In Sunday’s Washington Post (sorry–holiday travelling and such), two eminent members of my discipline secured some prime real estate–1,600 words starting on page 1 of the coveted “Outlook” section–to demonstrate the extent to which mainstream work on the Supreme Court by political scientists has become a bore and an irrelevancy. Lee Epstein and Jeffrey Segal have the following earthshaking revelations to vouchsafe about the Court: that some Supreme Court justices defy expectations by deviating, almost from the start, from the ideological commitments they were thought to have at the time of their appointment (e.g. Souter); that others move more slowly over time as they “rethink their jurisprudence” (e.g., Blackmun, Stevens, Kennedy); and that the “internal dynamics on the court” give the more incrementalist and “moderate” justices (e.g., O’Connor) certain advantages over the “extremists” whose principles are not so, um, flexible (e.g., Scalia). Which kind of justice will Samuel Alito be? Epstein and Segal say, who knows? Well sure, that’s fair enough, but you didn’t need 1,600 words to ask the question and give that non-answer.
No offense to the journalists around here, but for this we needed the insights of two of the leading political scientists in the country studying the Supreme Court? This article could have been written on a 45-minute deadline by Linda Greenhouse of the New York Times, Joan Biskupic of USA Today, or Charles Lane of the Washington Post. Epstein and Segal make the obligatory mention of “our research comparing the ideological labels assigned by commentators to Supreme Court nominees with their voting records on the court.” That research is little in evidence here–or if it does inform this article, it’s awfully thin stuff.
What political scientists and other scholars should be doing is asking why the justices of the Court decide constitutional cases as they do, and exploring the nature of the judicial power and the peculiar temptations it holds for men and women of certain kinds of ambition. Such an enterprise would entail reading and analyzing the opinions written by the justices–the best sources we have for understanding judicial behavior. Unfortunately for our mainstream political scientists–and more unfortunately for their students–they lost interest in constitutional law as such long ago, and began instead to study “judicial behavior” as though it could be understood in isolation from its primary tangible product, the judicial opinion.
A little more than halfway through Epstein and Segal’s piece, one’s hopes rise that they may have something interesting to say when they write this: “Branding nominees as ‘conservative,’ ‘liberal’ or something in between . . . ignores the nature of judging.” It does indeed. Judging ought to be an activity to which the application of such labels is meaningless.
Oh, wait a minute. I omitted the central clause in that sentence. Here it is in full: “Branding nominees as ‘conservative,’ ‘liberal’ or something in between, with the expectation that those nominees will act reflexively in accordance with those labels, ignores the nature of judging.” It turns out that the parenthetical clause I dropped carries the real burden of the sentence. Epstein and Segal haven’t understood “the nature of judging” even for a moment. All they really meant was that the Court is a different sort of political institution, whose internal dynamics among its personnel aren’t the same as what you’ll find in other institutions. True enough, but that’s the sort of small truth that obscures and diverts one’s attention from larger, more important ones.
One doesn’t often get to watch the slow-motion suicide of an academic discipline played out in public. But there it is, in one of America’s great newspapers