Politics and the Courts: Toward a General Theory of Public Law

As a graduate student in public policy analysis/political science under the precise direction of Lettie M. Wenner, a prominent public law researcher, I recall being somewhat bewildered by the numerous conflicting results of public law analyses, which seemed to lack cohesion. Research efforts to that point were quite impressive in terms of their contribution to understanding decision making by the courts. As an attorney who had practiced law and served as a law clerk to a state court judge (civil division), many of the attacks of public law analysts on the presumed objectivity and impartiality of the courts seemed justified to me.

Any law student who has suffered through three years of examinations that require erudite comprehension of the law, and who has spent countless hours reading through cases in search of the law, has some intuitive sense that the great cases that are important precedents (primarily U.S. Supreme Court cases) lack internal consistency and meaning, and are perhaps molded not so much by enlightened constitutional analysis as by the political and cultural environment of presiding judges and their personal preferences.

My subsequent practice as an attorney tended to confirm these early suspicions, as I observed that the best attorneys are those who are able to win the "unwinnable" cases, in which both the facts and the law appear to offer little support to their clients. Further, the most successful attorneys seem to spend more time on their yachts, playing golf, and driving European cars than their less successful counterparts, who are often found madly searching for the law in law libraries. In short, some of the best attorneys seemed to prosper not so much due to their intellectual powers as due to their awareness of court politics. These are the lawyers who know where to file a particular case and

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