Clayton and Gillman have assembled a collection of 13 essays that in one way or another, purport to conduct “institutional” analysis of (almost exclusively) the U.S. Supreme Court. The avowed purpose of the editors is to move the study of the Supreme Court beyond the “Attitudinal Model” that is said to so thoroughly dominate the study of the court (the introductory chapter is entitled “Beyond Judicial Attitudes”). The essays run the gamut from quite traditional doctrinal analyses to qualitative historical studies to standard empirical analyses of courts and judges. Thirteen chapters are grouped into three parts: Conceptualizing the Supreme Court as an Institution, Legal Norms and the Internal Structure of the Court, and Extra-Judicial Influences on Decision Making. The authors are all concerned with the influence of institutional attributes on aspects of court policy making.
At least three major dialectics are apparent in the work presented in this book. First, and overwhelmingly, a profound tension exists between positivist and anti-positivist epistemologies. Some of the authors seem deeply committed to traditional scientific methods (and their underlying epistemology), while others strongly reject such methods in favor of “interpretivism” and its post-something (it is not always clear what the something is) epistemological underpinnings. Second, the authors seem deeply divided over rational choice, especially the applications of rational choice to the analysis of political institutions. Third, and on this dimension I am much less certain, there seems to be a normative divide among the papers, or at least some sort of division among those who have an idea of what courts ought to be, those who have different ideas on the subject, and those who do not venture a normative position. Each of these cleavages is so strong and so pervasive that, like a biology book presenting the views of both evolutionists and creationists, it makes the book difficult to read and evaluate.
The Attitudinal Model is certainly the lightning rod that attracts the fire of many of the contributors to this book, but one often gets the impression here that the model is constructed mainly from straw. Of course institutions matter. Does anyone believe that individuals act exactly the same when they are placed in different roles? Was Hugo Black’s behavior in the Congress the same as his behavior on the Court? I am certain no one would argue, for instance, that Black consorted with representatives of interest groups with equal frequency while working within the two institutional contexts. Institutions inevitably constrain the behavior of incumbents.
But this is only the beginning of the matter, not simply a mantra to be repeated over and over and over. The second cleavage goes to the question of how to understand institutional influences, and it basically revolves around the acceptance or rejection of rational choice (as manifest in the Positive Theory of Institutions-PTI). According to Clayton (31), the “fundamental weakness” of PTI is its “positive and anormative character.” The recommended alternative to PTI is historical institutionalism, of the interpretivist sort. A key difference in the two approaches concerns the degree to which and the conditions under which judges engage in strategic behavior. Given the epistemological gulf between the positivists and anti-positivists, it is unclear how their empirical differences can be resolved, even when agreement exists on what constitutes the important questions.
The papers included in this collection are disparate, so it is difficult to summarize the various conclusions that emerge. It is clear from many of the chapters, however, that individual judges must develop strategies for accommodating institutional constraints. Tentative conclusions are, first, that judges vary. Any analyst who treats judges as a homogeneous group when it comes to conceptions of judging is making a very serious mistake. Thus, microlevel analysis of individual differences is essential. Second, what one believes one should do is not always what one can do. As several of the authors observe, the feasibility of following precedent may be undermined by other conflicting objectives (e.g., maintaining the legitimacy of the court itself), thus forcing judges to choose between competing cherished values. Third, simplistic and symbolic (and politically valuable) descriptions of methods of decision making often obscure very real differences among judges. We must be very careful not to put too much confidence in judges’ own accounts of their behavior. Finally, the empirical question of how these beliefs about proper behavior influence actual decision making can be resolved only through careful empirical analysis, based mainly on positivist methods.
In the end, the central premise of this book—that institutions matter—cannot and should not be denied. But when the multiple cleavages that wrack the so-called neo-institutionalists are so plainly displayed and shown to be so completely interwoven and fundamentally irreconcilable, it makes it apparent that the value of the whole—the book—is decidedly less than the sum of parts—the chapters (not to start a new fight about reductionism). No one will be able to read the entire book without having her or his blood boil at least at some point. For those who enjoy these fights, this is a great exemplar. For those who wish to understand how it is that courts and judges make decisions, this book contains many useful chapters, but also several not-too-useful detours.