Thomas M. Keck, Syracuse University. Email: Tmkeck [at] maxwell.syr.edu.
The OXFORD HANDBOOK OF LAW AND POLITICS is a fabulous collection of essays. Its forty-five chapters include something for everyone in the law-and-courts community. In fact, despite my repeated efforts to prepare for this essay by focusing on the chapters most relevant to my own research on the Supreme Court and American constitutionalism, I kept getting distracted by excellent chapters on comparative and international law, particularly the contributions by Kim Lane Scheppele (on extralegal emergencies), Karen Alter (on the European Court of Justice), Tom Ginsburg (on the global spread of judicial review), and Ran Hirschl (on the worldwide judicialization of politics).
Other readers will rightly praise different aspects of the collection, but I would like to emphasize several chapters that, taken together, make a strong case for the independent significance of law and legal institutions in shaping American politics. Distilling the key contributions of a wide range of literatures, these chapters make clear, first, that courts play an influential role in policy change and political development, and second, that their performance of this role is shaped in important ways by distinctive legal norms and commitments. Put another way, these chapters emphasize the multiple ways in which law influences the decisions of judges, the actions of other lawmakers, the outcomes of policy processes, and the trajectory of political conflicts. This research paradigm has the distinct advantage, from my perspective, of accurately characterizing the significance of legal phenomena that have sometimes been neglected or misunderstood. In addition to its substantive merits, this research agenda has the potential to encourage greater attention from the broader discipline of political science to legal ideas, legal actors, and legal institutions. But this potential will only be realized if the broader discipline is aware of this research, and on this count, the Oxford Handbook series is a mixed bag.
One of the great strengths of the law and politics handbook is its broad representation of each of the three principal paradigms of empirical research in contemporary political science: large-n behaviorism, rational choice modeling, and historical institutionalism. After an opening essay by the editors, a section on “Approaches” presents three chapters, each of which surveys one of these three paradigms as it has been deployed in the field of law and courts. And in the forty-one more narrowly focused chapters that follow, each of the three paradigms shows up repeatedly. But in the other volumes of the Oxford Handbook series – many, if not all, of which cover territory that is of interest to (some) law-and-courts scholars, the subfield has been less than fully represented.
Consider, first, several chapters from the law and politics volume. In “Historical [*1104] Institutionalism and the Study of Law” – one of the broad paradigm chapters that opens the book – Rogers Smith briefly surveys the disciplinary origins of, and recent theoretical advances in, the historical institutionalist wing of political science and the distinctive ways in which law-and-courts scholars have made use of this approach. Smith makes a strong pitch for continued attention to the distinctive role of legal ideas in shaping judicial behavior in particular and political development more broadly. Among other things, he notes, the failure to attend to such relatively autonomous “normative orders” risks “undue minimization of the role of courts in politics” (p.55). In a closely related chapter on “Law and Political Ideologies,” Julie Novkov examines “the relationship between law and ideas in the historical process of constitutional and legal change” (p.627). Drawing on recent historical institutionalist accounts of several noteworthy lines of nineteenth- and twentieth-century constitutional development, Novkov argues that extant political “ideology[ies] shape the way courts make decisions, providing boundaries or frameworks within which decisions are made.” In addition, with the causal arrows running the other direction, she emphasizes that “the language of judicial decisions themselves can generate ideological change” (p.628).
In a chapter on “Courts and the Politics of Partisan Coalitions,” Howard Gillman surveys the contemporary literature on regime politics and the courts. The primary theme of this literature is that governing coalitions use judicial institutions to promote their own partisan and policy ends, but as Gillman makes clear, the distinctive features of courts shape both the nature and degree of the coalitions’ success in this regard. Indeed, the regime politics literature has documented a variety of “circumstances or conditions that would allow judges to promote unexpected agendas” – for example, when they are addressing an issue that “central decision-makers in the regime care little about,” one on which regime leaders are genuinely divided, or one on which “judges [have] arrive[d] at some independence by virtue of internalizing their legal training and taking seriously the distinctive institutional ‘mission’ of the judiciary” (pp.656-7). Mark Graber explores similar themes in “Constitutional Law and American Politics,” emphasizing the multifarious ways in which constitutional norms structure political and legal conflicts, without dictating the specific outcome of those conflicts. Citing a range of contemporary literature on constitutional development, Graber notes that “[i]deology often explains the differences between persons engaged in a constitutional debate, but law usually explains the debate they are having” (p.310). He argues that judges and legislators alike “act on the basis of constitutional visions that structure their policy choices” (p.317) and that “institutional affiliations influence constitutional decision-making” by fostering particular constitutional visions among judges that are less prevalent among legislators (and vice versa) (pp.314-15). He ends by calling for greater scholarly attention to the nature and value of the distinctive constitutional principles that tend to be disproportionately held by judges.
In addition to the Smith-Gillman-Graber-Novkov school of constitutional development, the scholarly tradition of [*1105] legal mobilization is also well represented in the volume. Among political scientists, this interdisciplinary tradition is associated most closely with Michael McCann, and his chapter provides a wonderfully clear and concise survey of its 35-year history. Among the many lessons of this research, McCann notes, is the observation that ordinary citizens, left to their own devices, “rarely mobilize law,” usually responding to legally cognizable injuries by deciding to “lump it” rather than to litigate (p.531). But despite this widespread and realistic sense that the formal legal system is stacked against ordinary folks, legal mobilization scholars have repeatedly found circumstances in which “subaltern groups and relatively powerless citizens [have the capacity] to mobilize the law against more powerful groups and status quo relations,” particularly when the ordinary citizens are effectively mobilized by organized interest groups (p.525). Surveying this same line of research in a separate chapter on “Law as an Instrument of Social Reform,” Charles Epp notes that legal mobilization scholars have often shown that “judicial decisions (and law more broadly) [are] potentially effective in contributing to long-term social changes” (p.603). As a result, “court-structured law may have a broader social-reform impact than once thought” (p.597). Exploring some related themes, Scott Barclay and Susan Silbey mine the literature on legal consciousness to develop an original account of the impact of legal mobilization in prompting otherwise unresponsive legislative institutions to enact policies supported by the public. Most of the scholars cited by McCann, Epp, Barclay and Silbey would identify themselves as “law and society” scholars rather than historical institutionalists, but the two communities share overlapping memberships and a number of methodological and substantive commitments, and McCann ends his chapter by calling for greater integration between the two approaches (p.535).
All of the chapters I have mentioned here assert the broad political significance of legal ideas, legal actors, and legal institutions. Graber argues that “[c]onstitutions and constitutional law consistently secure agreements where agreements would otherwise not exist” (p.305). Smith notes that judges often have “some relative autonomy from broader political forces, indeed real power to affect political results” (p.48). McCann insists that “legal mobilization is one of the most important but least studied modes of citizen participation in the U.S. political system and perhaps around the world” (p.527). And Hirschl suggests that “[t]he judicialization of politics – the reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies – is arguably one of the most significant phenomena of late twentieth and early twenty-first century government” (p.199). If these claims are right, then the literatures surveyed in these chapters are relevant not just to the law-and-courts community but to the broader discipline of political science. Gillman makes this point most explicitly, opening his chapter by noting that “[o]ne of the most promising ways of integrating the study of law and courts into the mainstream of political analysis is to focus more attention on how legal institutions figure into the broader interests and agendas of other power holders,” and closing it by calling for “scholars across various [*1106] fields . . . to reintegrate courts into the broader analysis of political systems” (pp.644, 658).
Unfortunately, the law and politics handbook is likely to draw attention only from specialists, and law-and-courts research is not well-represented in the other volumes in the Oxford Handbook series. As summarized on Oxford’s website, The OXFORD HANDBOOKS OF POLITICAL SCIENCE is a ten-volume series that purports to serve as “the essential guide to the state of political science today.” Readers of LAW AND COURTS should all be pleased that one of these ten volumes has been devoted to law and politics, and that the editors of this volume have so ably assembled a collection that captures the full range of the law-and-courts subfield. But we might well be concerned about the representation of the subfield in the other nine volumes.
The handbooks of political behavior, public policy, and contextual political analysis have no entries from the field of law and courts. The handbook of comparative politics has one chapter (out of 38 total) on “Comparative Judicial Politics”; the handbook of international relations has one (out of 44) on “International Law”; and the handbook of political methodology has, by my count, just one chapter (out of 37) that is authored by a law and courts scholar. The other volumes do somewhat better in covering our subfield, but not much. The handbook of political economy has one chapter on “The Judiciary,” as well as several chapters on constitutional theory. The handbook of political theory has an entry on “Constitutionalism and the Rule of Law” as well as several chapters on topics that are related to the field of law and courts, including rights, liberty, and equality. And the handbook of political institutions has two chapters on constitutions and two others on judicial institutions. It is hard to say whether these numbers represent an adequate allocation. Given the ambitious scope of these volumes, their editors faced a daunting task, and I’m confident that every member of the discipline could identify important topics that were left under-examined. More important than the number of chapters devoted to law and courts, however, is the limited range of research that these chapters have covered.
Consider THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, published in 2006. The editors of this volume present its 38 chapters as a collective effort to survey “the origins, evolution, and impact of institutions on politics and policy alike” (p.xvi), but the research paradigm I have surveyed here – the large body of literature relying principally on interpretive and historical methods to document the independent political significance of law and legal institutions – goes almost entirely unmentioned in the volume.
In a chapter on “Historical Institutionalism,” Elizabeth Sanders includes one brief (and favorable) reference to contemporary studies of constitutional development, citing Ken Kersch’s award-winning CONSTRUCTING CIVIL LIBERTIES. In a chapter on “Analyzing Constitutions,” Peter M. Shane likewise offers praise for contemporary historical institutionalists who seek “to show how the attitudes of legal actors, especially judges, are shaped not only by individual preference, but also by the institutions [*1107] through which these actors operate and the relationship of those institutions to others” (2006, 192). But Sanders focuses almost entirely on historical institutionalist studies of legislative and executive institutions (and the social movements that have shaped them) and Shane focuses almost entirely on conventional legal scholarship.Neither devotes more than a paragraph to historical institutionalist studies of constitutional development. Josep M. Colomer’s chapter on “Comparative Constitutions” does not mention such work at all.
Two chapters on judicial institutions devote sustained attention to the central questions that are present throughout the law and politics volume, but they too largely ignore the research traditions that I have emphasized here. In a chapter on “The Judicial Process and Public Policy,” Kevin McGuire (2006, 536) examines more or less the same question as Epp – “Are judges capable of actually producing changes within society?” – but presents a strikingly different picture of the state of contemporary research on this question. Relying extensively on Donald Horowitz’s 1977 THE COURTS AND SOCIAL POLICY and Gerald Rosenberg’s 1991 THE HOLLOW HOPE, McGuire emphasizes the limited ability of courts to implement their decisions. On his account, “[t]he very nature of adjudication . . . serves as a serious limitation on the extent to which courts can generate meaningful legal change” (2006, 539). These constraints include the fact that “adjudication tends to focus on a limited range of policy alternatives” – that is, those presented by the two litigants – and that judges are generally presented with “only limited amounts of information upon which to base decisions.” To make matters worse, judges “have little capacity to summon additional information” that might help, and they have “no formal mechanism by which [they] can examine the ongoing impact of their policies.” In addition, “policy-making through adjudication requires that judges be presented with a genuine legal controversy that plainly presents the issues that judges wish to address. Stated differently, courts do not speak until spoken to” (2006, 540-2).
As is common with this sort of judicial impact scholarship, McGuire contrasts this cramped reading of judicial capacity with an expansive vision of legislative capacity: “When Congress seeks to develop new policies in telecommunications or agriculture or foreign policy, it gathers information, conducts committee hearings, and considers testimony for various affected interests.” Unlike judges, elected legislators “routine[ly] . . . seek to gather as much information and analysis as they deem useful on the impact of various policy alternatives.” They are “free to consider what policies they regard as most sensible, even if those policies constitute major departures from the status quo.” They commonly define the terms of art used in their policies, thereby “reduc[ing] ambiguity and allow[ing] for a common understanding of the meaning of policy enactments,” and they “need nothing beyond their own initiative to stimulate policy change. They may promote reform whenever they see fit” (2006, 540-1). As McGuire himself acknowledges at the end of the chapter, this is an overly romantic account of the legislative process in the U.S. Congress (2006, 550). As a result, McGuire’s conclusion that “courts require considerable [*1108] cooperation and support from other actors as a condition for effective policy-making” is not wrong, but neither does it distinguish courts from other institutions (2006, 546).
Toward the end of the chapter, McGuire notes in passing “that the role of courts around the world is . . . expanding, with judges assuming an ever increasing scope of influence” (2006, 550), and James Gibson opens his chapter on “Judicial Institutions” by noting that “[l]egal institutions throughout the world have become increasingly powerful” (2006, 514). Gibson closes with an even stronger assertion that “[l]aw and courts are not marginal to politics; they are central, and this is increasingly being understood by the entire discipline of political science” (2006, 531). But neither McGuire nor Gibson offer any examination of the mechanisms of judicial influence on policy and politics. The central thrust of McGuire’s chapter is to show that judges face daunting “institutional constraints that limit their policy ambitions” (2006, 536), and Gibson’s chapter focuses primarily on the question of judicial decision-making. On Gibson’s account, such decision-making is primarily a function of judges’ ideological preferences, tempered by their views of appropriate judicial behavior and by their understandings of other significant actors’ views about appropriate judicial behavior. He notes that “the single-minded pursuit of policy goals may on occasion threaten the legitimacy of a court, and therefore judges will act to protect the institution rather than maximize policy preferences” (2006, 522).
Despite its clear relevance to this argument, Gibson does not engage with the Smith-Gillman-Graber-Novkov line of research, apparently because of a fundamental methodological divide. (He notes that “the empirical question of how . . . beliefs about proper behavior influence actual decision-making can only be resolved through careful empirical analysis, based mainly on positivist methods” (2006, 521).) Likewise, the authors of the one chapter on law and courts in The OXFORD HANDBOOK OF COMPARATIVE POLITICS – John Ferejohn, Frances Rosenbluth, and Charles Shipan – attend almost solely to research using formal or statistical methods, despite the clear relevance of a variety of interpretive and historical works to their central thesis that political fragmentation increases judicial independence. This methodological divide – which James Mahoney and Gary Goertz (2006) have characterized as a tale of two distinct cultures – shows up in the law and politics handbook as well, with chapters by Jeffrey Segal, Lee Epstein, and others dismissing certain qualitative and interpretive lines of research out of hand.
One of the great virtues of the volume, as I noted at the outset, is the extent to which its forty-five essays collectively represent the diverse range of research that makes up the subfield. In addition to the constitutional development and legal mobilization scholarship that I have emphasized here, the research summarized elsewhere by McGuire, Gibson, Ferejohn, Rosenbluth, and Shipan is also well represented in the law and politics handbook, as well it should be. But the research summarized by Smith, Novkov, Gillman, Graber, McCann, Epp, Barclay, and Silbey is not well represented in the other handbooks. In short, the editors of THE OXFORD [*1109] HANDBOOK OF LAW AND POLITICS have done an admirable job of surveying, summarizing, and (by implication) praising the methodological pluralism of the subfield, but the message may not be getting out.
Alter, Karen J. 2008. “The European Court and Legal Integration: An Exceptional Story or Harbinger of the Future?” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 209-28.
Barclay, Scott, and Susan S. Silbey. 2008. “Understanding Regime Change: Public Opinion, Legitimacy, and Legal Consciousness.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 663-78.
Colomer, Josep M. 2006. “Comparative Constitutions.” In THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, ed. by R.A.W. Rhodes, Sarah A. Binder, and Bert A. Rockman. New York: Oxford University Press, 217-38.
Epp, Charles R. 2008. “Law as an Instrument of Social Reform.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 595-613.
Ferejohn, John; Frances Rosenbluth; and Charles Shipan. 2007. “Comparative Judicial Politics.” In THE OXFORD HANDBOOK OF COMPARATIVE POLITICS, ed. by Carles Boix and Susan C. Stokes. New York: Oxford University Press, 727-51.
Gibson, James L. 2006. “Judicial Institutions.” In THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, ed. by R.A.W. Rhodes, Sarah A. Binder, and Bert A. Rockman. New York: Oxford University Press, 514-34.
Gillman, Howard. 2008. “Courts and the Politics of Partisan Coalitions.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 644-62.
Ginsburg, Tom. 2008. “The Global Spread of Constitutional Review.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 81-98.
Graber, Mark A. 2008. “Constitutional Law and American Politics.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 300-320.
Hirschl, Ran. 2008. “The Judicialization of Politics.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 119-141. [*1110]
Kersch, Ken. 2004. CONSTRUCTING CIVIL LIBERTIES: DISCONTINUITIES IN THE DEVELOPMENT OF AMERICAN CONSTITUTIONAL LAW. Cambridge: Cambridge University Press.
Mahoney, James, and Gary Goertz. 2006. “A Tale of Two Cultures: Contrasting Quantitative and Qualitative Research.” POLITICAL ANALYSIS 14 (Summer): 227-49.
McGuire, Kevin T. 2006. “The Judicial Process and Public Policy.” In THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, ed. by R.A.W. Rhodes, Sarah A. Binder, and Bert A. Rockman. New York: Oxford University Press, 535-554.
Novkov, Julie. 2008. “Law and Political Ideologies.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 626-43.
Sanders, Elizabeth. 2006. “Historical Institutionalism.” In THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, ed. by R.A.W. Rhodes, Sarah A. Binder, and Bert A. Rockman. New York: Oxford University Press, 39-55.
Scheppele, Kim Lane. 2008. “Legal and Extralegal Emergencies.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 165-84.
Shane, Peter M. 2006. “Analyzing Constitutions.” In THE OXFORD HANDBOOK OF POLITICAL INSTITUTIONS, ed. by R.A.W. Rhodes, Sarah A. Binder, and Bert A. Rockman. New York: Oxford University Press, 191-216.
Smith, Rogers M. 2008. “Historical Institutionalism and the Study of Law.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 46-59.
Whittington, Keith E. 2008. “Constitutionalism.” In THE OXFORD HANDBOOK OF LAW AND POLITICS, ed. by. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira. New York: Oxford University Press, 281-299.
© Copyright 2008 by the author, Thomas M. Keck.