On the Study of Judicial Behaviors
Of Law, Politics, Science, and Humility
Stephen B. Burbank
IT IS FITTING that I have been asked to help set the stage for this volume by comparing legal and political science models of judicial behavior and the light they shed on what judges do. I am not only a law professor; I am an old law professor. Moreover, a legal scholar commenting on an article that I published in 1997 called it the work of a “committed formalist, “ which was not intended as a compliment (Neuborne 1997, 2094). Who better to channel William Blackstone than an aged “committed formalist?”
In seeking to help set the stage for this volume, I first briefly review what I take to be the key events and developments in the history of the study of judicial behavior in legal scholarship, with attention to corresponding developments in political science. I identify obstacles to cooperation in the past—such as indifference, professional self-interest, and methodological imperialism—as well as precedents for cross-fertilization in the future.
Second, drawing on extensive reading in the political science and legal literatures concerning judicial behavior, I seek to identify the most important lessons that we have learned, or should have learned, to date, as the springboard for progress in the future. The first lesson is that the relationship between law and judicial politics (as I define them) is not monolithic; it varies among courts and, even on the same court, among cases. As a result, we should speak of “judicial behaviors” rather than “judicial behavior.” The second lesson is that there is no dichotomy between law and judicial politics; they are complements, each needing (or relying on) the other. The third lesson is that the mix of law and