Feldman - The Rule of Law or Politics

The Rule of Law or the Rule of Politics?
Harmonizing the Internal and External Views of Supreme Court Decision Making
Stephen M. Feldman
Law professors and political scientists generally subscribe to opposed theories of Supreme Court decision making. Law professors, to a great degree, adhere to an internal view: Supreme Court justices decide cases according to legal rules, principles, and precedents. Political scientists follow an external view: justices decide cases according to their political ideologies or preferences. This article develops an interpretive-structural theory that harmonizes these seemingly opposed views. This interpretive-structural theory not only explains why the internal and external views often are both effective but also why, sometimes, one approach might be more effective than the other. The article concludes by comparing the interpretive-structural theory with the new institutionalism that is emerging in political science. Do the Supreme Court justices decide cases according to either the rule of law or their political preferences? Since the start of the modern era of American legal education, the tension between these internal and external views has riddled jurisprudence. The rst Dean of Harvard Law School, C. C. Langdell, and his disciples enunciated an archetypal internal view of adjudication. They maintained that judges decide cases by logically applying the rules and principles embodied in legal precedents (Langdell 1879, viiiix). Langdells contemporary, Oliver Wendell Holmes, Jr., immediately objected,
Stephen M. Feldman is Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. I thank Richard Delgado, Stanley Fish, Sandy Levinson, C. J. Peters, Cass Sunstein, Mark Tushnet, Deb Donahue, Jim Delaney, Joel Selig, Marty Belsky, and Tamara Piety for their helpful comments on earlier drafts. I also thank Ted White for his e-mail message commenting on the internal/external debate. Finally, I appreciate the discussions of earlier drafts that occurred in faculty colloquies at the University of Texas and the University of Tulsa.
n 2005 American Bar Foundation. 0897-6546/05/3001-089$10.00
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LAW & SOCIAL INQUIRY
with his now-famous aphorism: The life of the law has not been logic: it has been experience (1880, 233; 1991, 1). In the 1920s and 1930s, the American legal realists developed the Holmesian critique into an archetypal external view: Judges decisions are responses to stimuli that are substantially independent of legal rules, principles, and precedents (Frank 1930; Llewellyn 1930; Douglas and Thomas 1931). By World War II, however, realism had largely fallen into disrepute within the legal academy. During the postwar era, then, variations on the internal view dominated jurisprudential discussions (Feldman 2000a, 11536). Those few law professors who advocated for the external position were typically dismissed with a disgusted wave of the hand. If they were noticed at all, they were condemned for undermining democracy and the rule of law (Carrington 1984; Jonhson 1984). Yet, while the external view waned in the legal academy, its mantle was taken up by another academic discipline: political science. Political scientists sought to study political actions, including Supreme Court decision making, through the rigorous application of social science techniques (Prichett 1948; Clayton 1999, 1622). Specically, political scientists reasoned that judicial decisions must be reducible to concrete and empirically observable events if the decisions were to be subject to scientic study. Consequently, political science has chiey followed a behavioral approach, focusing on discrete judicial actions or, in other words, at the Supreme Court level, on how the ` -vis their political orientations. Today, few political scijustices vote vis-a entists would dispute that, within their discipline, the leading approach to adjudication is the attitudinal model, which hypothesizes that Supreme Court justices vote their political preferences or ideologies (Segal and Spaeth 1993, 6469). Concomitantly, political scientists tend to denigrate the internal view of adjudication. They condescendingly refer to a so-called legal model, under which lawyers, judges, and law professors supposedly believe that all cases are robotically decided by objectively applying preexisting legal rules to clear and certain facts (Segal and Spaeth 1993, 3353). Consequently, we now have two disciplines, law and political science, studying the same phenomenon, Supreme Court decision making, but doing so from radically different perspectives. Furthermore, academics in the respective disciplines, as a general matter, studiously avoid any serious engagement with members of the other discipline (Epstein, Knight, and Martin 2003, 78384).1 To be sure, this divide between law and political science is partly the product of the forces of professionalization within academic disciplines. Professionalization typically entails the control of a specic type of knowledge, thus enabling a groupthe members of the
1. Eric A. Posner comments that constitutional law scholars ignore a large empirical political science literature that challenges their assumption that courts decide cases on the basis of doctrine and principle (2001, 532). Duncan Kennedy, in A Critique of Adjudication, is an interesting example of a law professor disregarding political science literature. Far from being a traditional legalist, Kennedy describes his approach to adjudication to be methodologically
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professionto monopolize a segment of the economic marketplace (Abbott 1988, 2; Larson 1977, xvi). Put in different words, professionals must justify their own privileges (qua professionals) by claiming to have expertise over an area of knowledge that is useful to society. Therefore, law professors, being trained in the ways of the rule of law, have a vested professional interest in propagating the internal view, while political scientists, being trained in the ways of empirical social science, have a similar vested professional interest in propagating the external view. Nonetheless, more is at stake than professional privilege and prestige. The internal-external debate goes to the very heartor perhaps, more precisely, to the apexof American jurisprudence: How does the Supreme Court decide cases? Consequently, the debate has washed over beyond the disciplinary boundaries of law and political science proper. Legal historians, for instance, have recently become enmeshed in the internal-external debate. Should the famous 1937 switch of the Supreme Court be understood as a product of New Deal political pressures, as argued by William Leuchtenburg, or should it be understood as a product of lawyering and doctrinal changes, as argued by Barry Cushman (Leuchtenburg 1995; Cushman 1998)? The historian Laura Kalman has asserted that the controversy between the externalists and internalists involves the legal academys most enduring concern . . . : the relationship between law and politics. Thus, Kalman concluded, while the debate is old, it is neither tired nor unimportant (1999, 2167). To the contrary, it is so vibrant that G. Edward White, following Kalman, has declared the stakes in the debate [to] have been elevated (Kalman 1999, 2186; White 2000, 31).2 Signicantly, a small but growing cadre of political scientists have begun to develop a methodology that, at least in part, bridges the gap between the internal and external views. The new institutionalists have selfconsciously sought to differentiate themselves from the dominant political science approach of the attitudinal model and its treatment of courts, particularly the Supreme Court, as little more than organizational shells within which judges act according to their individual, predetermined preferences (Clayton and Gillman 1999, 1). Instead, new institutionalists, including Rogers M. Smith, Howard Gillman, and Mark Graber, seek to explore the broader cultural and political contexts of judicial decision making
eclectic. He draws from technical legal analysis, jurisprudence, neo-Marxism, Weberian sociology, semiotics and structuralism, psychoanalysis, historicist narration, Lewinian eld theory, phenomenology, modern ction, and deconstruction (1997, 15). Most remarkably, then, Kennedys eclecticism does not include (postWorld War II) political science, the single discipline that has focused more than any other, except for law, on judicial decision making. 2. Brian Tamanaha argues that the internal-external distinction is becoming increasingly pivotal (1997, xiii). In his recent analysis of adjudication, Duncan Kennedy writes that, for lawyers, the main thing at stake in discussions of the rule of law and objectivity is whether or not judges are, or have to be or ought to be, ideological actors (1997, 24).
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[and thus examine] how judicial attitudes are themselves constituted and structured by the Court as an institution and by its relationship to other institutions in the political system at particular points in history (Clayton and Gillman 1999, 2; Smith, R. 1997; Gillman 1993; Graber 1991).3 The justices goals and motivations, not just their votes, are subjects of inquiry (Clayton and Gillman 1999, 2). New institutionalists view legal ideologies or doctrines as possible causes of or at least constraints on judicial decisions. To be sure, politics is not disregarded, but law is treated neither as epiphenomenal nor as duplicitous subterfuge that hides the true political underpinnings of judicial decisions (Gillman 1993, 1112).4 My purpose in this article is to harmonize the internal and external views of Supreme Court decision making. I explain how, contrary to the dominant perspectives in the disciplines of law and political science, the external and internal views of adjudication are both valid. By doing so, I seek to supplement the emerging new institutionalist literature of political science. While new institutionalists seek to bridge the abyss between law and political science, they nonetheless often continue to suggest a dichotomous conceptualization of law and politics. Gillman, for instance, explained his method in his outstanding book, The Constitution Besieged : [ Judicial decision making] may be motivated by a set of interests and concerns [that is, legal ideologies or doctrines] that are relatively distinct from the preferences of particular social groups, the policies prescribed by particular economic theories, or the personal social and political loyalties and sympathies of individual judges (1993, 11).5 Law and politics, from this perspective, apparently remain conceptualized as (relatively) discrete realms, though Gillman and other new institutionalists importantly maintain that both law and politics can inuence judicial decision making. To be sure, some new institutionalists suggest a more complex integrated approach to the conceptualization of law and politics. Indeed, Gillman himself does so at times, but these suggestions have largely gone undeveloped and unexplicated (1617). My aim, then, is to develop and explain more fully what has merely been hinted at in the new institutionalist literature. I do so by articulating an interpretive-structural theory of judicial decision making that accounts
3. Additional new institutionalist literature includes Bloom 2001; Gillman 2001; Graber 2002a; Hirschl 2000; Richards and Kritzer 2003; Richards and Kritzer 2002; Smith, R. 1988; Whittington 2000. 4. While unusual, there are also some law professors who have sought to bridge the gap between law and political science by directly confronting the political science literature regarding judicial decision making (Grifn 1996; Tamanaha 1997, 2034; Merrill 2003). In a recent interesting article, cowritten by two law professors and two political scientists, the authors compare the internal and external approaches as means for prospectively predicting the outcomes of Supreme Court decisions during a particular term (Ruger et al. 2004). 5. Of course, in the quoted passage, the word relatively might be of the utmost importance, but its signicance nonetheless remains unclear.
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for both the internal and external views of adjudication. Supreme Court decision making requires the justices to interpret legal rules and case precedents. This interpretive processlike any interpretive processis always constrained, even though the constraints are uid and contingent, not xed and stable. Because of these interpretive constraints, legal interpretation is predictable, though never mechanical or methodical. Therefore, the internal view of the law is effective because lawyers, judges, and law professors are constrained in a relatively consistent fashion when they interpret legal texts. Yet, interpretive constraints, being uid and contingent, always encompass political preferences: Politics, in other words, is a constituent element of legal interpretation. For this reason, the external approach of political science is likely to predict Supreme Court decisions with a high degree of accuracy. Moreover, and most signicantly, Supreme Court justices best interpretive judgments are likely to correspond with their political preferences exactly because politics is integral to legal interpretation. The justices, therefore, would rarely experience overt conicts between their political desires and interpretive viewsprecisely because of the nature of interpretation itself. Given this important point, the ostensibly sharp dichotomy between the internal and external views of adjudication is revealed as misleading in its simplicity. Yet, while Supreme Court decision making is always interpretive, an accurate depiction of legal interpretation still does not fully or adequately describe Supreme Court adjudication. While judges, including Supreme Court justices, interpret legal texts, judges are empowered to decide cases not necessarily because they offer the best interpretation of the rules and precedents but rather because they occupy certain structural or social roles within our governmental institutions. On the Supreme Court, the justices always interpret legal texts as part of the adjudicative process, but their ` -vis the disputants and lower courts because decisions are authoritative vis-a of their structural positions within the institutions of American government. This structural component of Supreme Court adjudication has important implications for an understanding of judicial decision making. Perhaps, most important, it illuminates those cases where the justices experience a conict between their best interpretive judgments and their political preferences. To be sure, the justices interpretive and political views are likely to correspond because politics is integral to interpretation. Yet because politics is not the entirety of interpretation, a tension or conict between interpretive and political views is possible. Even in such circumstances, though, the justices are still structurally empowered to decide the case. And here, neither the external (political science) view nor the internal (legal) view has an inherent advantage in explaining or predicting the outcome. Exactly because the justices are empowered to decide because of their structural or institutional positions, they can favor their interpretive or political views in
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any particular instance (if there is a conict). The justices, that is, can vote their politics, or they can vote their interpretive judgments. Part I of this article elaborates the opposition between the external and internal views of adjudication. Part II presents an interpretive-structural theory of Supreme Court decision making that accounts for the validity of both the external and internal views. This interpretive-structural theory of adjudication, in other words, harmonizes the opposed disciplinary approaches of law and political science. Part II concludes by arguing that while the external and internal views are both effective, the external view might be more so. This argument encompasses a discussion of the Courts controversial decisions from 2003: Grutter v. Bollinger and Lawrence v. Texas. Grutter was the equal protection case in which the Court upheld the University of Michigan Law Schools afrmative action program by, in effect, applying strict scrutiny lite, a new type of judicial scrutiny. Lawrence, meanwhile, held that a law criminalizing homosexual sodomy violated substantive due process. Part III, the conclusion, compares the interpretive-structural theory with the new institutionalism that is emerging in political science.
I. THE INTERNAL AND EXTERNAL VIEWS OF ADJUDICATION

C. Herman Pritchett, in his 1948 study of the Roosevelt Court, issued the clarion call for an external or behavioral approach to the study of Supreme Court decision making. I regard law as too important a matter to be left to the lawyers, Pritchett unapologetically declared. My approach to this particular subject is that of a political scientist interested in the social and psychological origins of judicial attitudes and the inuence of individual predilections on the development of law (1948, xi). According to the leading current statement of the external approach, the attitudinal model, ` -vis the Supreme Court decides disputes in light of the facts of the case vis-a the ideological attitudes and values of the justices (Segal and Spaeth 1993, 65). The foremost proponents of the attitudinal model, Jeffrey A. Segal and Harold J. Spaeth, elucidate: Simply put, [William] Rehnquist votes the way he does because he is extremely conservative; [Thurgood] Marshall voted the way he did because he is extremely liberal (1993, 65). Signicantly, Segal and Spaeth marshal an impressive volume of empirical evidence supporting their conclusion that Supreme Court decisions are overwhelmingly explained by the attitudes and values of the justices (Spaeth and Segal 1999, xv). Moreover, they also maintain that empirical evidence demonstrates that traditional legal factors, such as precedent, text, and intent, [have] virtually no impact on Supreme Court decision making (Spaeth and Segal 1999, xv, 286315). Segal and Spaeth thus conclude that, by using the external approach of the attitudinal model, they can predict judicial outcomes
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far better than can lawyers, judges, and law professors who seek to apply and analyze the traditional tools or sources of legal and judicial practice.6 Segal and Spaeths conclusion regarding the causal inuence of political attitudes on Supreme Court decision making is far more persuasive than their conclusion regarding the insignicance of traditional legal factors. The weakness of their condemnation of the internal view of adjudication stems from their cramped vision of a legal model (Segal and Spaeth 1993, 3353). The legal model, as dened by Segal and Spaeth, postulates that the decisions of the Court are based on the facts of the case in light of the plain meaning of statutes and the Constitution, the intent of the framers, precedent, and a balancing of societal interests. In short, according to the legal model, judicial decisions are to be objective, impartial, and dispassionate. Even at the level of the Supreme Court, the rule of law rather than politics decides cases (4, 32). Segal and Spaeths legal model goes awry because it depicts the internal viewpoint of adjudication as if it were substantially unchanged since C. C. Langdell articulated his jurisprudential views shortly after the Civil War. To be sure, one can still nd inuential lawyers, judges, and law professors who articulate the internal viewpoint in terms strikingly similar to Segal and Spaeths legal model. Justice Scalia, for example, has described a common and traditional view of the judicial power in constitutional cases as the only one that can justify courts in denying force and effect to the unconstitutional enactments of duly elected legislatures . . . . To hold a governmental Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it (American Trucking Associations v. Smith 1990, 201, concurring; Scalia 1989). At the same time, though, one can readily nd numerous statements of more sophisticated and exible accounts of stare decisis and the internal view. Steven D. Smith, for one, writes: [F]or many or perhaps most legal issues, arguments using the standard techniques of legal discourse can be constructed to justify inconsistent conclusions. One hardly needs any fancy theory or Derridean perversity to recognize this fact (Smith, S. 1999, 1073). 7 Justice Scalia himself has written: [T]he judicial Power of the United States conferred upon this Court . . . must be deemed to be the judicial power as understood by our commonlaw tradition. That is the power to say what the law is, not the power to change it. I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense make law. But they make
6. For summaries of additional empirical studies that support the attitudinal model, see Cooter 2000, 1599 n. 24, 1600 n. 25; Cross 2000, 154445. Segal and Spaeth have published a new version of their 1993 classic (2002). 7. Another law professor, Arthur J. Jacobson, writes: Not one rule suffers from determinacy in the United States today. Mere law words have completely stopped constraining any judicial decision. I know. Ive litigated (Jacobson 1996, 1755).
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it as judges make it, which is to say as though they were nding it discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be. ( James B. Beam Distilling Co. v. Georgia 1991, 549, concurring in the judgment) It would be fair to say that, today, the internal view of Supreme Court decision makingthat is, how lawyers, judges, and law professors believe the justices reach conclusions on specic casescannot be reduced to a single approach or to some simple and mechanical formula. Of course, this ambiguity of the internal view renders problematic any efforts by political scientists, like Segal and Spaeth, to articulate an empirically falsiable (or veriable) legal model. Even so, the disciplinary needs of political (or other social) scientists for testable and falsiable models cannot dictate the contours of an actual social or institutional practice, such as Supreme Court decision making. So how might one fairly characterize the current internal view? Almost all lawyers, judges, and law professors believe that precedents and legal rules have at least some inuence on judicial decision making (Smith, S. 1999, 104248; Rubin 1987). In the legal academy, even Duncan Kennedy, the king of critical legal studies, has declared his (albeit qualied) belief in the rule of law (1997, 1314). Moreover, a signicant number of law professors undoubtedly still rely in both their teaching and their scholarship either predominantly or exclusively on traditional doctrinal arguments, including the parsing of cases and statutes.8 Even more sophisticated legal scholars often seem to bolster or conclude their arguments by relying ultimately on a somewhat traditional view of stare decisis. Yet most law professors would not admit that they accept a vision of stare decisis and judicial decision making as narrow and mechanical as that asserted by Segal and Spaeth (Graber 2002a, 316). Perhaps, however, many if not most law professors would accept some version of a postrealist conception of stare decisis and legal rules. The crux of this conception of the rule of law is the belief that most cases are decided by logically following legal rules and precedents, but that occasionally, in the gaps or on the edges of the law, other considerations become relevant. As H. L. A. Hart phrased it, a system of legal rules has an open texture because there is a core of certainty and a penumbra of doubt (1961, 119). Most law professors seem to believe, consequently, that judges should turn to policy considerations when confronting a gap (or an area of doubt) in the law. In a 1949 book, Edward H. Levi declared: The mechanism [of legal reasoning] accepts the . . . ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity (1949, 1). Of course, some legal theorists have insisted that judges, when confronting a legal gap, should rely on
8. For examples of such traditional legal scholarship, see Sedler 1997; Parker 1991.
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considerations other than policy, including concerns such as history, communal values, and societal consensus (Bobbitt 1991, 1222; Bobbitt 1982).9 Does this postrealist perspective render the internal view a myth, a straw man that critical legal scholars erect so they can easily knock it down? After all, from the postrealist vantage, judges sometimes consult factors or considerations that are seemingly external to the legal system. Is it still fair, then, to call this approach an internal view? Apparently so. It is worth recalling that, from a historical standpoint, the postWorld War II legal theoristsincluding H. L. A. Hart as well as the legal process scholars, who maintained that constitutional cases should be decided in accordance with neutral principlesreacted against the ostensible prewar realist attacks on the rule of law (Wechsler 1959, 1535; Bickel 1986, 4959). In other words, the postwar theorists sought to rehabilitate the rule of law in the face of the external (and antilegalist) view of judicial decision making articulated by the realists (Feldman 2000a, 10523). It is no coincidence, then, that, from the postrealist perspective, policy considerations (or the analogous alternative factors) are neatly cabined. Politics (or policy) and law are still separate and independent realms. Policy considerations become an appropriate concern only in those instances where a gap (or area of doubt) exists, where the law runs out, so to speak (Schauer 1988, 1729). There are many so-called easy cases, many of which do not get into court at all, much less into an appellate court (Schauer 1985). Despite the arguments of deconstructionists, nobody who is only twenty-seven years old is likely to run for president anytime soon (DAmato 1989). Likewise, if a testator did not have her will witnessed by at least two individuals, then her expressed desires shall be disregarded (Moore 2003, 24). In short, from the postrealist perspective, the traditional view of stare decisis and the rule of law holds in many if not most instances. Judges resolve adjudicative disputes by following comprehensible rules and by reasoning analogically from precedents that have relatively stable meanings. And since judges can resolve disputes in this fashion, lawyers can predict with a high degree of accuracy how potential disputes will be resolved and advise their clients accordingly. The Supreme Court, demonstrating an unusual degree of consensus, recently articulated this postrealist approach in a tax case. In Gitlitz v. Commissioner of Internal Revenue, a dispute revolving around the interpretation of the Internal Revenue Code, seven justices joined Justice Thomass opinion for the Court. The majority opinion acknowledged the policy concern that, according to the Courts interpretation of the statutory provision, corporate shareholders would wrongly experience a double windfall. Yet, the majority reasoned that such political considerations were beyond the Courts ambit because the law was clear: Because the Codes plain
9. Like the realists, though before them, Holmes and Benjamin Cardozo both argued that judges make law in the gaps (Southern Pacic Co. v. Jensen 1917, 221, Holmes, J., dissenting; Cardozo 1921, 11314).
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text permits the taxpayers here to receive these benets, we need not address this policy concern (Gitlitz v. Commissioner of Internal Revenue 2001, 70910). To reiterate, however, generalizing about law professors beliefs is difcult. Undoubtedly, a growing number of legal academics do not believe in anything remotely resembling a traditional or postrealist conception of stare decisis and the rule of law.10 For instance, some law professors now acknowledge that high-level principles or moral values animate the law, especially constitutional law (Balkin and Levinson 2001, 106263). The most prominent legal academic to adopt such a stance is Ronald Dworkin. Unlike many other postrealist theorists, Dworkin insists that the law does not have gaps. Rather, when rules are unclear, judges are to decide in accordance with principles, which Dworkin denes as part of the legal system itself. A principle is a legal standard that is to be observed, not because it will advance or secure an economic, political, or social situation deemed desirable, but because it is a requirement of justice or fairness or some other dimension of morality (1977, 2231). For example, should a person inherit under an otherwise valid will when he murdered the testator? Dworkin reasons that a principleno one should prot through his or her own crimeshould preclude the inheritance. Moreover, Dworkin adds, many constitutional provisions incorporate such legal principles (or moral values) (1977, 23, 13149; 1996, 112). Even so, many legal academics, including ones as philosophically sophisticated as Dworkin, still believe not only in the rule of law but in a signicant distinction between law and politics. Dworkin, in particular, sharply distinguishes between principles and policies. Judges should look to principles, which are integral to the legal system, but judges should not consider policies, which Dworkin denes as external to the legal system. Policies, Dworkin explains, entail consideration of communal goals that are appropriate for legislative but not judicial consideration (1986, 22123, 24344). In this regard, then, Dworkin ts with other postrealist scholars: he carefully cabins policy concerns. Moreover, it is worth adding, even those academics who go beyond Dworkin and more thoroughly reject the internal view in their theoretical scholarship might occasionally (or more often) revert to a more traditional outlook in their teaching. Despite their scholarly views, in other words, these law professors often devote classroom time to teaching students how to parse cases as if at least the postrealist conception of the rule of law were true. Finally, to conclude this section, Roe v. Wade can provide a terse illustration of the contrast between the external and internal views of Supreme
10. For examples of legal scholars who do not follow a traditional or postrealist approach to the rule of law, see Balkin 1992; Delgado and Stefancic 1992; Mootz 1988. The burgeoning amount of interdisciplinary legal scholarship that has emerged over the last twenty-ve years attests to the number of law professors who at least partly reject the internal view of adjudication (Feldman forthcoming A).
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Court decision making. From the external perspective, the Roe Court held that the Constitution protected a right to choose whether or not to have an abortion because, quite simply, a majority of politically (or socially) liberal justices outvoted their conservative colleagues. Meanwhile, from the internal perspective, understood in its most traditional or Langdellian manifestation, the Roe Court decided according to the rule of law.11 The majority discovered a right to choose by carefully reading and analyzing the key precedent of Griswold v. Connecticut, its progeny, and the constitutional text of the Fourteenth Amendment (Griswold v. Connecticut 1965; Eisenstadt v. Baird 1972). From the postrealist internal perspective, the precedents and constitutional text might (or might not) be deemed ambiguous. If ambiguous, then the Court would have justiably consulted policy considerations, such as the detrimental effects that antiabortion statutes imposed on women (Roe v. Wade 1973, 153).
II. AN INTERPRETIVE-STRUCTURAL THEORY OF SUPREME COURT DECISION MAKING Harmonizing the Internal and External Views
Segal and Spaeths depiction of the legal model suggests that judicial decision making, from the internal viewpoint, is practically mechanical. A judge methodically gleans legal rules from case precedents and then mechanically applies those rules to the facts of the instant case. Moreover, once that judge decides the case, then future courts can likewise methodically glean the meaning of the earlier decision and mechanically apply it. Judges, it is supposed, are closely constrained from within the adjudicative process itself so that they are methodically led to correct judicial outcomes (Segal and Spaeth 1993, 3253). This view of stare decisis is overly simplistic and misleading. Adjudication is, in part, a type of interpretation: Judges, including Supreme Court justices, interpret legal texts such as case precedents, statutes, and the Constitution (Feldman 1992, 70114). As with all interpretation, though, legal interpretation is not methodical. There is no mechanical process for determining the meaning of a text (Gadamer 1989, xxi, 295, 309; Dworkin 1983, 26465). Even so, texts are meaningful. We can and do reasonably discuss the meaning of a text, whether it is a case precedent, a constitutional provision such as the First Amendment, or something else. In a specic case or context, therefore, it is sensible to ask: What does this text mean?
11. The Court itself wrote: Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection (Roe v. Wade 1973, 116).
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Yet, from within the interpretive process, this question cannot have any clear and determinate resolution exactly because there is no method or mechanical process for arriving at the answer. Thus, if three students disagree about the meaning of the First Amendment in a specic case, they can deliberate about the best meaning, they can marshal evidence, and they can present arguments. Each student, in other words, can seek to persuade the others as to the strength of his or her respective view. They might or might not reach a consensus, but regardless, there still is no mechanical means for determining the best answer (Feldman 2000b, 5357). How is it possible that individuals can reasonably discuss the meaning of a text when there is no mechanical process for reaching a determinate resolution? Individuals are simultaneously empowered and constrained because they live and participate in communal or cultural traditions. These traditions inculcate the individuals with certain expectations, interests, and prejudices that orient them toward texts. That is, an individuals expectations, interests, and prejudices, derived from communal traditions, open her to the possibility of understanding the meaning of a text but, at the same time, limit the possibilities of understanding. Hans-Georg Gadamer uses the metaphor of the horizon to elucidate this phenomenon of simultaneous empowerment and constraint: We are able to see to the limits of our respective horizons, but no farther. While our interpretive perspective always is necessarily constrainedbecause we are situated within a horizon that has limitswe are able to understand the meaning of texts exactly because we can see anywhere within our horizon (Gadamer 1989, 28284, 302, 306).12 Hence, but for our being situated within communal traditions, but for our concomitant expectations, interests, and prejudices, we would be unable to understand textual meaning. Our expectations, interests, and prejudices constitute the initial directedness of our whole ability to experience [and] are biases of our openness to the world (Gadamer 1980, 133). Signicantly, though, communal traditions are contingent and changing, and thus so are our expectations, interests, and prejudices. In a sense, while we cannot see beyond our horizon, our horizon constantly edges along, gradually moving this way or that. For this reason, then, the meaning of a text is never nally settled or resolved, even for each individual. As our horizon shifts, a text can take on a new and previously unrecognized meaning. Therefore, we constantly understand texts, disagree about their meanings, and debate those meanings with others, even though there is no mechanical process that can pierce our situadednessour being and participating in communal
12. An alternative way to understand communal traditions is to imagine them as being analogous to ecological environments. The environment provides a background that is prerequisite to the existence of organic life but simultaneously limits the types or forms of organic life that can survive. For instance, in Yellowstone National Park, there are thermal hot springs that enable certain microbiological organisms to thrive yet render impossible the existence of other forms of life (within the hot springs) (Hunger 1998, 301).
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traditionsand thus no means to reveal some preexisting and determinate textual meaning. In short, there may not be any nal resolution, but the interpretive process makes sense, both literally and guratively (Gadamer 1989, 298, 3046; Feldman 1991, 68687). Putting all this in slightly different words, we are always situated within a particular context that enables yet limits our perceptions and interpretations (Fish 1980, 310; Minow and Spelman 1990). Textual meaning varies with context. Therefore, because contexts can change, there can be no such thing as a single interpretation of any text that is absolute and unchanging for all time (DAmato 1989, 252). Joel Weinsheimers felicitous phrasetruth keeps happeningis apropos (1985, 9). A text is meaningful, but there might be many meanings, many truths, because of the nature of the interpretive process. Different horizons or different contexts can generate and reveal different meanings. Yet, to reiterate the basic point, according to this description of the interpretive process, a text very well might have a best interpretation in a particular context, although no method can determinately identify that interpretation. In the hypothetical situation of the three students who disagree about the meaning of the First Amendment, they can reasonably discuss the meaning of the constitutional text because their overlapping interpretive horizons are constituted through shared traditions (including the interrelated traditions of legal education, legal practice, and judicial decision making). Those overlapping horizons and shared traditions imbue the students with a sufcient consensus about the appropriate methods (or know-how) for discussing constitutional meaning in a specic case. They might discuss Supreme Court precedents, the original intent of the framers, the structure of the Constitution as a whole, and so on. Yet because no method can determinately resolve an interpretive dispute, the students might continue to disagree indenitely, even if there is a best answer. With legal interpretation, as with other types of interpretation, there is a potentially neverending debate about the best reading of a text. Although many theorists who are concerned with legal hermeneutics or interpretation have emphasized the importance of context, a crucial component of context and hence interpretation is often overlooked. Namely, all interpreters are always situated within particular structural positions within society. All individuals occupy certain relatively embedded (though contingent) social roles that endure within complex social practices and institutions. Social roles, moreover, are dened in part by the relations between various institutional positions, by the organizational schemes of both particular institutions and society at large (Wartenberg 1990, 154, 157, 165; Giddens 1979, 1218; Coulson and Riddell 1970, 4445; Berger 1963, 86 98). For instance, an individual can occupy the role of teacher within the social institution of a high school. The position or role of teacher is dened partly by the relations (or interrelations) among principals, teachers, and
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studentsrelations of power where principals are in dominant and respon` -vis teachers who are in dominant and responsible posisible positions vis-a ` tions vis-a-vis students. Such structural relations of power, as the example of a teacher underscores, entail both enabling and constraining forces. That is, a teacher is enabled or empowered to take certain actions, such as grading student papers, but is simultaneously obligated to perform in certain ways, such as grading fairly and refraining from physically harming a student. To be sure, a teacher might fail to act in accordance with professional norms or duties, but such nonperformance does not alone change the norms.13 Signicantly, with regard to interpretation, each interpreter of a text ` -vis other occupies a certain role or roles within society in general and vis-a interpreters. In other words, the structural position (or positions) of the interpreter is part of the context of interpretation, and as with other aspects of context, structural position can both empower and constrain interpretation. The contributions of social structure to interpretation are complex, multiple, and variegated (depending on other aspects of context). If several interpreters deliberate about the meaning of a text, their respective structural positions ` -vis the other interpreters will likely inuence the direction of the diavis-a logue. For example, in the hypothetical situation of the three students disagreeing about the meaning of the First Amendment, the three interpreters the studentsshare the social role of student. They are likely, then, to be in positions of relatively equal power; none of them is likely to hold a position of domination over the others. But if the students come to me, as their professor, and ask for my opinion about the best interpretation of the First Amendment, then the situation changes dramatically. As a professor to the students, I hold ` -vis the students an institutional or structural position of empowerment vis-a (an empowerment that supposedly is justied because of training and expertise). My argument or statement regarding the best interpretation of the constitutional text is likely to carry extra force exactly because I am the professor. As the professor, I am in a role of both dominance and responsibility or duty.14 I can exercise power over the students, but I am also obligated by
13. The powers and responsibilities that are entailed by a structural position intertwine with cultural (interpretive) traditions. We might, for instance, consider the powers and responsibilities that are associated with the structural position of a judge. Those powers and responsibilities would be produced in part by the cultural traditions related to the practice of judging. Likewise, the cultural traditions associated with judging would be produced in part by the powers and responsibilities associated with that structural position. Zygmunt Bauman explains: structure is culture sedimented, the petrication of the cultural products of cultural activity. . . . Cultural activity never starts in any generation, in any particular place, from scratch. It always has to reckon with what has already been accomplished by previous generations (Bauman 1992, 210; Bourdieu 1990, 135). 14. The recognition that such societal factors might inuence communication is the crux of Ju rgen Habermass conception of the ideal speech situation. The ideal speech situation is a counterfactual intersubjective encounter puried of all domination and coercion so that any consensus arising from this situation identies truth and normative legitimacy (Habermas 1980, 206; Feldman forthcoming B).
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professional norms to instruct the students in an honest fashion (I should not, for instance, purposefully mislead the students because I think it might be funny). To another professor, who is my structural equal, my interpretation of the First Amendment might not be too persuasive (though it might be), but to the students, my interpretation is likely to seem persuasive. Persuasiveness here arises partly because of my structural role (and partly because of other interpretive factors) rather than because of the force of my argument in the abstract. In fact, to be precise, there is no argument in the abstract because any argument is always heard only in the context of structural positions. Of course, it is worth noting, one or more students still might disagree with me despite my structural position. A dominant social role does not guarantee that one will always persuade others in interpretive disputes, though one is likely to persuade and even more likely to dominate (regardless of persuasiveness). Hence, my argument is likely to persuade the students partly because of my social role and partly because of other interpretive factors, yet even a student who disagrees with my interpretation is likely to succumb to the power of my dominant position. That student knows, after all, that I will eventually determine his grade in my course. The student realizes that he will be more likely to receive a high grade by interpreting the Constitution as I recommend, rather than as he sees t. Thus, the student might very well remain unpersuaded but nonetheless write the answer that I want to see on the nal examination. In this situation, the structural relation between me and the student inuences but does not determine the outcome of the interpretive dialogue, but that same structural relation does determine who will evaluate exams and assign grades (I will). What does this have to do with adjudication? Everything! In the course of adjudication, judges, including Supreme Court justices, interpret legal texts, such as the First Amendment and other constitutional provisions. Like other interpreters, judges (and justices) are simultaneously empowered and constrained by their participation in cultural traditions, especially those of the legal community. Those traditions imbue judges with the appropriate expectations, interests, and prejudiceswith their interpretive know-how of the law. For example, in a constitutional case, they know how to refer to the intent of the framers; they know how to analyze the structure of the Constitution as a whole; and they know how to account for the institutional parts of the constitutional government (Bobbitt 1991, 1222; 1982). They also know how (or by what means) they should not decide a case. For instance, they should not decide by ipping a coin. They should not decide by explicitly analogizing to the mystery novel they read last weekend. They should not decide by favoring a party who offers to pay them a kickback. To be clear, though, interpretive traditions cannot be reduced to a few simple dos and donts. Traditions, including those of the legal community, are far more complex and amorphous than these given examples might suggest. Traditions inculcate judges with the conceptual equipment, with the awareness, both
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conscious and tacit, that is needed for understanding, for communication (Cushman 1994, 257). Signicantly, judges are like other interpreters in another way: they occupy certain structural roles, notably in the context of American society. Specically, judges hold positions within governmental institutions (courts) that establish their dominance and their responsibilities or duties relative to many other individuals. U.S. Supreme Court justices, in particular, hold ` -vis most other members of society, positions of extraordinary power vis-a including even other judges, for legal interpretation and judicial decision making (Collier 1991, 23233; Fiss 1982, 756). Furthermore, of note, a person usually can inhabit the structural role of judge only if he or she has absorbed the interpretive know-how of the law. The judge must have been imbued with the traditions of the legal communityinculcated with the appropriate expectations, interests, and prejudices for judgingthough such traditions, it should be added, are always subject to contest and change, however deeply entrenched they might already have become. In the end, it is precisely the combination of the interpretive process with the structural empowerment of the Supreme Court justices that lends Supreme Court decision making its unique qualities. As a general matter, an interpretive dispute about the meaning of a text cannot be nally resolved or settled through any mechanical process. The same is true with any interpretive dispute about a legal text, including the Constitution. When an interpretive dispute about a legal text is litigated, however, the respective court is structurally empowered as an institution in a position of dominance and ` -vis the litigants as well as most other members of society. responsibility vis-a Moreover, at the eminent level of the Supreme Court, this empowerment is magnied. Thus, many citizens, lawyers, and other judges are likely to nd the Supreme Courts interpretations of legal texts such as the Constitution to be persuasive partly because of the Courts structural role and partly because of other interpretive factors. But, and here is a key point, even those individuals who do not nd the Courts interpretation to be persuasive must nonetheless accept that interpretation as nally resolving the adjudicative dispute between the parties. Because of the institutional structure of adjudication in the United States, there is a mechanical process for determining the outcome, even though there is still no mechanical process for resolving any interpretive disagreements. Adjudication, then, is somewhat unusual. While many interpretive disagreements occur in social settings where there is no institutional method for settling the controversyand hence, in theory, the dispute can continue indenitelyadjudication encompasses a method for ending the dispute between the litigants. When the justices of the Supreme Court vote, when a majority emerges, and when the Court issues its decision and opinion, the adjudicative dispute is over. To be sure, the litigants can continue to disagree with each other about the best interpretation of the legal text, and one or both
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of them can disagree with the Courts interpretation, but regardless, the litigants (and the respective lower court judges) must accept the Courts decision and act accordingly, or risk suffering severe sanctions. Of course, if a losing litigant has access to sufcient resources, then she can seek to overcome the Courts resolution in some other manner, such as attempting to convince members of Congress to initiate the process for a constitutional amendment.15 Indeed, members of Congress, other politicians, and other citizens must accept the Courts resolution of the adjudicative dispute to a degree, but they nonetheless can and often do resist the implications of the decision through a variety of formal and informal techniques (often far short of a constitutional amendment) (Becker 1969; Devins 1992, 1065). The efforts of Southern school boards to thwart the racial desegration required under Brown v. Board of Educationfor instance, by closing all the schools in a district or by terrorizing black schoolchildren who attempted to attend a previously all-white schoolis perhaps the most well known but certainly not the only example of disregard (or disdain) for the Courts interpretations of the Constitution and other legal texts (Brown v. Board of Education [Brown I] 1954; Brown v. Board of Education [Brown II] 1955; Romero and Romero 2003). Yet, despite such occasional resistance, the Courts pronouncement in any particular case ends the adjudication between those litigants, for all intents and purposes.16 The recent debate over the Second Amendment provides an illustration. For most of the nations history, the Second Amendment[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringedgenerated neither much litigation nor much academic interest. Over the last fteen years or so, however, academic interest has exploded, sparked partly by political debates over gun control. Books and symposia have collected essays written by historians and legal scholars about the meaning of the Second Amendment (Levinson 1989; Cornell 2000; Editors 2000). Does the Second Amendment create an individual right to own a gun for personal use? Does the Second Amendment create a collective right to possess guns within a government militia? Does the Second Amendment protect a right to possess guns only for the purpose of insurrection against a tyrannical government? The controversy
15. For example, after the Court decided Engel v. Vitale, a number of groups sought to overcome the decision with a constitutional amendment (Engel v. Vitale 1962; Feldman 1997, 234). 16. Of course, there may remain additional civil or criminal procedures to prolong the litigation. A losing litigant, for instance, can seek a rehearing. But at some point, the adjudication ends, based on the Courts determination. Moreover, while the Courts decision ends the adjudicative dispute, I do not mean to suggest that other members of society cannot continue to deliberate about the underlying constitutional values that were at stake in the litigation. Indeed, I have argued that the Court ought to be understood as engaged in an ongoing interpretive dialogue with the rest of society about constitutional values (Feldman 1993, 228788; Feldman 1992, 72231; Friedman 1993).
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is, of course, interpretive. What did the constitutional framers intend? Do the framers intentions matter today in understanding the Second Amendment? And ultimately, what does the constitutional text mean? These interpretive questions already have generated much interesting scholarship and diverse viewpoints and will, in all likelihood, continue to do so. Signicantly, while scholars, both legal and historical, can reasonably debate their various positions by marshaling evidence and constructing persuasive arguments, there is no mechanical process for denitively resolving the interpretive dispute. Thus, although there very well might be a best answer to the ultimate question regarding the meaning of the Second Amendment, scholars could debate the issue indenitely. Despite the recent outpouring of scholarly work, the Supreme Court has never squarely addressed this issue. If, however, the Court were to do so, the Court would then be thrust into the interpretive debate over the Second Amendment.17 And while there is no method for nally settling the interpretive disagreement, there is a mechanical process within the institutional structure of the national government for determinately resolving an adjudicative dispute in the Supreme Court. Eventually, the justices would vote, a majority would emerge, and a decision and opinion would be issued. The interpretive debate might continue among scholars, but the Courts decision would end the adjudication. The Court would have pronounced the law, period (subject, of course, signicantly, to future interpretation of the Courts decision). This interpretive-structural understanding of adjudication explains the relative effectiveness of both the internal and external approaches.18 The lack of a mechanical process for resolving interpretive disputes does not mean that anything goes in legal interpretation (Culler 1982, 110; Plasencia 1997, 247). An interpreter is not free to impose any or no meaning at all on a text, as if guided by no more than personal whims. To the contrary, interpretation of case precedents, constitutional provisions, or any other text always is constrained because of communal traditions and the concomitant expectations, interests, and prejudices. Thus, precisely because of the nature of the interpretive process, it is perfectly sensible to seek not only the meaning of a legal text but the best meaning of that text, even though there is no mechanical process for determining that best meaning.19
17. The Court has rarely even discussed the Second Amendment (Lewis v. United States 1980; United States v. Miller 1939; United States v. Cruikshank 1876). Some commentators read the Courts statements as suggesting that there is only a collective right to bear arms (Chemerinsky 1997, 383). 18. In a related vein, Tamanaha argues that behaviorist and interpretive approaches to law should be joined, while Gillman describes an interpretive-empiricism (Tamanaha 1997, 90; Gillman 2001, 493). 19. As Brian Leiter develops his concept of a naturalized jurisprudence, he writes: Contrary to some realists skepticism about predicting what judges will do, it appears that lawyers frequently are able to predict what courts will do: how else would they stay in business, after all? (1997, 312). Dworkin argues that judges are obliged to adjudicate according to a principle of integrity, making the law the best it can be (1986, 199225).
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Moreover, in any particular interpretive dispute or case, many lawyers and judges, including Supreme Court justices, will agree about the best answer again because of the nature of interpretation. Lawyers and judges will be likely to interpret a series of cases or other legal texts in a relatively consistent manner because they have overlapping interpretive horizonsthey participate in the same or overlapping legal communities and therefore share traditions, expectations, interests, and prejudices. Furthermore, it is worth noting that for judges, in particular, the professional norms or duties of their structural (or institutional) position obligate them to refer to legal texts when resolving a dispute; thus, they are necessarily thrust into textual interpretation (or they risk violating their professional norms).20 Putting this in different words, the internal perspective of law works to some meaningful degree. One piece of evidence supporting the view that legal rules and stare decisis matter is the simple fact that the Supreme Court justices have, over the years, devoted considerable energy to the writing of judicial opinions (even if that energy sometimes belongs to the justices clerks rather than to the justices themselves). Why write judicial opinions if the legal rules are insignicant? Of course, there is a ready answer to this question. Justices might write opinions for public consumption. That is, the opinions help legitimate the Courts decisions before the public by suggesting that the Court decided in accordance with law, even if it is not true. Yet if the justices wrote opinions merely to disguise the true nature of their decisions, would they still discuss legal rules and case precedents when behind closed doors, hidden from public view? The justices, thus, demonstrate their genuine concern for doctrine not only by issuing opinions, but by frequently bargaining and negotiating among themselves over the specic contents of their majority opinions, as if the precise wording of paragraphs and even single sentences made a difference (Richards and Kritzer 2002, 307; Wahlbeck, Spriggs and Maltzman 1998). Moreover, further supporting the validity of the internal view, the justices post-oral argument conference notes suggest that they truly care about rules and precedents. To be sure, the justices conference notes are not verbatim transcripts of their discussions, yet these notes nonetheless provide insights into the concerns of the justices and the operation of the Court. On a consistent basis, the justices earnestly discuss among themselves case precedents and legal doctrines as if they mattered. For instance, in the conference for Engel v. Vitale, which held that the recitation of a supposedly nondenominational prayer in the public schools was unconstitutional, Justice Harlan suggested that he felt bound by precedent: I reverse reluctantly. It is inescapable to reverse in light of the direction the
20. Some empirical evidence suggests that traditional legal arguments have greater inuence on lower court judges than on Supreme Court justices (Brent 1999; Gillman 2001, 48182). Emerson H. Tiller and Frank B. Cross, however, emphasize that empirical evidence also supports the view that political ideology strongly inuences lower court decision making (Tiller and Cross 1999, 21718).
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cases have taken. If this were de novo, I would say that it was no violation [of the establishment clause] (Dickson 2001, 424; Engel v. Vitale 1962). Either the justices are great liars or they sincerely believe that the precedents and rules are important.21 The effectiveness of the internal view, however, does not render the external view invalid. In fact, the external view is also effective, and again, chiey because of the nature of the interpretive process. Politics always is part of the adjudicative process because legal interpretation is never mechanical. When the Supreme Court decides a case involving, for example, an interpretive disagreement regarding freedom of speech, the justices must interpret the First Amendment and relevant case precedents.22 As with other interpreters, the justices expectations, interests, and prejudices will shape their interpretive views. One forceful aspect of those expectations, interests, and prejudices is political ideology, such as conservatism or liberalism. Thus, the political preferences of the justices come into play as part of the interpretive process itself. The Courts post-oral argument conference discussions again lend supportthis time, though, to recognizing the inuence of the justices political orientations. While the justices earnest conference discussions of specic cases demonstrate their genuine concern for following precedent, the justices incessant arguments and disagreements about the correct understanding of those same cases also underscore the unmechanical and political quality of interpretation.23 In a candid moment at one conference, Rehnquist acknowledged a basic problem with stare decisis: All of our cases are really only holdings on particular facts (Dickson 2001, 417). Moreover, the justices notes suggest that there are innumerable instances during conferences where the justices express little more than their votesI afrm or I reverse largely unsupported (at least at this stage of the process) by elaborate legal reasoning or justication (Dickson 2001, 411, 413).24 A former clerk to
21. For another example, see the notes on the Conference discussions in Mueller v. Allen (1983) (Dickson 2001, 41517). Some recent empirical political science research also supports the conclusion that legal doctrine matters in adjudication, even at the Supreme Court level. For a summary of this research, see (Gillamn 2001, 48596). Even Segal and Spaeth acknowledge that the justices sometimes truly seem bound by precedent, as demonstrated by those instances when a justice dissented in an initial case only to change his or her vote in the cases progeny supposedly because of the force of the precedent (from the initial case) (Spaeth and Segal 1999, 57). 22. The relevancy of specic case precedents is, of course, a matter of interpretation. 23. For instance, during the conference for Committee for Public Education and Religious Liberty v. Nyquist (1973), Justices Stewart and Marshall had the following exchange: Stewart: Our decisions in Allen and Everson point the other way. Marshall: Everson is wrong. (Dickson 2001, 414; Committee for Public Education and Religious Liberty v. Nyquist 1973). 24. In a similar vein, the justices often say no more than I agree with _____ [ll in the name of a justice]. For instance, in the notes from one Conference, White says, I agree with the Chief Justice, and Marshall says, I agree with Bill Brennan (Dickson 2001, 823).
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Justice Brennan laments that [c]onferences are as short as possible, consisting mainly of terse declamations by each Justice explaining his or her vote, with little or no actual debate or discussion (Kramer 2004; Posner, R. 2004, 35). Occasionally, a justice more openly reveals his or her personal (political) view, such as in Bowers v. Hardwick, which involved the constitutionality of homosexual conduct, when Chief Justice Burger declared, Our society has values that should be protected (Dickson 2001, 822; Bowers v. Hardwick 1986). Plus, quite often, the justices expressly discuss policy. For instance, in Lynch v. Donnelly, which upheld the public display of a creche, Justice Blackmun said that public support leads me to afrm (Dickson 2001, 399; Lynch v. Donnelly 1984). Some justices occasionally go to greater lengths, as did Justice Brennan in a case involving public aid to private religious schools: That children are forced to ee from the hell of urban schools is a tragedy. These children are the victims of the darkest side of our culture, and my sympathies go out to them. My sympathies also go out to those children who, in being left behind, face the daily horrors of urban public schools. We have been toldand I think it beyond challenge that if all of the money involved in this case were redistributed to public schools, there would remain an abundance of children in those public schools who would still need assistance. If we were to balance the equities, I think that the scale would tip towards those children who have not been so fortunate as to escape the public schools. Surely theirs is the more hostile environment, theirs the more impoverished education. (Dickson 2001, 422; Aguilar v. Felton 1985) In sum, both the internal and external views of Supreme Court decision making are effective to considerable degrees. How can that be? Because, and this is the crux of the matter, interpretive judgments are likely to coincide with political ideologies.25 Signicantly, such correspondence between interpretive views and political preferences in particular cases would diminish the cognitive dissonance of those justices who continue to believe like a lawyer in a post-realist conception of stare decisis and the rule of law (Smith, S. 1999, 1041).26 They can, in a sense, sincerely tell themselves that they fulll their institutional duty or obligation to follow the rule of law, even as they simultaneously follow their political preferences. This would hold true even for those justices (if there are any) who still believe in a traditional (Langdellian) conception of stare decisis and the rule of law, and thus would
25. In addition, the justices structural position within American society will contribute to their interpretive outlooks. That is, their position of power is likely to constitute an aspect of their respective horizons. In a related vein, Gillman argues that a judges institutional position can inuence her worldview (1999, 86). 26. When an individual acts contrary to his or her beliefs or feelings, then he or she experiences cognitive dissonance. As a general matter, people seek to diminish or avoid cognitive dissonance (Saks and Krupat 1988, 22735; Sears 1988, 17685).
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not openly admit that their political inclinations ever matter at all. These traditionalists would sincerely believe they were following the rule of law even as they followed their political preferences. The crucial point here, though, is that these justices (whether post-realist or traditionalist) are not being disingenuous. Their best interpretive judgments do correspond with their political preferences exactly because their politics constitute a substantial portion of their interpretive horizons. For this reason, the justices most often can follow the rule of law, as they interpret it, without political compunctionagain, because their interpretive judgments correspond with their political preferences.27
The Possibility of Conict

Of course, while individual justices are likely to rest self-assuredly with the seemingly serendipitous correspondence between their own interpretive and political judgments, the various justices will nonetheless disagree with each other. The justices often disagree because they interpret legal texts from distinctive (albeit overlapping) interpretive horizons, which include their varied political preferences. Putting this in different words, the unmechanical and political quality of legal interpretation generates the many opposed majority and dissenting Supreme Court opinions of justices who cannot agree on the best interpretation of a legal text. Equally important, perhaps, while each individual justice most often nds that his or her own interpretive and political judgments correspond, a conict between a justices best interpretive judgment and that same
27. It might be worth comparing Dworkins interpretive approach with my interpretivestructural theory. On the one hand, I agree with much of Dworkins theory. Most obviously, I agree that law and judicial decision making are interpretive (Dworkin 1986, 4586). Moreover, I agree that, from within an interpretivist viewpoint, we can talk about right and wrong (or the best interpretation) even though there is no mechanical means for determining right and wrong. Finally, I agree that insofar as judges rely on their interpretation of principles, they decide in accordance with their political convictions (Dworkin 1985, 23). On the other hand, I disagree with Dworkins attempt to distinguish principles from policies so sharply that we can, in his view, exclude policies from judicial decision making (Dworkin 1986, 22024; 1977, 22). To be sure, one might reasonably argue that, because of institutional concerns, judges should not explicitly rely on policy considerations as might a legislator. Yet, a thoroughgoing interpretivist approach should acknowledge that policy considerations might nonetheless tacitly inuence a judges interpretive judgments because policy preferences partly constitute the judges interpretive horizon. In other words, a theorist, such as Dworkin, might be able to distinguish policies from principles, as an analytical matter, but a justices interpretive horizon is constituted by a variety of factors or inputs, which do not rst pass through an analytical lter. Hence, it is more fruitful to discuss how politics, including both policies and principles, inuences judicial decision making. In practice, perhaps only a Herculean judge could fully disentangle his or her policy preferences from his or her principles or moral values. For another criticism of Dworkins distinction between principles and policies, see R. Posner 1990, 22.
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justices political preference is possible in any particular case. A conict between interpretive and political judgments can arise because, while politics is always part of interpretation, politics is never all of interpretation. Political preferences, in other words, constitute an aspect of a justices interpretive horizon, but politics does not completely control or determine the interpretive horizon. Thus, while unlikely, it is possible for interpretive judgments to differ from political preferences. The possibility of conict between interpretive and political judgments raises an interesting question. What viewpoint, the external or the internal that of political science or that of lawis likely to explain or predict better the outcome in such cases? And the answer is: neither. The structural component of Supreme Court decision making becomes paramount in deciphering these possible cases of conict between interpretive and political views. Recall that the interpretation of legal texts can never be brought through a mechanical or methodical process to an unequivocal and denitive resolution, but that nonetheless adjudication (especially at the Supreme Court level) is resolved through just such a mechanical process. Signicantly, then, the justices structural empowerment within the institutional mechanism of the federal judiciary allows them to vote either their political preferences (regardless of their sincere interpretive views) or their best interpretive judgments (regardless of their political preferences). The justices, for instance, might sincerely believe that, in a particular case, the best interpretation of the First Amendment and relevant cases would lead to the protection of an individual right to free speech, but because of their political inclinations, they might vote insincerely to deny the right. To be sure, in such a situation, one might criticize the justices for not fullling their professional duty to follow the rule of law. Yet the professional duties or obligations associated with a structural position in society are themselves always in need of interpretation. Thus, a Supreme Court justice might justify a vote in such a case, favoring politics over interpretive judgment, by maintaining that his or her structural position demands the pursuit of justice, including political justice, rather than a servile adherence to the rule of law. Regardless of professional duties, in a case of conict where the justices favor political over interpretive judgment, the external (political science) view would be more effective than the internal (legal) viewthat is, the external view would be more likely to correspond with the case outcome. Bush v. Gore, which resolved the 2000 presidential election, is a stark recent example of the justices power to vote their political preferences within the adjudicative process. The Florida Supreme Court had ordered manual recounts of the votes cast for president in several different counties. The U.S. Supreme Court reversed with a ve-to-four decision and ordered the termination of the recounts. A politically conservative block of justices constituted the Court majority, while the liberals and moderates were in the
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minority. The key part of the Courts majority opinion held that the State of Florida had violated equal protection because different counties and different recount teams had used divergent standards to determine voter intent, which state law established as the criterion for determining votes (Bush v. Gore 2000, 53031). This equal protection reasoning was not only strikingly novel but also disregarded that the recounts were needed to correct for substantial discrepancies in the original counting of votesdiscrepancies that arose because of the diverse and unequally effective procedures used in different counties. For instance, some counties used punch-card ballots while other counties used more modern optical-scan systems, even though punch cards produced a far higher percentage of nonvotes (ballots that did not register votes in the machines).28 Thus, if the manual recount procedure violated equal protection, as the Court reasoned, then the best interpretation of the equal protection clause would appear to suggest that the original vote counting was similarly unconstitutional (Bush v. Gore 2000, 541, Stevens, J., dissenting). Consequently, even those constitutional scholars who maintain that stare decisis and traditional legal reasoning closely control Supreme Court decision making found Bush v. Gore to be problematicthat is, the justices seemed to follow their politics (Sunstein 2001, 759). Yet in other cases where the justices best interpretive judgments have conicted with their political preferences, the justices have not always followed their politics, even though they did so in Bush v. Gore. In such cases of conict, the justices are structurally empowered to decide, as they are in all cases, regardless of their interpretive or political judgments. Thus, the justices can follow their interpretive judgments just as easily as they can follow their political preferences. If, indeed, a majority of justices follow their best interpretive judgments, then the internal (legal) view would be more effective than the external (political science) viewthat is, the internal view would be more likely to correspond with the case outcome. The joint opinion in Planned Parenthood v. Casey, authored by Justices OConnor, Kennedy, and Souter, provides an illustration. Casey reexamined the politically controversial abortion issue: Does the Constitution protect a womans interest in choosing whether or not to have an abortion? Roe v. Wade, of course, had held in 1973 that the constitutional right of privacy encompasses this interest. Under Roe, therefore, states could not prohibit abortions until viability or the last trimester of a pregnancy (Roe v. Wade 1973). A signicant portion of the Casey joint opinion focused on the doc28. The percentage of nonvotes in this election in counties using a punch-card system was 3.92%; in contrast, the rate of error under the more modern optical-scan systems was only 1.43%, explained Justice Stevens. Put in other terms, for every 10,000 votes cast, punch-card systems result in 250 more nonvotes than optical-scan systems. A total of 3,718,305 votes were cast under punch-card systems, and 2,353,811 votes were cast under optical-scan systems (Bush v. Gore 2000, 541 n.4, dissenting).
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trine of stare decisis and whether the Court should overrule Roe (Planned Parenthood v. Casey 1992, 85469). The justices repeatedly suggested that they were professionally compelled to follow the rule of law from Roe despite intense political pressure to overrule it and despite their personal and political preferences. Within the bounds of normal stare decisis analysis, the joint opinion explained, the stronger argument is for afrming Roes central holding, with whatever degree of personal reluctance any of us may have, not for overruling it (Planned Parenthood v. Casey 1992, 861, 86869). That said, potential cases of conict (between interpretive and political judgments) present severe empirical problems. In most such cases, to determine empirically whether justices favored their interpretive or political judgments would seem to be problematic, if not impossible. Indeed, unless a justice openly admits that her interpretive and political judgments diverged in a particular case, just the mere identication of cases of conict remains conjectural (and, of course, a justices open admission of conict might be disingenuous). Even in Bush v. Gore and Casey, my conclusionsthat the justices confronted conictsare based on my interpretations of the precedents and relevant legal doctrines (supported by similar interpretations by others). I do not, in other words, have direct access to the inner thoughts of the justices. I might reason, for example, that in Bush v. Gore, Justice Scalias interpretive and political judgments diverged, but he is unlikely to admit as much. In Casey, meanwhile, one can reasonably argue that the precedent (largely from Roe) and the politics of a majority of justices actually corresponded. To make this argument, begin by positing that the political spectrum is more nuanced than sugggested by the standard liberal-versusconservative dichotomy. In particular, conservatives can be fruitfully divided between archconservatives, like Scalia and Thomas, who combine economic and social conservatism, and country-club Republicans, who are economically conservative but are indifferent to or moderately liberal on many social issues (Tushnet 1999, 148; Graber 2002b, 325). Current and former justices such as OConnor, Kennedy, Blackmun, and Powell t into this latter category. Evidence suggests, for example, that Blackmuns and Powells views on gender-related issues were inuenced by the professional-class opinions of their daughters. As such, the Casey result, upholding Roe, was perhaps more predictable from a political standpoint than many observers had initially realized, as the country-club Republicans were likely to side with the more liberal justices rather than with the archconservatives on the abortion issue (Tushnet 1999, 149; Spaeth and Segal 1999, 15). Even further, whether a justice self-consciously (or phenomenologically) confronts conict in a particular case would also be problematic, likely depending in part on that justices denition of professional duty. How important is it, to that justice, to feel that she is following the rule of law? How important is it, to that justice, to see that her political ideology is
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implemented? Most justices (as well as other judges) probably have a somewhat amorphous sense of duty to follow the rule of law and to pursue justice, where justice might entail varying degrees of overt political consideration. If true, the more that a justices sense of justice encompasses the pursuit of political objectives, the less likely it is that the justice would experience any conict between interpretive and political judgments. Thus, if a justice fully dened professional duty as the following of political preferences, then she would be unlikely to experience any conict (because the justice would shape her interpretive judgment to t her political preference). Yet, most justices probably interpret their professional norms to include a distinction between following the law and following their politics. Assuming that such empirical and phenomenological problems could be overcome so that cases of conict could at least be identied, there nonetheless appears to be no single or strong reason to suspect that either interpretive or political judgments are likely to predominate in such cases. To the contrary, arguments point in both directions simultaneously, toward favoring both political and interpretive judgments. On the one hand, some justices who recognize and accept the uidity and indeniteness of the interpretive process might purposefully decide to favor their political preferences in cases of conict. These justices might reason that if they cannot mechanically or unequivocally discover the right or best legal answer, then they might as well vote their politics (Feldman 2000c, 70811). On the other hand, one might expect a justice to follow interpretive judgments over political preferences because doing so would be more consistent with generally accepted notions of professional duty and thus be both more admirable within the legal community and less likely to generate cognitive dissonance for the justice herself. Of course, some justices might lean toward following their political preferences if they could do so without penalty (in terms, for instance, of personal and professional criticism). Indeed, a justice might be more apt to admit openly to a conict if the justice had decided to follow her interpretive judgment as a matter of professional duty, rather than following her political preferences. After all, following her professional duty, by following the rule of law, would likely garner praise exactly because such action would be more in accordance with accepted judicial norms (which is merely another way of saying, more in accordance with professional duty). If the justice had instead decided to follow her political preferences, then she would be less likely to acknowledge her action openly because it would be less consistent with accepted judicial norms and therefore less acceptable among lawyers and judges (and the public generally). In such cases, the justice could readily mask her political motivations either by writing an opinion that duplicitously invoked the rule of lawthink of the equal protection rationale in Bush v. Goreor by merely signing onto another justices opinion, thus personally avoiding the
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need to articulate a legal rationale for the decision. To be sure, in some cases, public sentiment and the desires of powerful societal actors might so strongly favor a justices politically preferred conclusion that few observers would care whether the justice articulated persuasive or reasonable legal justications for the decision. As a general matter, though, the justices could not routinely follow their political desires without some semblance of legal justication because, in doing so, they would risk damaging their professional reputations and undermining the Courts institutional power and legitimacy. In the end, I cannot condently conclude that in cases of conict (if they can be identied), the justices are more likely to follow either their best interpretive judgments or their political preferences. Of course, with any individual justice, one might over time form a belief about whether he or she favors one over the other, but generalizing beyond such justice-specic beliefs is unlikely to be fruitful. Indeed, even with an individual justice, whether he or she would consider interpretive judgment or political ideology more important is likely to be case sensitive. That is, in one case, the justice might follow her interpretive judgment, while in another case, that same justice might follow her politics.29 Whether interpretation or politics wins the day might often depend on the salience of the particular political issue and the degree of public scrutiny of the case. For instance, in a case such as Casey, with extensive media coverage and public scrutiny, a justice might feel compelled to favor interpretive judgment (and professional duty) because an overtly political decision would generate too much negative publicity and thus undermine the Courts institutional power and legitimacy. The joint opinion explicitly discussed this concern: [W]hatever the premises of opposition [to a landmark decision like Roe v. Wade] may be, only the most convincing justication under accepted standards of precedent could sufce to demonstrate that a later decision overruling the rst was anything but a surrender to political pressure, and an unjustied repudiation of the principle on which the Court staked its authority in the rst instance. So to overrule under re in the absence of the most compelling reason to reexamine a watershed decision would subvert the Courts legitimacy beyond any serious question. (Planned Parenthood v. Casey 1992, 867) Most important, regardless of the uncertainties that might arise in potential cases of conictwhen the justices best interpretive judgments do not coincide with their political preferencesone must remember that such
29. In a study of the United States Courts of Appeals, David E. Klein concludes that judges are concerned not only with their political aims but also view legal soundness as a goal (Klein 2002, 141).
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cases will rarely arise. In the vast majority of cases, the nature of the interpretive process engenders correspondence between interpretive and political judgments. As a general matter, then, justices do not need to choose between their interpretive judgments and their political preferences. There is no choice because there is no conict.
Further Implications of the Interpretive-Structural Theory

This section illuminates the interpretive-structural theory of Supreme Court decision making by tracing some its implications. In particular, the following questions are addressed. First, to what degree can the Supreme Court be legitimately criticized? Second, how does the interpretive-structural theory relate to the doctrine of stare decisis? Third, in the end, does the internal or external perspective better predict the outcomes of Supreme Court decisions? Criticizing the Court Whether in the typical case where interpretive and political judgments coincide or in the rare case of conict, the conjunction of the lack of a method for settling interpretive disputes together with the existence of a distinct mechanical process for resolving adjudications insulates the Supreme Court justices from ever being proven wrong, by either others or themselves. While we can disagree with the justices over their interpretation of case precedents and constitutional provisions, and in doing so, we can offer persuasive arguments, we nonetheless cannot draw upon any mechanical process to demonstrate that the justices were wrongbecause there is no such process. To be sure, the justices use an institutionalized mechanical process, majority voting, to resolve adjudicative disputes, but they, like everybody else, do not mechanically interpret legal texts. Obviously, too, the Courts critics cannot appropriate the justices adjudicative process of majority voting to condemn the Court methodically or demonstrably because, quite simply, the critics are not structurally empowered to do so. Only the appointed justices are structurally empowered to resolve adjudicative disputes as the Supreme Court. Therefore, while the justices are not protected from criticism, they are insulated from being proven categorically wrong. Moreover, this conjunctionthe lack of an interpretive method with the existence of an adjudicative methodfurther minimizes the justices cognitive dissonance by allowing them more readily to understand their interpretive views as conforming with their political preferences. The inherent indeniteness of the interpretive process, the lack of a determinative method, frees the justices from confronting unequivocal proof that they have themselves politicized adjudication (though, of course, because
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of the nature of legal interpretation, the justices cannot avoid politicizing adjudication).30 Stare Decisis The interpretive-structural theory explains how stare decisis works. Courts can interpret case precedents just as they can interpret any legal texts. Thus, lawyers and judges can reasonably debate what interpretation of a particular precedent constitutes its best reading. Yet, equally important, interpretive-structuralism also suggests why many lawyers, judges, and law professors might misunderstand the doctrine of stare decisis. They might mistake the rigid nality of adjudication, which is resolved through a mechanical process, for a rigid nality in legal interpretation, which cannot be similarly determined. Without doubt, legal interpretation, like all interpretation, is always constrained, though the constraints generated by our traditions and concomitant expectations, interests, and prejudices are uid and contingent. But while those interpretive constraints allow us to deliberate reasonably about the best reading of case precedents as well as other legal texts, they never produce a nal, determinate resolution to an interpretive problem. Thus, if a colleague and I disagree about the best interpretation of a series of First Amendment precedents, we can reasonably try to persuade each other. Our interpretations of the precedents are constrained: We are not free to declare that the meanings of the various cases correspond with our mere personal preferences for no reason other than that they are our personal preferencesat least, we cannot do so if we intend to make a reasonable argument that might persuade. Moreover, even if my colleague and I eventually agree on the meanings of the First Amendment precedents, our interpretive dispute never reaches an unequivocal and determinate resolution. But if my colleague and I were to end up making our arguments before the Supreme Court, then the situation changes. Regardless of the interpretive dispute at the heart of the case, regardless of the persuasiveness of our respective arguments, adjudication is partly a mechanical process that has a nal, determinate resolution. Most important, a variety of factors, including political ideologies, can shape that nal judicial resolution. Yet when the Court issues an opinion, the Court typically will invoke stare decisis, as if the case precedents mechanically determined the Courts conclusion. Regardless of the Courts issued opinion, though, the votes of
30. This recognition might help explain how, even after Bush v. Gore, Justice Thomas and Chief Justice Rehnquist were able to deny that partisan politics played any role in the Courts decision-making process (Balkin 2001, 1407 and n. 2). Also, the insulation of the justices from proof of the inherent politicization of adjudication might further add to their already entrenched structural power by bloating their prestige as well as their self-esteem.
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the justices rather than the interpretation of the precedents provided the nal mechanical determination to the adjudicative dispute. Many lawyers, judges, and law professors might misunderstand the operation of stare decisis because, believing the Courts opinions, they conate the process of interpretation with the process of adjudication. True, interpretation is part of adjudication, but the nal resolution of an adjudicative dispute is mechanical in a way that interpretation never can be. Predicting Supreme Court Decisions In the end, does the internal or external perspective better predict the outcomes of Supreme Court decisions? This, of course, is a potentially big question, so its parameters should be specied. So far, I have argued that both the internal and external views are effective or valid. This conclusion does not necessarily mean, however, that the two views are equally effective or valid, or, in other words, that they explain or predict Supreme Court decision making with identical rates of success. I also have argued that in the limited number of cases where justices experience a conict between their best interpretive judgments and their political preferences, neither the internal nor external view is likely to be consistently more effective. But what about in the more common situation where interpretive judgments and political preferences coincide; is either the internal or external perspective likely to be more effective? And the answer is: the external view, maybe (and I mean maybe). On the one hand, from the internal perspective, some cases are easier than others. That is, lawyers, judges, and law professors nd that they can more reliably predict the outcomes in some cases than in other cases.31 Most lawyers, for example, would agree that a will witnessed by one person is not likely to be judicially enforced, but the same lawyers would disagree wildly when trying to predict whether the Supreme Court would nd homosexual sodomy protected by the due process clause of the Fourteenth Amendment.32 This recognitionthat some cases are easier than othersdoes not mean, however, that easier cases are more mechanical than hard cases. All cases, whether they appear easy or hard, entail the nonmechanical (and therefore political) process of interpretation as well as the mechanical process of adjudication. In easier cases, though, the legal traditions shaping the interpretation of the particular rule or dispute are so well entrenched and widely accepted in the legal community that they go largely unquestioned and thus
31. One problem with Segal and Spaeths critique of the internal view is that, for the purposes of structuring their empirical study, they considered only Supreme Court cases that included dissents. By doing so, they immediately excluded from their study those unanimous decisions that would more likely be deemed as easy cases (Spaeth and Segal 1999, 57, 2325). 32. In Bowers v. Hardwick (1986), the Court rejected a substantive due process claim involving homosexual sodomy, but then, in Lawrence v. Texas (2003), the Court overruled Bowers and upheld a similar claim (Bowers v. Hardwick 1986; Lawrence v. Texas 2003).
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beget relatively consistent interpretive conclusions. Most lawyers, judges, and law professors will share the same expectations, interests, and prejudices about a will witnessed by only one person, while, needless to say, a similar consensus is unlikely to arise in any substantive due process case. Yet, because of the nonmechanical nature of legal interpretation, even the results in seemingly easy cases can be subject to dispute and criticism, as illustrated by the tax case of Gitlitz v. Commissioner of Internal Revenue, discussed earlier. The Gitlitz majority, it might be recalled, reasoned that policy concerns were irrelevant because the statutory language of the Tax Code was plain and clear (Gitlitz v. Commissioner of Internal Revenue 2001, 710). Although eight justices agreed with this result, one justice, Stephen G. Breyer, dissented. Reading the same statutory text, Breyer maintained that reasonable arguments could be made on both sides, so that the statute produced ambiguity, not certainty. Given such ambiguity, Breyer insisted that the Court should seek to fulll the legitimate policy concern of closing tax loopholes (Gitlitz v. Commissioner of Internal Revenue 2001, 711, dissenting). Even so-called easy cases, it seems, require nonmechanical legal interpretation, which is never apolitical. Besides, a disproportionate percentage of the cases decided by the Supreme Court are hard rather than easy. In hard cases, such as those involving a substantive due process claim, the background legal traditions tend to be controversial and subject to sharp debate. Indeed, the justices have expressly disagreed about the nature of tradition itself in the context of substantive due process. Chief Justice Rehnquist depicts tradition as static and objective, as a signicant constraint on judicial decision making (Washington v. Glucksberg 1997, 2268). Justice Souter, criticizing Rehnquists conception of tradition as likely to produce legal petrication, maintains that tradition is constantly shifting, like a living thing (2284, concurring). Given such overt disagreements about the nature and content of tradition, the justices interpretations of the relevant legal texts, including case precedents and constitutional provisions, are unlikely to be relatively consistent but, to the contrary, are likely to diverge extensively. In such cases, then, where the legal rules and principles are effectively ambiguous or debatable, one might get a better purchase upon Supreme Court decision making by attending to the justices political preferences. The best interpretation of the due process clause might be unclear, but one knows that in a substantive due process case, the liberal justices will probably be receptive to the judicial recognition of a protected individual right while the conservative justices will probably be hostile. For this reason, then, the external view might, overall, be more effective than the internal view in predicting Supreme Court outcomes.33
33. In a prospective study of the Supreme Courts 2002 term, legal experts correctly predicted the outcome in 59.1 percent of the cases, while an external (political science) approach correctly predicted the result in 75 percent of the cases (Ruger et al. 2004, 115152).
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Yet, on the other hand, the external view also encounters problems of ambiguity. First, many cases might not present the justices with a salient political dilemma where conservatives stand clearly on one side and liberals stand clearly on the other. After all, if a probate case where only one person witnessed a will somehow reached the Supreme Court, which outcome would be conservative and which would be liberal? How would the external perspective help us predict the outcome of this case? Second, the political views of individual justices sometimes are indistinct, especially in the context of particular disputes. True, justices who are politically extreme either to the conservative or liberal sidejustices like Scalia and Thomas, or like Thurgood Marshall and William Brennantend to be more predictable. But many justices have more nebulous political stances, even though they might be readily characterized as generally leaning right or left. On the current Court, the country-club Republicans, OConnor and Kennedy, most clearly fall into this category. They both lean strongly right on economic issues, but on social issues, they often equivocate despite the urgings of the archconservatives, Scalia, Thomas, and Rehnquist (Tushnet 1999, 14849; Graber 2002b, 32526). The hazards of predicting Supreme Court outcomes given the ambiguities of the justices political views were never more evident than in the Courts controversial decisions from 2003: Grutter v. Bollinger, and Lawrence v. Texas. Grutter involved an equal protection challenge to the afrmative action admission program of the University of Michigan School of Law. Under that program, law-school applicants who belonged to underrepresented racial minorities, including African Americans and Native Americans, would receive a plusan unquestioned advantage in the admissions process, but one that always remained unspecied in quantity (Grutter v. Bollinger 2003, 2342). A majority of justices upheld this program, with OConnor providing a key fth vote and writing the Courts opinion.34 For many knowledgeable observers, the Grutter Courts decision was surprising, to say the least (Greenhouse 2003; Devins 2003, 34849). From this perspective, both the law and the politics seemed to point to the likely invalidation of the afrmative action program. That is, both the internal and external views would lead one to predict that the Court would have struck down the program as unconstitutional. With regard to the law, the Court had previously held that governmental afrmative action programs were subject to strict scrutiny: The governmental action must be necessary to achieve a compelling purpose
34. But in Gratz v. Bollinger, which involved an equal protection challenge to the University of Michigans undergraduate afrmative action program, OConnor switched her vote and thus doomed that program to being found unconstitutional. To OConnor, the key difference between the two afrmative action programs was that the undergraduate program, unlike the Law School program, awarded a precise quantity, twenty points, in a ranking system designed to evaluate applicants (Gratz v. Bollinger 2003, 2431, concurring).
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(Adarand Constructors 1995, 230; City of Richmond v. J .A. Croson Comp. 1989). Moreover, since 1944, the Court had not upheld a single governmental action subject to strict scrutiny under equal protection (Korematsu v. United States 1944). This judicial consistency had spawned the maxim that strict scrutiny was strict in theory, but fatal in fact (Gunther 1972, 8). While OConnor herself had recently denied the truth of this maxim (Adarand Constructors 1995, 237), the fact remained that the Court always reached the same result, invalidating governmental actions subject to strict scrutiny under equal protection. With regard to the politics, the conservative majority on the Court seemed poised to nail down a central plank in the conservative political platform: our supposedly color-blind Constitution guarantees equal opportunities for all, but nothing more. Given the law and the politics, the result in Grutter seemed foreordained. But OConnor refused to follow this script and instead fullled her warning that strict scrutiny was not strict in theory yet fatal in fact. Indeed, while her majority opinion used the language of strict scrutiny, her application of the standard was so diluted that it might be called strict scrutiny lite. The Court showed a strange degree of deference to the Law Schools judgment that student-body diversity was essential to its educational mission (Grutter v. Bollinger 2003, 2339). Furthermore, OConnor framed the strict scrutiny test so that it seemed to require the governmental action to be narrowly tailored rather than necessary to achieve the governments purpose (Grutter v. Bollinger 2003, 233738). In earlier strict scrutiny cases, narrow tailoring and necessity had been equivalent,35 but the narrowtailoring standard applied in Grutter was less rigorous than the normally fatal standard previously applied.36 Thus, OConnor easily deected Justice Thomass assertion that the Law School could have achieved student-body diversity through an alternative and race-neutral mechanism, such as reducing the admission criteria for all applicants (Grutter v. Bollinger 2003, 2350, Thomas, J., concurring and dissenting). OConnor wrote: Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative. Nor does it require a university to choose between maintaining a
35. In Adarand Constructors, Inc. v. Pena, for example, the Court wrote: When racebased action is necessary to further a compelling interest, such action is within constitutional constraints if it satises the narrow tailoring test this Court has set out in previous cases (Adarand Constructors 1995, 237). 36. The Court wrote: Petitioner and the United States argue that the Law Schools plan is not narrowly tailored because race-neutral means exist to obtain the educational benets of student body diversity that the Law School seeks. We disagree. Narrow tailoring does not require exhaustion of every conceivable race-neutral alternative (Grutter v. Bollinger 2003, 2344). In dissent, meanwhile, Rehnquist insisted that strict scrutiny mandates the most rigorous judicial review: Racial classications are simply too pernicious to permit any but the most exact connection between justication and classication (Grutter v. Bollinger 2003, 2366, dissenting). Not incidentally, Rehnquists majority opinion in Gratz used this same rigorous language (Gratz v. Bollinger 2003, 2427).
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reputation for excellence or fullling a commitment to provide educational opportunities to members of all racial groups (Grutter v. Bollinger 2003, 2344). To be clear, I am not criticizing the Courts decision or OConnors opinion. My point, rather, is that Grutter demonstrates how precarious it is to predict Supreme Court decisions in hard cases, even when one focuses on the politics of the justices. To be sure, those observers who had expected OConnor to vote with her conservative colleaguesRehnquist, Scalia, Thomas, and Kennedywere reasonable in their expectations, given OConnors voting history. Yet, if one attends to the distinction between archconservatives and country-club Republicans, then OConnors vote was perhaps not too surprising, as many country-clubbers do not vigorously oppose some moderate social programs, including weak (nonquota) forms of afrmative action. But before jumping to the opposite conclusionthat the country-club Republican position should have led us to predict the upholding of the Michigan Law School afrmative action programone should remember that the other country-clubber, Kennedy, voted with the archconservatives instead of joining OConnor. And to complicate matters even further, one might view politics from yet another vantage, distinguishing between popular public opinion and elite opinion (Devins 2003, 36366).37 Before Grutter, public opinion polls revealed widespread popular opposition, especially among non-Hispanic whites, to any form of afrmative action.38 Yet, elite opinion among both Republicans and Democrats seemed to support the importance of diversity and the continuation of some kind of afrmative action, as evidenced by the ling of eighty-three amicus briefs
37. Numerous scholars have argued that social and political inuences shape the Courts decisions (Tushnet 1999, 134; Dahl 1957; Devins 2003, 35062). Such an emphasis on social and political inuences, it is worth noting, moves us away from an attitudinal approach and toward either a majoritarian or institutional approach. Of course, the justices political preferences or ideologies, emphasized by the attitudinal approach, do not bubble up from within their pristine souls. Rather, the justices develop their political views within the context of widespread contemporary political trends. Francine Sanders Romero has differentiated three approaches to understanding judicial decision makinginstitutionalism, majoritarianism, and attitudinalismand explained how the approaches overlap to a degree. She then argued that in her particular study of racial discrimination cases, the attitudinal model best t the data (2000, 29297, 3078). 38. A Time/CNN Poll, conducted on January 1516, 2003, asked the following: Do you approve or disapprove of afrmative action admissions programs at colleges and law schools that give racial preferences to minority applicants? Fifty-four percent disapproved, while only 39 percent approved. An NBC News/ Wall Street Journal Poll, conducted on January 19 21, 2003, asked the following: As you may know, the U.S. Supreme Court will be deciding whether public universities can use race as one of the factors in admissions to increase diversity in the student body. Do you favor or oppose this practice? Sixty-ve percent opposed, while only 26 percent favored. A Gallup Poll, conducted in June 2003, showed sharp discrepancies among the responses of non-Hispanic whites, blacks, and Hispanics, in response to the question Do you generally favor or oppose afrmative action programs for racial minorities? (PollingReport.com accessed March 29, 2004).
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supporting the University of Michigan (while only nineteen amicus briefs favored the petitioners).39 Lawrence v. Texas only corroborated the difculty of predicting some Supreme Court decisions. In Lawrence, the Court reviewed the constitutionality, under substantive due process, of a law criminalizing homosexual sodomy. As with Grutter, many knowledgeable observers had reasoned that both the law and the politics pointed in one direction: toward the rejection of the constitutional claim (Greenhouse 2003; Lane 2003; Devins 2003, 348 49). The law was set forth in Bowers v. Hardwick, decided in 1986, in which the Court had already rejected a similar due process claim. The politics, for many, also seemed straightforward: if anything, the Court is politically more conservative today and more hostile to the recognition of new individual rights than it was in 1986 (Epstein, Knight, and Martin 2003, 79697; Graber 2002b, 323). Nevertheless, the Court surprised many by holding that the antisodomy law was unconstitutional (Lawrence v. Texas 2003, 247880).40 Once again, though, we can reasonably argue that the decision was expected if one abandons the standard conservative-liberal political dichotomy for a more nuanced view. In particular, one might maintain that the country-club Republicans, OConnor and Kennedy, predictably abandoned the archconservative block (Rehnquist, Scalia, and Thomas) to join their more liberal colleagues in adopting a moderate social position. Yet this attention to the subtle differences among conservatives still does not explain why Kennedy joined OConnor in Lawrence but not in Grutter. Moreover, if one examines social and political inuences on the Court, one nds a confusing snarl of public opinion. More than a month before the Court decided Lawrence, polls revealed that a slight majority of Americans found homosexuality to be morally wrong yet an acceptable alternative lifestyle. 41 Hence, like the internal view, the external view sometimes encounters problems of ambiguity that diminish its effectiveness in predicting Supreme Court outcomes.42 If, however, I must choose one perspective, either the
39. For examples of amicus briefs favoring afrmative action, see Brief of Amici Curiae John Conyers 2003; Brief of Amici Curiae Amherst College et al. 2003. For a discussion of the amicus briefs, see Devins 2003, 36669. 40. A survey of legal experts, administered before the Court decided Lawrence, revealed that at least some experts expected the Court to afrm the lower courts decision (the Court ultimately reversed) (Ruger, et al. 2004, 1208, Appendix C). 41. The Court issued the Lawrence decision on June 26, 2003. A Gallup Poll, conducted on May 57, 2003, asked the following: Regardless of whether or not you think it should be legal . . . . , please tell me whether you personally believe that in general it is morally acceptable or morally wrong to engage in homosexual behavior? Fifty-two percent found it morally wrong, while 44 percent found it morally acceptable (PollingReport.com accessed March 30, 2004). Meanwhile, a USA Today/CNN/Gallup Poll, again on May 57, 2003, asked the following question: Do you feel that homosexuality should be considered an acceptable alternative lifestyle or not? Forty-three percent found it unacceptable, while 54 percent found it acceptable (USA Today/CNN/Gallup Poll Results accessed March 30, 2004). 42. It is worth noting, moreover, that both Grutter and Lawrence further illustrate that even apparently easy casescases where the law seems relatively clearcan be unpredictable.
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external or internal, as being more effective, I would opt for the external.43 After all, the external view manifested in political scientists attitudinal model is precisely that, a modelone designed by political scientists oriented toward the empirical testing and accurate prediction of judicial decision making. The internal view is, in reality, not a model at all. Rather, it is a heuristic description of the practices of law and adjudication, as experienced by those who engage in those practices. As such, the internal view was not designed for empirical testing and is unlikely to be as empirically effective in predicting judicial outcomes as a device designed for that very purpose. To be sure, political scientists have attempted to create a legal model that corresponds with the internal view and that would, therefore, facilitate empirical testing, but these attempts have been heavily criticized (Gillman 2001, 484 85). Indeed, given the uidity and contingency of legal interpretation, the difculties in constructing a legal model that would accurately capture the complexities of the interpretive process might be insurmountable.44
III. CONCLUSION: THE INTERPRETIVE-STRUCTURAL THEORY AND THE NEW INSTITUTIONALISM

Many law professors have explained and analyzed Supreme Court decision making from an internal perspective: The justices, according to this view, decide cases based on the rule of law. Most political scientists, meanwhile, have studied Supreme Court adjudication from the external perspective of the attitudinal model: The justices, according to this view, decide cases based on their political ideologies rather than on legal rules and principles. Thus, academics in these two disciplines, law and political science, focus on the same social phenomenonSupreme Court decision makingbut they do so from radically different perspectives. Furthermore, law professors and political scientists rarely attempt to confront or engage with the methods and insights of the opposed discipline. One possible (though ultimately wrongheaded) response to this scholarly chasm is to claim that it exists for good reason: Law professors and
43. This conclusion might be consistent with the postrealist internal view. According to that view, judges follow the rule of law unless there is a gap in or doubtfulness about the law, at which point, policy considerations become appropriate. If, as is true in most cases, interpretive judgments coincide with political preferences, then both the internal and external views are likely to be effective. But when, in those same cases, there is a gap in the law or the law has run out, so to speak, then the postrealist internal view itself would seem to direct us toward the external view. That is, in those instances, the postrealist internal view recommends turning toward policy (or politics), and hence the external view would become more effective in predicting outcomes. 44. Signicantly, though, Herbert M. Kritzer and Mark J. Richards have recently tested a model of jurisprudential regimes that provides empirical support for the hypothesis that legal doctrine has inuenced Supreme Court decision making, at least in certain areas (Richards and Kritzer 2003; Richards and Kritzer 2002).
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political scientists have little or nothing worthwhile to say to each other. Proponents of the internal and external perspectives are, it might be argued, engaged in different projects. Law professors want to understand the practice of judicial decision making as judges experience itfrom a phenomenological vantage, one might saywhile political scientists are interested in the raw empirical data of adjudication: who won, who lost, and what are the societal results or effects of the decision. While this explanation of the scholarly chasm might help justify the two academic disciplines with their distinct methodological approaches, it obscures that the internal and external views of adjudication implicitly reect upon each other. As commonly articulated, the internal and external views do not merely represent complementary depictions of the same phenomenon, albeit from different and independent perspectives. Rather, the two views of adjudication are in tension. The internal view maintains that not only do legal rules matter, but that in a signicant number of cases, rules determine judicial outcomes, regardless of politics. The external view, however, maintains the opposite: that politics determines outcomes regardless of legal rules. The rules are, from this perspective, a window dressing or even a subterfuge (Hutcheson 1929, 286 87). Law and politics are two different realms, and we must choose to follow the one or the other. Yet, my argument has been that, when properly understood, these two views of adjudication can be mediated. Specically, an interpretive-structural theory of Supreme Court decision making accounts for the effectiveness of both the internal and external perspectives. When deciding cases, Supreme Court justices interpret case precedents and other legal texts. As with all interpretation, legal interpretation is simultaneously enabled and constrained by our participation in communal traditions, which inculcate us with expectations, interests, and prejudices. Thus, when we interpret a legal text, we can discuss and debate its meaning, but we can never determine the meaning through some mechanical or methodical process. At the same time, all interpreters occupy certain structural positions or roles within society that inuence the interpretive process, most obviously when multiple interpreters disagree and attempt to persuade each other that their respective interpretations are best. The interpreter who occupies a com` -vis the others is likely (yet not necessarily) to manding social position vis-a seem most persuasive. Supreme Court justices occupy dominant social positions in relation to most other individuals, including particularly litigants before the Court as well as other judges. As such, the interpretive pronouncements of the justices are likely to seem persuasive to many observers, though many politicians and other citizens often subsequently express their disagreement. But even if many disagree with the justices, the structural position of the Court and the entrenched institutional method for ending adjudication assures that a legal dispute will be mechanically resolved with nality. The interpretive disagreement might continue (and hence, for
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instance, politicians might attempt in any particular case to resist the implementation of the Courts decision), but adjudication encompasses a method, voting by the justices, that produces a determinate outcome. In fact, the structural position of the justices within the institution of the national government generally allows the justices to vote either their best interpretive judgments or their political preferences. This interpretive-structural theory of Supreme Court decision making accounts for the effectiveness of both the internal (legal) and external (political science) views of adjudication. While the justices structural position empowers them to vote either their interpretive or political judgments, the nature of the interpretive process assures that stark conicts between interpretive judgments and political preferences will rarely arise. Quite simply, political ideologies constitute a signicant part of the justices interpretive horizons so that political preferences and interpretive judgments will frequently correspond. In these typical situations, then, both the internal and external views of adjudication would be effective. That is, one could explain the Courts decision by focusing either on the rule of lawas the internal view doesor on the justices political ideologiesas the external view does. The effectiveness of the internal view, in particular, is grounded on the often overlapping interpretive horizons of many lawyers and judges, while the effectiveness of the external view is grounded on the inclusion of politics within interpretive horizons. What, then, is the relationship between the interpretive-structural theory of Supreme Court decision making and the emerging new institutionalism of political science? In general, new institutionalists seek to explain how Supreme Court justices are inuenced by both their political preferences and their institutional environments (Gillman 2001, 486). More specically, new institutionalism is often divided into two types: strategic or rational choice institutionalism and historical institutionalism. From my perspective, the rational choice institutionalists, like Lee Epstein and Jack Knight, provide an important corrective for the attitudinalists. Namely, rational choice institutionalists stress that the justices political choices in adjudication are oriented or shaped by the institutional structures of the judiciary; the justices, that is, act strategically because the institutional environment constrains their choices and their abilities to fulll their desires (Epstein and Knight 1999, 216). Nevertheless, my approach shares more in common with historical institutionalism, which seeks to place the justices choices in a rich social and cultural context without denying that the justices political orientations inuence their decisions. Historical institutionalists, according to the political scientist Keith Whittington, tend to be much more concerned with placing the judiciary and the law within a larger social and intellectual context that both shapes the course of law and helps dene legal meaning (2000, 613). This approach has generated enlightening histories of free speech, of
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citizenship, and of the Lochner era (Graber 1991; Smith, R. 1997; Gillman 1993). The interpretive-structural theory of Supreme Court decision making helps explain the perspicacity of historical institutionalism. Interpretivestructuralism elucidates how social, cultural, and political considerations are inherently part of the legal interpretive process and how institutional structures empower Supreme Court justices both to enforce their interpretive judgments and to pursue their political preferences. Moreover, the conception of interpretive horizons closely intertwines with the historical concerns of the new (historical) institutionalists. Historical institutionalism, writes Whittington, makes its most radical break from the other approaches by historicizing political actors. Individuals cannot be conceptualized as autonomous, free choosers who just happen to nd themselves in a particular institutional context. Institutions do not merely impose constraints on choices; they constitute preferences (2000, 615). Likewise, within the theory of interpretive-structuralism, interpreters are not free and unencumbered choosers who impose their wills on a text, nor are they subordinated to the text and expected to glean some supposedly objective textual meaning. To the contrary, the concept of interpretive horizons illuminates how communal traditions and the concomitant expectations, prejudices, and interests both enable and constrain legal interpretation. Put in different words, the legal interpreter acts within a historical context embodied by communal traditions and structural roles. Traditions (as well as structural roles), moreover, move historicallythey change over timeand hence, legal interpretation is never a static process, but rather is uid and contingent. Despite the contributions of the new institutionalists, they have failed in one signicant respect. Although they have self-consciously sought to combine the internal and external views, to bring law and politics together, they have not yet adequately explained how law and politics are conjoined. Howard Gillman writes: While these [new institutionalist] scholars found legal inuences, none of them would argue that knowledge of law alone is sufcient for understanding the nature of judicial decision making (since none view legal inuences as mechanical); in fact, virtually all of them would agree that in many circumstances judges set aside purely legal considerations to pursue other goals, and they would also agree that legal considerations are themselves a by-product of evolving political contexts and social forces. (2001, 492) This passage is important not only for its emphasis on a connection between law and politics but also for the questions that it implicitly raises and leaves unanswered. What does it mean to say that legal inuences are not mechanical? How is it possible for judges to set aside purely legal considerations to pursue other goals? Indeed, what are purely legal considerations? Does
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not this phrasepurely legal considerationssuggest that politics and law are distinct realms, even though politics might inuence law? The interpretive-structural theory of Supreme Court decision making responds to these and similar questions concerning the relationship between law and politics. Law and politics, when properly understood, are connected in a strong sense. Politics is integral to law because politics is always and already part of legal interpretation. Political preferences constitute a signicant part of the justices interpretive horizons so that politics is necessarily part of (but not the entirety of) legal interpretation. Even so, legal interpretation is never just politics by some other name. The politics of law is always distinctly shaped by legal institutions, including legal doctrine, so that legal politics is differentiated from other manifestations of politics, such as legislative politics. This strong connection between law and politics suggests that any scholarly analysis of Supreme Court legal developments that aims for thoroughness, especially from a historical perspective, would need to discuss law, politics, and their intertwinement. After all, if politics necessarily contributes to legal interpretation, yet the politics of law is always distinctively legal, then a study of legal developments that focuses either solely on legal doctrine, as if politics were irrelevant, or solely on politics, as if law were epiphenomenal, would necessarily be incomplete. This conclusion does not imply that scholarly studies from only one viewpoint, either the internal or the external, are worthless. To the contrary, such studies can generate valuable insights, so long as one recognizes the inherent limitations of these approaches. But if a scholar seeks even to pretend to rest the crown of completeness on a study, then neither law, politics, nor their interconnections can be ignored.45 Finally, I suspect that many political scientists and law professors who read this article will react as follows: Well, yes, but . . . Political scientists, for instance, might maintain that I have not refuted the empirical evidence demonstrating that the justices vote their political ideologies. From this perspective, judicial opinions and discussions of the rule of law are mere window dressing. At most, precedents and legal doctrines weakly constrain the justices as they pursue their politics. Political preferences, that is, are prior to the rule of law. Of course, law professors are likely to react differently. They are likely to insist that phenomenologically, from their own experiences as well as the recorded experiences of judges and lawyers, they know that the rule of law matters, in a strong sense. Politics might occasionally come into
45. Indeed, an exhaustive scholarly study of legal developments would need to go beyond law and politics to include analyses of cultural and social factors that might otherwise be outside the ambit of politics. Of course, political preferences do not bubble up from within or magically appear from nowhere. Rather, political preferences are themselves socially and culturally produced. In other words, the boundaries between politics, culture, and society are not impermeable. Thus, partly for this reason, many scholars have argued that the Supreme Court follows social and political inuences (Tushnet 1999, 134; Dahl 1957; Devin 2003, 35062).
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play, but the rule of law takes priority. Moreover, these law professors would be more than happy to cite recent empirical studies from political scientists that support this phenomenological vantage at least to a degree (Richards and Kritzer 2003; Richards and Kritzer 2002).46 But these readers, on both the political science and law sides, are missing the point. Their reactions reveal more about their disciplinary orientationstheir interpretive horizons, if you willthan about my arguments. My point has not been to refute either the internal or the external view, but rather to explain why both are valid and how they intertwine. To be sure, as I discussed, the external approach might be slightly more effective in predicting Supreme Court outcomes because, rst, it is designed specically for that purpose and, second, the Court decides a high percentage of hard cases. Yet, given the explanatory power of the interpretive-structural theory, no reason exists to insist on the systematic priority either of politics or of the rule of law, particularly to the exclusion of the other viewno reason, that is, except that we all have our interpretive horizons formed within our respective disciplines. Those interpretive horizons, it should be recognized, orient us toward favoring one or the other perspective, either the internal or the external. And in the end, that recognition is preeminent: our interpretive horizons both enable and constrain and therefore shape our outlooks toward disciplinary methods, toward legal interpretation, or toward any other interpretive practice, for that matter. In that way, then, law professors and political scientists ironically are no different from Supreme Court justices.
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The Rule of Law or the Rule of Politics?

LAW & SOCIAL INQUIRY

The Rule of Law or the Rule of Politics?

LAW & SOCIAL INQUIRY

The Rule of Law or the Rule of Politics?

LAW & SOCIAL INQUIRY

I. THE INTERNAL AND EXTERNAL VIEWS OF ADJUDICATION

The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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The Possibility of Conict

The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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Further Implications of the Interpretive-Structural Theory

The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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III. CONCLUSION: THE INTERPRETIVE-STRUCTURAL THEORY AND THE NEW INSTITUTIONALISM

The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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The Rule of Law or the Rule of Politics?

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