Chapter Summaries

From Bailey and Maltzman. 2011. The Constrained Court: Law, Politics and the Decisions Justices Make. Princeton University Press.

Chapter 2: The Measure of Law: Estimating Preferences across Institutions and Time

Understanding the role of the Supreme Court in the political system requires placing its behavior in the context of what the other branches of government want.  A central challenge is therefore estimating preferences in a manner that is comparable across the Supreme Court, Congress and the Presidency.  This chapter develops such a method, relying on “bridge observations” of non-Court actors taking positions on Supreme Court cases.  This chapter also identifies across-time preference change as a major challenge, providing a critique of Poole and Rosenthal NOMINATE scores and a critique of Martin and Quinn measures of judicial ideology.

Chapters 3, 4, 5: The Legal Doctrine Constraint

Are justices constrained by law?  If so, how?  And which justices?  Debating whether the legal model or the attitudinal model best describes the court has been a staple of the political science literature on the Supreme Court for the last two decades and more.  Part of the reason for the persistence of the debate is that the immense methodological challenges in parsing out these two perspectives.  We provide a novel approach to identifying legally-constrained behavior – implicitly the comparing behavior of judges on Supreme Court cases to the positions taken by elected officials who are presumably less constrained by law.  Using this method and the tools developed in Chapter 2 we find considerable evidence that law matters on the Supreme Court.  We also find considerable heterogeneity across justices and probe the sources of these differences.

Chapter 6:  Separation of Powers and the Strategic Constraint

Does Congress constrain the Supreme Court?  There is an active debate on the question in the political science literature.  We assess this question with two innovations.  First, we use new measures of inter-institutional preferences.  Second, we provide a new approach to statistical identification of such constraint, allowing us to build on existing models to not only test whether Congress constrains the Court on only statutory cases, but also a model where Congress constrains the Court on both statutory and constitutional.  We find considerable evidence of constraint, both on statutory and constitutional cases.

Chapter 7: Signals from the Executive

Does The Solicitor General influence the Supreme Court?  Most scholars believe this is the case, but as in earlier chapters statistical identification is very difficult.  Building on the approaches we used in earlier chapters we develop and test theories of influence, finding that SGs have influenced justices, but not all equally.  We also find evidence that some of the influence is informational; that is, justices appear in part to use the SG brief as an informational shortcut.