On the Fluidity of Judicial Choice

Within the past decade, a significant change has occurred in political science literature about the judiciary. The central questions have shifted from public law concerns—what is the law and its value?—to a primary focus on decision-making and process—how and why courts decide what they do, and with what political effects? The Supreme Court still dominates professional attention, but a host of new research techniques (jurimetrics and socialization studies, content and capability analysis, small group theory, etc.) vie for the allegiance of researchers.1 The variety of methods in vogue is formidable, and a testament to the borrowing power of the profession. So has been the sound and fury accompanying the change. The new approaches are perhaps too young to attempt a synthesis with traditional methods of analysis or even among themselves. Yet it is never too early to locate unities of inquiry, including common problems. The object of this essay is to air one difficulty facing virtually every student of the judicial process—the fluidity of judicial choice—and to examine some of its implications for research in and normative evaluation of judicial behavior. The general argument should be stated at the outset. My purpose is to present empirical findings as a basis to critique some current research techniques in hopes of contributing to the analytical synthesis which must come if the discipline is to make a concerted advance in understanding judicial behavior. From a research standpoint, an unfortunate by-product of the debate between the “quantifiers” and the “qualifiers,” as Joseph Tanenhaus has distinguished them, is that extremes of advocacy have obscured the much more important things that students of the judiciary share in common than the methodological differences which agitate them.