The Politics of Judicial Review
This article marries the positive literature regarding judicial behavior to the normative literature regarding judicial review. Though scholars in the legal and political science academies both study judicial review, their approaches are dramatically different. Legal scholars tend to the normative, studying how judges should behave. Political scientists and political economists ask positive questions: how do judges behave, and why? The central thesis of the article is the normative literature about judicial review will remain impoverished until it takes account of the positive scholarship. Ought implies can; much of the positive literature suggests judges cannot or will not behave as normative scholars demand.
The article proceeds in four parts. After an Introduction, there is a brief historical discussion to explain why normative and positive scholarship parted company in the early 1940s. The heart of the article follows. This part is a comprehensive examination of the political influences on the constitutional judges. Beginning with the politics of the judge herself, the article then moves out in concentric circles to examine (a) the politics of judging on a collegial court; (b) the difficulties the Supreme Court faces in managing a large judicial hierarchy; (c) the influences of the other branches on Supreme Court decisionmaking; and (d) the relationship between public opinion and judicial review. In each section the goal is to show how confronting normative aspiration with political reality refocuses the questions that ought to be asked about judicial review. A subsidiary goal is to introduce normative scholars who are unaware to the vast positive literature about judicial behavior. The final part examines how the political influences described here ought to bear upon normative scholarship on judicial review.