The Constrained Court: Law, Politics, and the Decisions Justices Make

The Constrained Court: Law, Politics, and the Decisions Justices Make

The Constrained Court: Law, Politics, and the Decisions Justices Make

The Constrained Court: Law, Politics, and the Decisions Justices Make


How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? The Constrained Court combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court.

Michael Bailey and Forrest Maltzman show how two types of constraints have influenced the decision making of the modern Court. First, Bailey and Maltzman document that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The authors find considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, Bailey and Maltzman show that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president.

The Constrained Court shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.


Few decisions in American politics are more important than those reached by the justices of the United States Supreme Court. These nine judges routinely make decisions involving the most significant social and political issues in the country. They decide, among other things, whether government can mandate health insurance, detain suspected terrorists without a trial, ban abortion, or execute criminals who are mentally impaired.

How do justices make these momentous decisions? Many political scientists claim justices have essentially no constraints and, as political creatures, use their positions on the bench to pursue their ideological predilections. In this view, law does not matter. Likewise, according to this view the preferences of elected officials do not matter. Instead, justices themselves are like elected officials who use the power of their office to advance their policy goals.

This explanation has much to recommend for it. It moves past naive views of justices as apolitical legal sages. And it is consistent with empirical evidence that suggests that the votes cast by the justices frequently split along predictable ideological lines. For this reason, it has become a part of the political science canon.

But is it right? Do justices simply base their decisions on the policy preferences they bring to the bench? Many lawyers, students of American politics, judges, and political scientists believe that there is more to justices’ decision-making. Elaborate opinions, cites to precedent, and even the robes suggest something beyond a purely political Court. Without denying the role of politics, many scholars and lawyers argue that law really does matter. According to this view, legal doctrine, not just policy preferences, constrains the decisions justices reach. Others argue that the legislative and executive branches also can constrain justices. In this view, the Supreme Court and its justices act interdependently with the other branches that make up the American political system. As such, the actions of justices depend in part upon the preferences of elected political actors.

While such explanations are intuitive, they are hard to prove empirically. Throughout this book, we provide evidence that justices are not simply pursuing their policy preferences. Instead, they are subject to constraints, whether they come from their internal value systems or from external political forces. We have wrestled with this task for eight years, and the result is a model that allows us statistically to identify legal and institutional influences on justices. To test this model, we have created a . . .

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