What's Law Got to Do with It? What Judges Do, Why They Do It, and What's at Stake

By Charles Gardner Geyh | Go to book overview

1 What’s Law Got to Do with it
Thoughts from “the Realm of Political Science”

Jeffrey A. Segal

CHIEF JUSTICE ROBERTS has declared himself to be a believer in precedent, a follower of the rule of law, an umpire calling balls and strikes:

Somebody asked me, you know, “Are you going to be on the side of the little
guy?” And you obviously want to give an immediate answer, but, as you reflect
on it, if the Constitution says that the little guy should win, the little guy’s going
to win in court before me. But if the Constitution says that the big guy should
win, well, then the big guy’s going to win, because my obligation is to the Con-
stitution. That’s the oath.” (Roberts 2005)

While this may have been mere show, it wasn’t mere show just for the Judiciary Committee. In a recent speech at the University of Arizona’s Rehnquist Center, Roberts declared that the shift to a Supreme Court filled exclusively with former appellate judges took constitutional law out of “the realm of political science” and onto “the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?”(Liptak 2009).

Let’s leave aside for the moment the fact that Roberts’s assertions are empirically false—justices who served on lower appellate courts are not more likely to abide by precedent, and are not less likely to vote ideologically than are judges without appellate court experience (Epstein et al. 2009). What is the realm of political science? A quick answer is that political science examinations of judicial decision-making have focused on four partially overlapping models of such behavior: the legal model, the historical institutional model, the attitudinal model, and the strategic model.

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