The Impact of Positive Political Theory on Old Questions of Constitutional Law and the Separation of Powers

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Two of the oldest and most frequently recurring constitutional questions are: to what extent should courts defer to the other branches of government, and what is the best judicial philosophy? These two normative questions are subsumed within the broader issue of the role of the judiciary within the separation of powers system. Scholarly conceptions of the role of the judiciary have been shaped by three key approaches: traditional theories, such as legal formalism, conceive of judges as impartial law discoverers; attitudinalists and legal realists see judges as partisan law creators; positive political theorists perceive judges to be strategic actors who maximize utility within a constrained environment. This Essay explores the contribution of positive political theory, an important new political science technique, to the study of judicial politics. Positive political theory allows scholars to address the broader question of judicial role without requiring resolution of the normative questions underlying it.

Traditionally, fundamental questions of judicial deference and philosophy were answered through heavy reliance on assertions regarding inherent judicial character and normative directives regarding judicial responsibility and ideal behavior. Judicial impartiality and "judicial restraint," which encompasses various methods of judicial minimalism and avoidance of conflict with the elected branches, were seen as the primary limitations on judicial discretion and power.1 Attitudinalists and legal realists provided evidence that judges do not always fit such idealized conceptions; rather, judges commonly follow their policy preferences.2 Attitudinalists and realists have typically gone to the opposite extreme, assuming that judges are entirely unconstrained. But these scholars have been unable to show that judges always act in a way consistent with their apparent policy preferences.3 Judges may often act in accordance with their own policy preferences, but judges also make rulings that defy their general ideological leanings. Further, judges do sometimes defer to legislatures and administrative agencies, thus limiting their own reach.

Reconciling the extremism of attitudinalist and realist theory requires two modifications: first, recognizing that judges are constrained not only by their self-imposed limits but also by their institutional limitations; and second, recognizing that judges, like other intelligent decisionmakers, will behave strategically by balancing principle with practicality, rather than pursuing their preferred policy outcomes when doing so is too costly. Positive political theory ("PPT") provides a means of specifying when these two conditions are met.

PPT applied to the courts provides a means of analyzing legal and judicial dilemmas and simultaneously captures the expected behavior of extrajudicial actors. It does so by incorporating the motivations, powers, and limitations of all relevant actors in a condensed form. In doing so, PPT elucidates first, the effect of constitutional rules, such as the President's nomination power and the Senate's advice and consent power, upon the judiciary;4 second, the impact of judicial decisions on other actors, such as the deference given to administrative agencies;5 and third, the effect of internal judicial norms, such as the Rule of Four, on case outcomes and intracourt relationships.6

The judiciary's institutional limits and costs, which in turn define the extent of judicial freedom to act, are determined by the position of the judiciary relative to the other separation of powers actors: the President, Congress, administrative agencies, and other relevant institutions. The formal constraints that operate on the judiciary force it to consider the likely responses of the other institutional players to its decisions. For instance, being overturned by Congress is institutionally costly to the courts, as overrides make the courts appear weak, lower their legitimacy, and waste judicial resources. …


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