How does the specific task of reaching decisions in an adversarial context discourage, enable, or perhaps even require judges to call on their own conceptions of what is “right” or politically desirable for society? What is the relationship between ideology and morality? How might the way judges think about their responsibilities influence the role of these factors in judicial decision making? When judges try to convince others of the merit of their viewpoints, are they necessarily being “strategic” in the pursuit of personal and/or political goals? These are just a few of the questions that came to mind in reading this collection of books on judicial decision making.

Each book considers the extent to which judges act to achieve socially desirable ends and the degree to which they are aware of extralegal factors influencing their decision making. In sum, they suggest that judges' worldviews matter, and perhaps should matter, in how they reach decisions, not because judges intentionally flout legal norms in pursuit of policy, but because the task of judging in difficult cases requires the consideration of alternative conceptions of what is “good” for society. Brian Z. Tamanaha argues that judges have long been aware of the influence of external factors in exceptional cases. He and H. Jefferson Powell would have us believe that this is not a problem for the legitimate exercise of judicial authority so long as unelected judges are honest about the potential of subjective influences in their decision making. I, for one, am not completely convinced, but I do appreciate the care with which these authors have corralled evidence and arguments in support of these interesting and important ideas.

In Strategy on the United States Supreme Court, Saul Brenner and Joseph M. Whitmeyer review the literature and test some original hypotheses about the strategic behavior of justices on the Court. Their core argument is that when one carefully examines the empirical evidence, strategy—conceived mainly as the pursuit of policy goals—does not matter as much as many political scientists suggest. Supplementing aggregate data originally offered by Brenner and John F. Krol (“Strategies in Certiorari Voting on the United States Supreme Court.” Journal of Politics 51 [November 1989]: 824–840), the authors show that individual justices on the Vinson, Warren, Burger and Rehnquist Courts varied in their use of “outcome prediction strategy” in voting for certiorari. Confirming previous research, they demonstrate that “affirm-minded” justices (i.e., those who vote to affirm the decision of the lower court) on the winning side of the conference vote are more likely to vote to grant cert than affirm-minded justices on the losing side. But they also show that among the individual justices, there is variation in the use of this strategy, concluding that “only about half of the individual affirm-minded justices pursue this strategy” (p. 161).

There was also no evidence that “reverse-minded” justices pursued this strategy, in the aggregate (Brenner and Krol, 1989) or individually on the Rehnquist Court. The authors explain this difference by positing that affirm-minded justices have much to lose if they are on the wrong side of the merits. They can only benefit if they have a good chance of winning—so it makes more sense for them to try to predict the outcome of the case before voting for certiorari. Reverse-minded justices have little to lose and substantially more to gain in voting for certiorari (i.e., changing the status quo and decision in the lower court)—so they are less likely to act strategically to try to predict the outcome.

Brenner and Whitmeyer also attempt to demonstrate that the extent of “successful” bargaining between members of the majority conference coalition and majority opinion writer is much less than conventional wisdom suggests. Indeed, they contend that threats not to join the majority, suggestions about wording, and similar inter-chamber communications from those in the conference coalition were successful only 6% of the time. The authors acknowledge that they are only looking at communications that occur after conference so that any preemptive accommodation the majority opinion writer makes as a consequence of the Court's discussion of the case is not included in their estimation. Still, that number will seem surprisingly low to those who contend that strategic bargaining about the content of the Court's decision is a substantial part of the process.

In the rest of the book, the authors summarize and offer alternative explanations for findings involving the strategic behavior of the justices in various contexts. These discussions may strike some scholars as somewhat selective and less rigorous. I was stuck by their careful consideration of legal norms and an acknowledgment that the justices had to be convinced to change their votes for reasons other than strategy. The authors allow for the possibility, often dismissed in political science, that in conference, the justices take seriously the task of coming to a collective agreement about how best to resolve cases, without always jockeying for ideological advantage or future favors. Regardless of whether or not you accept this characterization of the justices' intent, the book provides an accessible assessment of the literature that should demystify rational-choice research on the courts for students and serve as a useful starting point for the critical discussion of the strength of empirical data underlying alternative models of judging.

In Constitutional Conscience, Powell tries to debunk the idea that there is no place for morality in judging. Starting with Chief Justice Marshall's invocation of the oath that judges take to support the Constitution in Marbury vs. Madison (1803), Powell argues that there has been a moral dimension to the judicial duty from the earliest days of the U.S. system. He fleshes out the argument by describing the alternative views of four fictional judges whose names are loosely based on the first four chief justices of the Court (a nice touch that he carries throughout the book). It is the fourth judge, Marsha, who seems to come closest to what Powell advocates. As he summarizes Marsha's views: “[F]rom the beginning of the Republic it has been clear that even questions about the proper interpretation of the Constitution's institutional arrangements may be unanswerable unless the interpreter looks to reasons that take the form of saying ‘this is the best [most just, equal, efficient, sensible] outcome,’ and for that reason the Constitution requires it… [E]ven controversies about quite specific institutional details may be irresolvable unless the humanly best outcome is considered” (pp. 28–29). According to Powell, this “best outcomes” approach comports with what the public actually expects of justices; while lawyers care about jurisprudence and the cogency of legal argument, the people are interested in the substance and consequence of judicial opinions.

Although it is sometimes hard to figure out what differentiates the realist from the “constitutionally conscious” judge, the main differences seem to be 1) in the acknowledgment that judging is a “creative endeavor” (p. 104), a virtue Powell refers to as “candor,” and 2) in understanding that the Constitution is not just “what judges say it is” through application of judicial training that allows them to discover constitutional truths, but “what the justices rightly say it is” (p. 32)—a subtle difference that acknowledges contestations about constitutional meaning and elevates the importance of justification in decision making.

In the heart of the book, Powell describes several constitutional “virtues” that he deems “necessary if one is to engage in the political and legal practices that revolve around the constitution” (p. 82). The first, “faith,” involves an acceptance of the intelligibility of the document and a commitment to govern oneself “in accordance with the Constitution's intelligible meaning” (p. 85). “Integrity” involves the sincere search for the “most plausible resolution of the issues in light of the text and constitutional tradition” (p. 90), and “candor” an acknowledgment that reasonable alternative interpretations may exist. “Humility” involves doubting that the Constitution is capable of resolving all controversial questions without resorting to the political process, and “acquiescence” a respect for precedent and the constitutional traditions that shape our understanding of the document.

Powell is advocating an approach to constitutional interpretation that is more intellectually honest, given what we know about how judges make decisions. For political scientists wondering how this “best outcomes” approach to judging is different from acknowledging that political ideology matters in how judges make decisions, I am not convinced it is. Indeed, Powell equates the two. He writes that “the justices seem to act fairly consistently in accordance with what we can pejoratively call their policy preferences or more benignly term their views on the humanly best outcomes in constitutional cases” (pp. 34–35). So it seems that what he is talking about as the “humanly best outcome” in cases is what political scientists have been talking about as the role of “ideology” in decision making—he is just suggesting a different way of thinking about the judicial task that candidly incorporates such influence. An entirely different book can (and should) be written that differentiates between the influence of political and moral considerations in judging.

Moreover, even if Powell is correct that there has always been a moral component to judging, merely acknowledging that constitutional cases could result in different outcomes depending on the moral (or ideological) views of the judge deciding them does not solve the problems that subjectivity poses in judicial decision making—it serves to highlight them. So long as the outcome has more to do with who is making the decision than the rule of law itself, any promise of fairness or equality before the law is illusory. No amount of “candor” or “integrity” on the part of judges can alter this fact because the legitimacy of judicial outcomes does not (and cannot) depend upon the subjective state of mind or “good intensions” of the decision maker.

In Beyond the Formalist-Realist Divide, Tamanaha argues that judges have long been candid about of the role of external forces in their decision making. Specifically, he takes on the oft-told story about the “emergence” of legal realism in the first half of the twentieth century. According to this tale, the ideas of Oliver Wendell Holmes, Benjamin Cardozo, and Roscoe Pound represented a sea change in the way jurists and legal academics thought about law; prior to this era, all legal thinkers were “formalists” conceiving of law as a closed system where judges were charged with the mechanical task of discovering the answer to legal questions without reference to external considerations.

Tamanaha argues that the “formalist” legal culture from which the realists emerged never really existed. As such, the ideas of these admired legal minds were not revolutionary, and certainly not original. As evidence, Tamanaha cites a litany of judges and legal academics who acknowledged the importance of politics, personality, and/or background characteristics in judging before the 1920s (and in some instances before the 1900s). His aim is to demonstrate that “[r]ealism about judging was commonplace before realists came on the scene” (p. 67). By collecting various quotationss from realists acknowledging the importance of legal factors in judging, Tamanaha also attempts to discredit a “common misapprehension about the realists … that they were radical skeptics about judging” (p. 68).

Fully acknowledging the strength of such evidence, even if it is true that judges and law professors were talking about the influence of ideology and/or personal factors prior to the 1930s, should the thinkers we characterize as “legal realists” not get some credit for pulling these ideas together and thinking systematically about the implications of external influences in judging for legal education and the legitimacy of judicial outcomes? Moreover, a difficulty with the presentation of historical evidence of this sort is that many of the quotations the author invokes are out of context (not Tamanaha's fault—it would be impossible to present the impressive volume of testimonial evidence he does without this being the case). Still, isolated acknowledgments that external considerations and/or the law itself matters in judging says nothing about the relative importance that legal thinkers placed on these considerations in decision making. According to Tamanaha, anyone who at any time acknowledged the importance of law and external factors in judging is a “balanced realist.” By this definition (and by his own admission), Justice Antonin Scalia is a balanced realist, but so is Judge Richard Posner (p. 196). Clearly, these jurists have very different approaches to interpretation that are swallowed up by this all-encompassing category.

Tamanaha alludes to this, noting that “balanced realism will not resolve … any of these differences” (p. 197). Still, he argues, “a recognition of balanced realism promises a change for the better… With these extreme positions set aside, the grounds of real normative and empirical disagreement will be more apparent and the discussion more focused and productive” (p. 197). Here, the author seems to be referring to the fact that political science scholars doing empirical work incorrectly view themselves as progeny of the legal realists. According to Tamanaha, most realists were “balanced” in their approach to legal interpretation. Law was the starting point, personal factors mattered at the margins. Empirical political scientists, on the other hand, are “slanted” (pp. 111, 115, 118, 121, 122) in their approach to studying judicial behavior, agenda-driven, and out to show that judges are politically motivated (pp. 120–121). This part of Tamanaha's argument is sure to catch the interest of many political scientists, and I will leave it to them to evaluate its merits. I would just like to note that it is ironic that an author who starts off with such a nuanced view of the development of ideas in his own discipline characterizes scholars in a distinct discipline so monolithically. I think that the sharpness of his tone takes away from his general argument. Moreover, his statement that “until the last decade, researchers did not test directly for adherence to precedent or other legal factors” (p. 233 n. 54) ignores some important empirical research, including “case fact” studies of search and seizure and obscenity cases done in the middle to late 1980s. Indeed, I am guessing that if we applied the same criteria to political science scholars as Tamanaha does to judges and legal academics (i.e., simply acknowledging that law and politics matter at some point in their careers), most political scientists—including some of the most ardent attitudinalists—would qualify as “balanced realists.”

More importantly, at base, Tamanaha's argument suffers from the same difficulty as Powell's. Even if judges are aware, and have long been aware, of the role of personal factors in their decision making, and even if that influence is implicit in the task (as Powell argues) or incidental rather than stategic (as evidence presented by Brenner and Whitmeyer tends to demonstrate), simply noting this does not address the problem that intersubjectivity poses for judicial legitimacy.

The reason we abide the substantial influence of unelected jurists in our democratic system is because they are experts in law. The task of legal interpretation is supposed to shape, guide, and constrain judges' decisions. To the extent it does not, we as a society will have to come up with a better justification about why their personal conception of what is good or right for society should govern where reasonable contestation exists other than the very fact that they are judges. Simply stated, the arguments provided by these authors do not adequately address the critique that has been implicit, if not explicit, in empirical studies for years. No amount of virtue or self-awareness on the part of legal decision makers can change this fact. That is not to say that these books do not provide us with a better understanding of what judges do and how they think about their task. They certainly do. But given these realities, it is time for legal theorists and/or political scientists to suggest a different way of selecting judges that legitimates these influences or a better theory of judicial authority to justify them.