromise and accommodation.”); Salzberger,
supra note 298, at 351-52 (“[T]he notion of an independent judiciary requires also that these
decisions, once given, would not be altered or ignored by the government....”); Pedro C. Magalhaes,
The Limits to Judicialization: Legislative Politics and Constitutional Review in Iberian
Democracies 285 (2003) (unpublished Ph.D. dissertation, Ohio State University) (on file with
author) (“Political actors and elected officials in general can attempt to constrain judicial
decisions by simply threatening non-compliance....”).


323

See Richard H. Pildes, Democracy, Anti-Democracy, and the Canon, 17 Const. Comment. 295, 306 (2000)
(explaining that the Supreme Court’s failure to order relief in Giles v. Harris was rooted in the
Court’s reluctance to issue orders it could not enforce).


324

1 Warren, supra note 39, at 759.


325

See Steven J. Brams, Negotiation Games: Applying Game Theory to Bargaining and Arbitration 178-81
(1990) (suggesting that Justices Burger and Blackmun voted against the President in United States
v. Nixon not out of true preference but due to their anticipation that Nixon would defy the court
if they decided in his favor).


326

The deliberations regarding Brown v. Board of Education may be the most famous example. See
Hutchinson, supra note 168, at 34-44 (noting that the Court placed heavy emphasis on reaching a
decision that would garner broad public support in addition to selecting a remedy that would be
enforced).


327

Eskridge & Frickey, supra note 13, at 39 (“Lawmaking institutions routinely send ‘signals’ to one
another--expressions of preference that have no traditionally understood legal ‘authority.”’).


328

See, e.g., Epstein & Knight, supra note 95, at 145-46 (discussing amicus briefs and exposure to
news as two ways Justices receive information about cases); Eugenia Froedge Toma, Congressional
Influence and the Supreme Court: The Budget as a Signaling Device, 20 J. Legal Stud. 131, 141
(1991) (suggesting that Congress uses the judicial budget to signal its approval or disapproval of
Court decisions).


329

See Whittington, supra note 294, at 28 (“Presidents are better positioned to challenge judicial
authority than is the legislature.”). Whittington’s book-length study of the relationship between
presidential leadership and Supreme Court behavior suggests that attacks on the Court are most
likely during “reconstructive presidencies”: “[P]residents come to office opposed to the
established regime but at a time when that order is weak and collapsing.” Id. at 36.


330

See Epstein & Knight, supra note 95, at 85-88 (arguing that the success rate of the solicitor
general may be explained by the fear of retaliation by Congress and the President that the Justices
anticipate in cases that the government wants them to hear). Segal and Spaeth analyzed the
influence of the Solicitor General and determined that influence itself was largely attitudinal:
conservative Justices supported a conservative Solicitor General; liberal Justices a liberal
Solicitor General. Segal & Spaeth, Revisited, supra note 75, at 412 (“[O]ur research has shown that
virtually every justice serving between 1953 and 1982 supported the party favored by the Solicitor
General in amicus curiae briefs over half the time.”).


331

See Rosenberg, supra note 55, at 389-94 (citing several examples of the Court deciding
controversial cases against congressional preferences, only to have Congress engage in reprisals);
see also Stuart S. Nagel, Legal Process from a Behavioral Perspective 278-79 (1969) (examining
seven periods of court-curbing behavior and describing this pattern: “judicial provocation, the
existence of circumstances that act as catalysts or as retarders, a set of congressional and
Presidential responses, and judicial counteraction”).


332

See Epstein et al., supra note 296, at 610 (finding that “strong ideologues on the Court...vote in
accord with their preferences regardless of the preferences of the ruling regime [here, the
President],” but stating that “moderate Justices...are more likely to vote conservatively when
there is a moderate or conservative president”). The paper has its difficulties. In terms of
individual Justice voting, only Justices White and Black yield statistically significant results,
and even their shifting votes can be explained otherwise (e.g., Black’s voting seems to reflect his
general conservative shift in values over time; White commonly voted for the government, whoever
that happened to be). The more interesting results are with regard to the Court majority, which is
the appropriate measure in any regard, but the method of reporting makes it difficult to assess how
strong the influence of the President is. Id. at 604 (simply providing a scattergram that indicates
some, but not uniform, executive influence).


333

See Friedman & Harvey, supra note 64 (using empirical data to demonstrate that the Supreme Court is
more likely to overturn legislation when an ideologically similar Congress is in place); accord
Rebecca Bill Chavez et al., A Theory of the Politically Independent Judiciary 16 (2004)
(unpublished manuscript, on file with author) (stating that as of 1993--when divided government
ended--“the conditions became favorable for a Court-led move in the conservative direction”). But
see Jeffrey A. Segal & Chad Westerland, The Supreme Court, Congress, and Judicial Review, 83 N.C.
L. Rev. 1323, 1340 (2005) (testing and disagreeing with the hypothesis that the Court is free to
overturn laws only when the Court and Congress are ideologically aligned and finding instead that
the likelihood of the Court overturning legislation increases only as the Court becomes more
conservative).


334

Segal & Spaeth, Revisited, supra note 75, at 348.


335

See supra note 61.


336

Kramer, supra note 60, at 167.


337

Post & Siegel, supra note 61, at 2020-32 (urging the Court to adopt the policentric model for
Section Five legislation in order to facilitate a crucial connection between law and politics).


338

Robert C. Post & Reva B. Siegel, Protecting the Constitution From the People: Juricentric
Restrictions on Section Five Power, 78 Ind. L.J. 1 (2003).


339

Id. at 43.


340

Id. at 44.


341

Kramer, supra note 60, at 14.


342

See Levinson, Empire-Building, supra note 13, at 961-63 (questioning how the motivations facing
judges would lead to an expansionist judiciary in the first place).


343

Tennessee v. Lane, 541 U.S. 509 (2004) (upholding Title II of the Americans with Disabilities Act
as a valid exercise of congressional power); Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003)
(upholding Congress’s right to enact the Family Medical Leave Act, despite the precedents of Lopez
and Morrison).


344

Grutter v. Bollinger, 539 U.S. 306 (2003).


345

Lawrence v. Texas, 539 U.S. 558 (2003) (overruling Bowers v. Hardwick, 478 U.S. 186 (1986), and
holding that states may not criminalize homosexual sodomy).


346

Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (holding that a U.S. citizen being held as an enemy
combatant is entitled to a due process right to contest the basis of his detention); Rasul v. Bush,
542 U.S. 466 (2004) (holding that the district court has jurisdiction over claims by Guantanamo Bay
detainees).


347

See Jeffrey Rosen, One Eye on Principle, the Other On the People’s Will, N.Y. Times, July 4, 2004,
at D3 (“Every time any White House has tried to cut Congress and the courts out of the loop, the
Supreme Court has responded by insisting on its own prerogatives. Since presidential overreaching
has repeatedly provoked judicial backlash, the Bush administration may have itself to blame for its
recent judicial defeats.”). Public opinion--which will be discussed at greater length below--is
also cited as a factor allowing the Supreme Court to rule as it did in these cases. See id.
(“Throughout history, the court has tended to challenge the president only when it knows that the
public will support its intervention.”).


348

538 U.S. 721 (2003).


349

529 U.S. 598 (2000).


350

531 U.S. 356 (2001).


351

Although this is a relatively comprehensive catalogue of influences, it still could be more
complete. There is no discussion here of the way that state government officials might constrain
judicial review, though much of what has been said of the separation-of-powers game is applicable.
In addition, it is obvious that at least some of the Justices are increasingly aware of what the
international community thinks. See Roper v. Simmons, 125 S. Ct. 1183, 1187 (2005) (Kennedy, J.)
(describing at length the overwhelming weight of international opposition to the juvenile death
penalty and concluding that “[i]t does not lessen our fidelity to the Constitution or our pride in
its origins to acknowledge that the express affirmation of certain fundamental rights by other
nations and peoples simply underscores the centrality of those same rights within our heritage of
freedom”); Lawrence v. Texas, 539 U.S. 558, 577 (2003) (Kennedy, J.) (“The right the petitioners
seek in this case has been accepted as an integral part of human freedom in many other
countries.”); Printz v. United States, 521 U.S. 898, 977 (1997) (Breyer, J., dissenting) (comparing
the U.S. system to international federal systems and noting that “their experience may...cast an
empirical light on the consequences of different solutions to a common legal problem”).


352

See Tushnet, supra note 116, at 70 (discussing how the Rehnquist court lived on the knife’s edge of
its two different Republican wings and how Justices Kennedy and O’Connor were central to the
outcomes); Linda Greenhouse, The Year Rehnquist May Have Lost His Court, N.Y. Times, July 5, 2004,
at A1 (“Justice O’Connor, perhaps the court’s leading pragmatist, cast only five dissenting votes
in the entire term, far fewer than anyone else, and was in the majority in 13 of the 18 most
closely decided cases, more often than any other justice.”).


353

See Tushnet, supra note 116, at 54 (discussing Justice O’Connor’s fact-specific approach to
problems); Greenhouse, supra note 352, at A1 (“[T]he most consequential debate on the court today
may be not so much over first principles, but over how far to carry those principles.”).


354

531 U.S. 356 (2001) (holding that suits for money damages under the Americans with Disabilities Act
are constitutionally barred by states’ Eleventh Amendment immunity).


355

538 U.S. 721 (2003) (holding that suits for money damages under the Family and Medical Leave Act
did not violate states’ Eleventh Amendment immunity).


356

478 U.S. 186 (1986) (upholding as constitutional a Georgia statute that criminalized sodomy).


357

539 U.S. 558 (2003) (striking down as unconstitutional a Texas statute that criminalized sodomy).


358

Sandra Day O’Connor, The Majesty of the Law: Reflections of a Supreme Court Justice 166 (2003); see
also Sandra Day O’Connor, Public Trust as a Dimension of Equal Justice: Some Suggestions to
Increase Public Trust, Ct. Rev., Fall 1999, at 10, 13 (“We don’t have standing armies to enforce
opinions, we rely on the confidence of the public in the correctness of those decisions. That’s why
we have to be aware of public opinions and of attitudes toward our system of justice, and it is why
we must try to keep and build that trust.”); supra note 351 (discussing Justice Kennedy’s reactions
to public opinion).


359

Different strands of thought put this differently. Some say independent judges stand to protect
minorities against majority will. See supra notes 54-56. Others suggest that judicial review
constitutes an appeal from the people drunk to the people sober. Mark V. Tushnet, Justice Brennan,
Equality, and Majority Rule, 139 U. Pa. L. Rev. 1357, 1370 (1991) ( “John Drunk to John Sober.”).
Still others believe judicial review serves to separate out fundamental values or constitutional
meaning from the preferences of ordinary politics. See 1 Bruce A. Ackerman, We the People:
Foundations 3-33 (1991) (extolling two-track democracy, in which judicial review serves to separate
constitutional meaning from ordinary politics); Barry Friedman & Scott B. Smith, The Sedimentary
Constitution, 147 U. Pa. L. Rev. 1, 58 (1998) ( “This is the single most important function of a
constitution--to limit present preferences in light of deeper commitments.” (citations omitted)).


360

See, e.g., Kramer, supra note 38; Stephen M. Griffin, Judicial Supremacy and Equal Protection in a
Democracy of Rights, 4 U. Pa. J. Const. L. 281 (2002); Post & Siegel, supra note 61.


361

Epstein & Knight, supra note 95, at 157 (“Because they operate within the greater social and
political context of the society as a whole, the justices must also attend to those informal rules
that reflect dominant societal beliefs about the rule of law in general and the role of the Supreme
Court in particular--the norms of legitimacy.”).


362

See, e.g., William Mishler & Reginald S. Sheehan, The Supreme Court as a Countermajoritarian
Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 Am. Pol. Sci. Rev. 87, 90,
96 (1993) (noting “the close correspondence between the trends in the Supreme Court decisions and
the liberalism of the public mood across most of the period” and ultimately concluding that public
opinion and Supreme Court decisions influence each other in an iterative process).


363

See infra note 365. Congruence could be a result of the Supreme Court influencing public opinions,
but here there is greater skepticism. If anything, studies tend to show the opposite: Supreme Court
decisions harden opinion in the opposite directions. See Charles H. Franklin & Liane C. Kosaki,
Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion, 83 Am. Pol. Sci.
Rev. 751, 768 (1989) (finding that Roe v. Wade tended to reinforce the views of those who opposed
discretionary abortions); Michael J. Klarman, How Great Were the “Great” Marshall Court Decisions?,
87 Va. L. Rev. 1111, 1182 (2001) (“Supreme Court rulings often produce unpredictable backlash
effects.”).


364

See David G. Barnum, The Supreme Court and American Democracy 287-99 (1993) (studying the trend
line of public opinion across the issues of free speech, race relations, contraception, and
criminal justice; comparing them to Supreme Court decisions; and concluding that the decisions
closely followed the public opinion trend line in each area).


365

See Jonathan D. Casper, The Politics of Civil Liberties (1972) (comparing the Supreme Court’s civil
rights, national security, and criminal rights decisions with public opinion polls); Thomas R.
Marshall, Public Opinion And The Supreme Court 2 (1989) (examining nearly 150 nationwide polls and
corresponding Court decisions since the mid-1930s); Robert Weissberg, Public Opinion and Popular
Government (1976) (comparing the Court’s rulings and opinion polls in school integration, death
penalty, and school prayer cases); David G. Barnum, The Supreme Court and Public Opinion: Judicial
Decision Making in the Post-New Deal Period, 47 J. Pol. 652, 654-64 (1985) (focusing on the
relationship between the policy preferences of the Supreme Court and those of the American public
on selected issues of public policy, such as birth control, interracial marriage, the role of
women, and abortion, in the post-New Deal period); Beverly B. Cook, Public Opinion and Federal
Judicial Policy, 21 Am. J. Pol. Sci. 567 (1977) (examining the relationship between public opinion
on the Vietnam War and federal judges’ sentencing decisions between 1967 and 1975); Kevin T.
McGuire & James A. Stimson, The Least Dangerous Branch Revisited: New Evidence on Supreme Court
Responsiveness to Public Preferences, 66 J. Pol. 1018, 1019 (2004) (“By analyzing Supreme Court
liberalism through the lens of reversals alone, we show that the impact of public mood is far
greater than previously documented.”); Francine Sanders Romero, The Supreme Court and the
Protection of Minority Rights: An Empirical Examination of Racial Discrimination Cases, 34 Law &
Soc’y Rev. 291 (2000) (exploring the impact of public opinion on racial discrimination cases from
1954-1996).


366

See Mishler & Sheehan, supra note 362, at 96 (finding that “a reciprocal relationship appears to
have existed between the ideology of the public mood in the United States and the broad ideological
tenor of Supreme Court decisions”); Stimson et al., supra note 302, at 555 (“Court decisions do, in
fact, vary in accord with current public preferences. Every point in PUBLIC OPINION shift produces
a (significant) movement of .30 points in Court policy.”).


367

See Gregory A. Caldeira, Courts and Public Opinion, in The American Courts: A Critical Assessment
303, 313 (John B. Gates & Charles A. Johnson eds., 1990) for a review of the literature. Caldeira,
writing fifteen years ago, was somewhat tentative in his conclusions regarding the relationship
between popular opinion and judicial outcomes because the methodological problems are difficult.
See id. at 316 (“Does the Supreme Court represent public opinion? The answer, I think, is that we
do not yet have sufficient evidence on which we can place much confidence. The extant studies,
although intriguing and suggestive, lack the conceptualization and measurement to permit us to make
a well-considered judgment on this issue.”).


368

Peretti, supra note 100, at 177; see also id. at 101-11 (reviewing the literature).


369

See Dahl, supra note 293, at 286-90 (discussing times that the Court frustrated the will of the
lawmaking majority); Barry Friedman, Dialogue and Judicial Review, 91 Mich. L. Rev. 577, 634-49,
604 n.135 (1993) (conceding that “[i]n the First Amendment context...the Court most unabashedly
seems to take on the majority in the name of minority rights”).


370

347 U.S. 483 (1954). See Klarman, supra note 55, at 22 n.96, for a discussion of the massive
southern resistance.


371

See Kenneth M. Dolbeare & Phillip E. Hammond, The School Prayer Decisions from Court Policy to
Local Practice 31-33 (1971) (reporting on school district rates of noncompliance with school prayer
decisions); Jesse H. Choper, Consequences of Supreme Court Decisions Upholding Individual
Constitutional Rights, 83 Mich. L. Rev. 1, 78 (1984) (“Few decisions of the Supreme Court have
generated greater political hostility and popular noncompliance than those proscribing prayer and
Bible reading in the public schools....” (citations omitted)).


372

See supra note 358; see also Tushnet, supra note 116, at 176 (discussing a law clerk’s description
of the way Justice Kennedy would “constantly refer to how it’s going to be perceived, how the
papers are going to do it, how it’s going to look”).


373

See Tushnet, supra note 116, at 178 (explaining Justice Kennedy’s awareness that “if judges went
too far, the political system would slap them down”); Posner, supra note 298, at 30 (“When the
Court is wrong, its decision will create an outcry. Its decision will be ignored or challenged, and
if it is challenged, the Court will eventually backtrack or risk losing its legitimacy.”).


374

See Nagel, supra note 331, at 272 (“One can readily hypothesize... that when strong, prestigious
groups are on the side of Congress, the attack is strengthened, and when such groups defend the
Supreme Court, the attack is weakened.”); J. Mark Ramseyer & Eric B. Rasmusen, Measuring Judicial
Independence: The Political Economy of Judging in Japan ix (2003) (“If voters like judicial
independence, the politicians who survive electoral challenges will tend to be those who supply it;
if voters prefer that their judges respond to the popular will, the politicians who survive will be
those who supply that responsiveness instead.”); Jack Knight & Lee Epstein, On the Struggle for
Judicial Supremacy, 30 Law & Soc’y Rev. 87, 113 (1996) (“[O]ur study shows that presidents (and, we
suspect, Congress) must act strategically when it comes to the Court. If they do not, as Jefferson
knew, they can face severe political penalties.”).


375

Matthew C. Stephenson, Court of Public Opinion: Government Accountability and Judicial
Independence, 20 J.L. Econ. & Org. 379, 381 (2004) (modeling the impact of public opinion on
judicial review and demonstrating that “strong public opposition to government interference with
judicial power, judicial rubber-stamping of government action, and apparent government deferral of
politically difficult issues to courts can all arise as equilibria within the same simple
framework”).


376

Georg Vanberg, The Politics of Constitutional Review in Germany 20 (2005); accord id. at 14 (“[T]he
principal inducement for governing majorities to comply with high court decisions is the threat of
a loss of public support for elected officials who refuse to be bound by them.”); see also
Whittington, supra note 295, at 460 (“An attack on the courts may provoke a public backlash against
those who seek to subvert a cherished national institution....”).


377

See, e.g., 14,000 Pack Garden, Cheer La Follette in Attack on Court, N.Y. Times, Sept. 19, 1924, at
A1. These attacks likely failed because of a lack of sufficient popular support. See Rosenberg,
supra note 55, at 384 (“The defeat of Bryan demonstrated to Congress and Court alike that
opposition to the Court’s solicitous approach to business did not have strong support among
voters.”); id. at 384-85 (discussing how the 1924 defeat of La Follette signaled low support for
the “Court-curbing plan”).


378

See David Adamany, The Supreme Court’s Role in Critical Elections, in Realignment in American
Politics 229, 244 (Bruce A. Campbell & Richard J. Trilling eds., 1980); C. Herman Pritchett,
Congress Versus the Supreme Court: 1957-1960, at 119 (1973) (“[A] sense of the fitness of things
was outraged when Franklin Roosevelt proposed to lay hands on an economically conservative Court in
1937....”); Gregory A. Caldeira, Public Opinion and the U.S. Supreme Court: FDR’s Court-Packing
Plan, 81 Am. Pol. Sci. Rev. 1139, 1146-47 (1987) (discussing how the actions of the Court led to
the rise and fall of popular support for Roosevelt’s Court-packing plan).


379

See supra notes 46-48 and accompanying text.


380

See Lucas A. Powe, Jr., The Warren Court and American Politics 407-08 (2000); Pritchett, supra note
378, at 121 (describing the Court backing down in the face of popular controversy); Mark Tushnet,
The Warren Court as History: An Interpretation, in The Warren Court in Historical and Political
Perspective 1, 6 (Mark Tushnet ed., 1993) (same).


381

See Lawrence Baum, Membership Change and Collective Voting Change in the United States Supreme
Court, 54 J. Pol. 3, 13 (1992) (finding that the conservative shift of the Burger Court was due in
part to changing issues and positions taken by the Justices); Friedman, supra note 52, at 215
(noting the end of the Warren Court era that followed Nixon’s election).


382

One commentator noted:

Justices themselves have some knowledge of what appears in the law reviews, they have a great deal
of knowledge of what appears in the newspapers and in the popular press in general, they themselves
travel in the same social circles in which the country’s intellectual elite travels, and they also
travel in the same professional circles in which legal academics often travel.

Schauer, supra note 70, at 628.


383

See Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme
Court, 148 U. Pa. L. Rev. 743, 744 (2000) (describing a rise in amicus filings over time). Kearney
and Merrill note that “not only are more cases attracting amicus filings, but it is clear that the
intensity of participation--whether measured in terms of the mean or median numbers of briefs per
case--is also rising.” Id. at 754.


384

See D.A. Easton, A Systems Analysis of Political Life 273 (1965) (conceptualizing diffuse support
as “a reservoir of favorable attitudes or good will that helps members to accept or tolerate
outputs to which they are opposed or the effect of which they see as damaging to their wants”).


385

See Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme Court, 36
Am. J. Pol. Sci. 635, 640 (1992) (examining diffuse support for the Supreme Court and finding that
“a majority...believe people should be willing to do everything they can to defeat a proposal to
abolish the Supreme Court”).


386

See Caldeira & Gibson, supra note 385, at 658 (“[T]he mass public does not seem to condition its
basic loyalty toward the Court as an institution upon the satisfaction of demands for particular
policies or ideological positions....Diffuse support for the Supreme Court among the mass public
is, rather, associated with basic facets of individuals such as political values.”); Valerie J.
Hoekstra, The Supreme Court and Local Public Opinion, 94 Am. Pol. Sci. Rev. 89, 97 (2000) (finding
that an individual’s support for the Court after a controversial ruling is strongly influenced by
that individual’s prior perception of the Court; prior attitudes account for 77% of variation in
attitudes toward the Court, supporting the idea that diffuse support tempers popular
interpretations of judicial decisions).


387

531 U.S. 98 (2000).


388

See, e.g., James L. Gibson et al., The Supreme Court and the U.S. Presidential Election of 2000:
Wounds, Self-Inflicted or Otherwise?, 33 Brit. J. Pol. Sci. 535, 555 (2003), available at
http://www.artsci.wustl.edu/~ polisci/gibson/bjps2003.pdf (“[T]he ruling in Bush v. Gore did not
greatly undermine the legitimacy of the Court....”); Herbert Kritzer, The Impact of Bush v. Gore on
Public Perceptions and Knowledge of the Supreme Court, 85 Judicature 32, 38 (2001) (“The Supreme
Court’s action was dramatic, subject to unprecedented media coverage, controversial, and to many
very surprising.... Nonetheless, the effects [on public opinion] are modest.”).


389

See Caldeira, supra note 367, at 324 (“Opinion leaders, unlike members of the mass public,
apparently condition commitment to the Court as an institution upon agreement with judicial
policies.”).


390

There is disagreement about the extent to which the public’s perception of a neutral Court is
fundamental to the Court’s legitimacy. Compare Post, supra note 61, at 107 (suggesting that the
public will abandon the Court if it “comes to believe that the Court is using its decisions as a
screen to advance a nonlegal, cultural agenda”), and Tom R. Tyler & Gregory Mitchell, Legitimacy
and the Empowerment of Discretionary Legal Authority: the United States Supreme Court and Abortion
Rights, 43 Duke L.J. 703, 778 (1994) (using empirical analysis to probe the basis of the Court’s
legitimacy and finding that “perceptions of Court neutrality primarily shape judgments of
legitimacy and obligation”), with Louis Michael Seidman, Our Unsettled Constitution: A New Defense
of Constitutionalism and Judicial Review 8-9 (2001) (arguing that people will not be upset by a
nonneutral Court, and, in fact, what he calls “an ‘unsettled constitution’ helps build a community
founded on consent by enticing losers into a continuing conversation”). Work by Hibbing and
Theiss-Morse indicates that what the public might like about the Court is that it can be trusted to
make decisions that do not affect their own material well being. See John R. Hibbing & Elizabeth
Theiss-Morse, Stealth Democracy: Americans’ Beliefs About How Government Should Work 158 (2002)
(“The Supreme Court is relatively popular...mostly because their decisions are not perceived to
affect their own material well-being.”).


391

Cf. supra note 389.


392

Caldeira & Gibson, supra note 385, at 656.


393

See Posner, Possibility, supra note 15, at 30 (“When the Court is wrong, its decision will create
an outcry. Its decision will be ignored or challenged, and if it is challenged, the Court will
eventually backtrack or risk losing its legitimacy.”).


394

See Barnum, supra note 364, at 289 (“[T]he distinct trend of public opinion during that past forty
years has been in the direction of greater support for the free speech rights of at least selected
unpopular groups.”).


395

See Robert H. Durr et al., Ideological Divergence and Public Support for the Supreme Court, 44 Am.
J. Pol. Sci. 768, 774 (2000) ( “[A]ggregate Court support responds to public evaluations of Court
behavior, but for various reasons, the impact of temporary shocks is relatively short-lived.”);
Anke Grosskopf & Jeffery J. Mondak, Do Attitudes Toward Specific Supreme Court Decisions Matter?
The Impact of Webster and Texas v. Johnson on Public Confidence in the Supreme Court, 51 Pol. Res.
Q. 633, 652 (1998) ( “Respondents who agreed with both the abortion and the flag-burning decisions
gave the Court minimal credit...,but people who disagreed with one or both edicts reacted more
strongly against the Court in response.”).


396

Studies typically show that the Court’s salience is low in the public mind. See Peretti, supra note
100, at 167 (“Clearly the Supreme Court lacks salience for most Americans. Its members are quite
unfamiliar to them and, especially significant, ‘many...Supreme Court decisions pass by virtually
unnoticed by most Americans.”’); Caldeira, supra note 367, at 303 (describing the Court’s “lack of
saliency in all but a few situations”).


397

See Hibbing & Theiss-Morse, supra note 390, at 99 (reporting the results of a 1998 poll showing
that 68% of those polled approved of the Supreme Court and further noting that “the Supreme Court
has consistently been the most favored institution of government”); Marshall, supra note 365, at
140-41 (citing polling figures that show the Court to be the most popular of the three branches of
the federal government over time).


398

See Peretti, supra note 100, at 181-82 (arguing that the Court will find itself in trouble if it
persistently decides issues “out of sync with dominant public opinion”); Caldeira, supra note 367,
at 325 (“So long as the justices maintain a low profile and policies reinforce expectations, basic
political values will shape attitudes toward the Supreme Court.”).


399

See John Dillin, Bush’s Call Sparks Ardent Debate, Christian Sci. Monitor, July 6, 1989, at 8
(reporting that the flag-burning debate had “exploded like Fourth of July fireworks” in the wake of
“Bush’s campaign for a constitutional amendment to protect the flag”).


400

See Kevin L. Yingling, Justifying the Judiciary: A Majoritarian Response to the Countermajoritarian
Problem, 15 J.L. & Pol. 81 (1999), for an extended discussion of these competing positions.


401

See Friedman, supra note 52, at 162-67 (observing that if an “interest in democratic theory” was
what actually drove “theory about the countermajoritarian difficulty,” it would be evidenced by
scholarly writing on the democratic shortcomings in other areas of governance).


402

For work pursuing this question, see Friedman, supra note 288, and Barry Friedman, Mediated Popular
Constitutionalism, 101 Mich. L. Rev. 2596 (2003).


403

See supra note 106; see also Friedman, supra note 288.


404

See, e.g., Epstein & Knight, supra note 300, at 625 n.1 (describing the rapid increase in strategic
scholarship after 1994).


405

See supra note 291 (quoting exaggerated claims about law’s place in judicial decisionmaking).


406

See supra notes 295-99 and accompanying text.


407

As Larry Sager explains, “It is part of the intellectual fabric of constitutional law and its
jurisprudence that there is an important distinction between a statement which describes an ideal
which is embodied in the Constitution and a statement which attempts to translate such an ideal
into a workable standard for the decision of concrete issues.” Lawrence Gene Sager, Fair Measure:
The Legal Status of Underenforced Constitutional Norms, 91 Harv. L. Rev. 1212, 1213 (1978)
(citation omitted); see also Dworkin, supra note 16, at 380 (using the example of Justice Hercules,
who is “free to concentrate on the issues of principle” and does not share the practical concerns
of actual justices); Sager, supra, at 1213 (noting the “difference between the meaning of a
normative precept and the application of that precept through the modeling or a theory of structure
of analysis”).


408

See, e.g., Levinson, Rights Essentialism, supra note 13, at 900 (“[C]onstitutional rights so
routinely include prophylactic components that attempting to distinguish the ‘real’ right from its
‘remedial’ ingredients is both hopeless and pointless.”); id. at 926 (“Rights are designed to work
in the real world, which means that their shape will always be influenced by pragmatic concerns
about implementation and enforcement.”).


409

See Vermeule, Interpretive Theory, supra note 13, at 581-82 (discussing the difficulty with
pursuing ideal interpretive theory rather than taking institutional features into account).


410

See supra notes 18-21 and accompanying text (discussing the system of checks and balances).


411

See Posner, Possibility, supra note 15, at 37-38 (“The Supreme Court’s role is, in the end, a
historical accident, and so it is no surprise that its role is not what it would be in an ideal
system constructed by academics.”).


412

Fallon, supra note 3, at 4-5.


413

See, e.g., id. at 4-5; Kramer, supra note 38; Peretti, supra note 100; Mark Tushnet, Taking the
Constitution Away from the Courts (1999); Balkin & Levinson, supra note 60, at 1066-83; Friedman,
supra note 288, at 1282-84; Molot, supra note 56; Post, supra note 61, at 8; Reva B. Siegel, Text
in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297,
350-51 (2001).


414

A. E. Dick Howard, Toward Constitutional Democracy: An American Perspective, 19 J.L. & Pol. 285,
288 (2003) (listing the Founders’ concept of judicial review as one of the core principles of
modern constitutionalism not only in the United States but also in many other countries).


415

See Sager, supra note 1, at 8 (“It was anticipated that the Constitution would be hard to amend,
and in practice it has been remarkably so.”); Posner, Possibility, supra note 15, at 1 (“The
Constitution evolves, but slowly and discontinuously, because conventions, by virtue of the fact
that they coordinate behavior, are ‘sticky.”’).


416

See Friedman, supra note 288, at 1290-91 (describing the national discussion that results when the
Supreme Court makes significant constitutional decisions).


417

See Barry R. Weingast, The Political Foundations of Democracy and the Rule of Law, 91 Am. Pol. Sci.
Rev. 245, 245 (1997) (arguing that “democratic stability depends on a self-enforcing equilibrium”
and that “it must be in the interests of political officials to respect democracy’s limits on their
behavior”); Barry R. Weingast, Self-Enforcing Constitutions: With an Application to Democratic
Stability in America’s First Century (2003) (unpublished manuscript), available at http://
lawweb.usc.edu/cslp/conferences/modeling_const_02/documents/weingast.pdf (applying a theory of
self-enforcing constitutions to the early United States, and arguing that, but for a gap created by
various crises over slavery, the U.S. Constitution was self-enforcing by 1800 and has continued to
be so).


418

Indeed, this positive analysis shows how the central puzzle of much constitutional theory presents
a false choice. Thus, Lawrence Sager asks: “Why are we prepared to concede decisions about
fundamental political justice to a combination of ancient constitution-making majorities and
contemporary courts?” Sager, supra note 1, at 3. Answer: we aren’t.


419

See Friedman, supra note 288; Friedman & Smith, supra note 359.


420

See Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional
Scholarship, 95 Nw. U. L. Rev. 933, 935, 952-53 (2001) (suggesting that legal scholars are uniquely
well-positioned “to make normative claims about how constitutional cases should be resolved”).


421

See Friedman, supra note 52.


422

See Friedman, supra note 21 (advancing this argument).


423

See supra notes 200-03 and accompanying text.


424

See supra notes 205, 208.


425

See supra notes 247-55.


426

See Fallon, supra note 3, at 41 (“I believe that the Court’s role in crafting doctrinal tests and
especially standards of review is better captured by the term implementation than by the term
interpretation....My central claims involve the multifaceted and largely practical nature of the
Supreme Court’s function within a shared project of constitutional implementation.”).


427

See id. at 33-34 (“[C]ourts must...ask what the main threats to constitutional values are at any
particular time, which rules would work more or less effectively to protect those values, and what
the empirical effects of alternative rule structures would be.”).


428

See generally Sager, supra note 1, at 8, 79, 149 (arguing that any minimal conception of justice
must include the opportunity for individuals to seek material gain).


429

As I have earlier noted,

Many judges think legal academics are not relevant anymore. As they see it, our work is overly
abstract and too theorized to be of any use to them....The problem could be that in bygone days
legal scholarship was more openly and doctrinally normative....It could be that legal academics
feel they cannot be openly and doctrinally prescriptive in the way judges would like. Legal realism
has made us skeptical of doctrine. Everyone knows doctrine alone does not decide all cases, or at
least all of the hard ones.

Friedman, supra note 420, at 953.


End of Document

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