Law and Policy
More and Less than a Dichotomy
WITHIN AND BEYOND THE ACADEMIC WORLD, the most frequent question about judicial behavior is the balance between law and policy.1 To what extent do judges act to make good law, and to what extent do they act to make good public policy?
Some participants in the debate over this question depict judging as entirely law-oriented or entirely policy-oriented.2 The all-legal position is expressed most often by judges themselves, as it was in Chief Justice John Roberts’s analogy between judges and baseball umpires at his confirmation hearing (U.S. Senate 2005, 55). The all-policy position is expressed most often by political scientists whose models of decision-making exclude legal considerations (Segal and Spaeth 2002). In contrast, many people who address this issue argue that judges act on the basis of both legal and policy considerations (Gillman 2001b; Whittington 2000).
Regardless of their positions in this debate, however, scholars and others typically treat law and policy as separate and separable. Scholars also tend to treat legal and policy considerations as the only valid explanations of judicial decision-making; other motives that might affect judges’ choices are left aside. Thus judging is analyzed as a dichotomy between law and policy, in which judges’ choices can be understood in terms of the relative weights of those two considerations alone.
This perspective on judging has provided the basis for a great deal of fruitful research, but it oversimplifies the reality of judging. In this chapter I explore