Public Law and Judicial Politics
The Status of the Field
Public law, judicial politics, or law and politics today enjoys a highly problematic status as a subfield of political science. Even its name is in doubt. Once one of the five or six major subdisciplines, it has, to some degree, avoided the fragmentation of some of the others. It remains one of the larger subdisciplines in numbers of practitioners and publications. Yet it has become one of the more minor fields in terms of status within the discipline. Few, if any, public law political scientists are numbered among the stars of the discipline as Corwin and Cushman once were. Many departments have reduced judicial politics to a sub-subfield of American politics. During much of the 1980s, a striking proportion of the top departments, including Harvard, Yale, Chicago, Michigan, and Stanford had no senior person devoted to principally to teaching in the field. Through promotion, some senior lateral hiring, and the joint appointment of law faculty to political science departments, the situation is now somewhat improved. Nevertheless, several generations of Ph.D's are depleted, and in only a handful of major departments is there more than one senior person of national reputation devoting full time to political-science-based (as opposed to law-based) instruction in law and politics.
Vigorous efforts are being made to fill the gap by the Law and Courts Organized Section of APSA. A committee of the section, chaired by Austin Sarat, prepared a major report on the state of the discipline, and, in conjunction with the section, the Review of Politics has announced it will devote one issue a year for three years to law and politics studies (see the "Special Issue on Public Law," Summer 1992).
Intellectual change typically is overdetermined and full of chicken and egg problems. A number of paradoxes associated with the decline of the subfield can be noted even though describing them falls short of a causal explanation. The central paradox involves constitutional law and the Supreme Court. Until the 1950s, "public law" was usually thought of as containing three distinct entities that together formed the field while each also performed a vital service to another major field. The three were constitutional law, administrative law, and international law, linked respectively to American politics, public administration, and international relations. Moreover, another small but distinct field, "government regulation of business," called heavily on the services of public law political scientists.
Then, in a bipolar, cold war world, particularly as interpreted by the dominant Morgenthau school of international relations scholars, international law came to seem a meaningless facade. The number of international law teachers and scholars in political science declined to near zero. Even those international relations specialists seeking non-Clauswitzian facets somewhere in the family of nations, now concerned themselves, not with international law, but international organization.
Under the impact of the "behavioral revolution" the policy studies areas of political science such as government regulation fell away. Public administration became administrative behavior and organization, with administrative law, like all law, treated as one of those formal screens which investigators had to penetrate in order to discover real political behavior.
In American politics, too, behaviorism tended to denigrate formal legal and constitutional structures and language as mere appearances behind which real and quantifiable political behavior lurked. Yet the power of the Supreme Court to declare laws unconstitutional was too big and too dramatic to permit as great a decline in constitutional law as occurred in administrative and international law. Constitutional law remained as the eroded but still visible remnant of what had been "public law." Even in the remnant, however, much of "constitutional law" became "judicial behavior," and most of judicial behavior became the analysis of the votes of the justices of the Supreme Court in particular cases. In