Law and Politics in Judicial and Supreme Court Decision Making

Authored by: J. Mitchell Pickerill , Christopher Brough

Routledge Handbook of Judicial Behavior

Print publication date:  October  2017
Online publication date:  October  2017

Print ISBN: 9781138913356
eBook ISBN: 9781315691527
Adobe ISBN:

10.4324/9781315691527.ch2

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Abstract

In political science, the attitudinal model and strategic model have been the predominant theories of Supreme Court decision making. Both models indicate that justices decide cases primarily based on their policy preferences (or ideology). Research on the topic has usually pitted these models against a formalistic legal model. Under the legal model, law would determine outcomes and trump ideology. The legal model has been said to be unfalsifiable. Because of the focus on ideology, research moved in a direction that argued that judicial decision making had to be based on either politics or law, but not a mixture of both. Several lines of research have offered different conceptualizations of law in Supreme Court decision making, and in judicial decision making more generally. We review how many scholars today reject the formalistic and determinative version of the legal model, analyze how legal interpretation is influenced by ideology, and examine how law and ideology overlap. For example, political developments and debates outside of the judiciary come to influence understandings of how law ought to be interpreted, and those migrate into the courts through the judicial selection process. Finally, empirical research has shown how law acts as a constraint on ideology in judicial decision making.

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