Lobbying the Supreme Court—An Appraisal of "Political Science Folklore"

Abstract

N traditional legal theory, Supreme Court cases arise accidentally, and judicial holdings emerge from the fortuitous circumstances of private and governmental litigation.Political scientists and other writers, on the other hand, have embraced in varying degrees a view that the adversary theory of the law is largely a myth.This author has himself entertained this belief without being clear about the suppositions which support it.After investigating the Supreme Court litigation process, this belief has been seriously shaken.Two basic kinds of empirical research support a "political" view of Supreme Court action.Both approaches rely upon behavioral data and eschew, or at least minimize, the relevance of legal doctrine and procedure.In one approach judges are perceived as political actors and behavior is observed within psychological or sociological "models" or "systems."For example, the United States Supreme Court, stripped of its surrounding legal paraphernalia, is sometimes conceptualized as a small social group.Members of this group are observed behaving in relationships of power, bargaining, and leadership.'Other psychological models are created to analyze judicial opinions in terms of their "stimuli and responses," "votes," "attitudes," "values," or "strategies."'The evidence gathered in some of these highly technical inquiries is supposed to provide convincing demonstration that judges, like other human beings, respond to stimuli other than legal norms, and that their public acts follow "laws" of psychology at least as often as they do the law of stare decisis.3

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