Law Is Politics
Frank B. Cross
JUDICIAL DECISION-MAKING is commonly analyzed by contrasting the legal model with the attitudinal model (Segal and Spaeth 2002). This formulation can be misleading. The law, including that used by judicial decisions, is a subset of politics. The fundamental definition of politics is something like “the art and science of government.” Because the judicial system is a central part of our government, it is a central part of our politics. Just as statutes are a product of our political system, so are judicial decisions. As Judge Posner puts it,” [L] aw is shot through with politics” (Posner 2008, 9).
The research on the determinants of judicial decision-making remains important, but not for the simplistic reasons commonly expressed. Empirical research has clearly demonstrated that judicial ideology is a statistically significant determinant of judicial outcomes. This is sometimes portrayed as a disproof of the legal model and evidence that judges are violating their authority and not making decisions according to law. In fact, such ideological decision-making may well be decision-making according to law, as it is a subset of politics. Theoretically, a judiciary might be instructed by a legislature, or the constitution, to make ideological decisions, in which case the courts would be carrying out the law with such ideology. While such an express extreme delegation is far from the rule in the United States, the delegation of some ideological decision-making is not.
The judiciary makes political decisions, either because that is the intent of the elected branches or because it is inevitable. Such decisions are not purely political, because the judiciary is considerably constrained by the content of