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Judicial Process and Behavior

"Since Marbury v. Madison (1803), commentators have sought to explain and predict, as well as evaluate, [judicial] decision making. Traditional legal commentary relied almost exclusively on legal factors—principles, provisions, procedures, and precedents. Modern analysis tends to look beyond the law to explain judicial decision making. Political scientists in particular are interested in the political factors that influence judicial behavior. Indeed, the study of judicial behavior is a subfield of the public law field of contemporary political science."

"The law is complex, rich, and subtle.  Judicial decision making, especially at the level of the Supreme Court, is hardly a mechanical process. Legal reasoning is certainly important, but it is inevitably colored by extra-legal factors. It is not unlikely that two judges, equally well trained and capable in legal research, will reach different conclusions about what “the law” requires in a given case. The fluidity of judicial choice is most apparent when the Supreme Court is called on to interpret the many open-ended clauses of the Constitution. Although the Court’s constitutional decisions are rendered in a legal context, they cannot be fully explained by legalistic analysis. To believe otherwise is to subscribe to the myth of legality, the idea that judicial decisions are wholly a function of legal rules, procedures, and precedents."

Quoted from Stephens and Scheb, American Constitutional Law, 3rd ed. (West/Wadsworth 2003), p. 58.


“On the whole, American citizens have a fairly well formed idea of the factors the justices of the Supreme Court should rely on in reaching their decisions.  Moreover, they have a sense of what factors justices actually do rely upon in making their decisions.  Clearly, Americans are uncomfortable with overtly political influences on decisions and would prefer that the justices rely less on these stimuli. Citizens are much more comfortable with the justices relying on legal factors, especially the perceived intent of the founders.  This suggests that the myth of legality, at least in the sense of a prescriptive ideal, is alive and well in American political culture.  Americans may be realistic about the actual determinants of Supreme Court decision-making, but they continue to believe in the ideal of the apolitical Court.  That being the case, there is reason to fear that popular demystification of judicial decision-making may further erode popular esteem for the Court.”

Quoted from John M. Scheb II and William Lyons, "Judicial Behavior and Public Opinion: Popular Expectations Regarding The Factors That Influence Supreme Court Decisions," Political Behavior, Volume 23, Number 2 (June 2001), p. 190.