Legislatures and the Judiciary: The Effects of Statutory Constraint

One of the fundamental debates within the literature of political involves the tension between law and politics, and the influences and/or constraints each aspect imposes upon decision making. As Corwin (1957,171) observed, the Constitution creates an "invitation to struggle" among the branches of government, with each vying to expand its sphere of influence. Following Corwin's lead, many scholars focused on one particular struggle: between Congress and the President. Yet, the constitutional struggle between Congress and the courts is of equal importance, particularly if we are interested in determining who makes the law - the Congress that writes statutes, or the courts that interpret them? Consequently, an inherit tension may exist between the ]egislative and judicial branches - ]egislatures initially pass statutes defining particular areas of the law, but the courts have opportunities to interpret those statutes - and between the federal and state levels. As Ferejohn and Weingast (1992, 568) note, "Democratic rule requires that the legislature be able to direct the conduct of government through the use of statutory commands." However, many scholars claim the judiciary acts as a counter-majoritarian institution (Caldeira 1986; Mishler and Sheehan 1993; Flemming and Wood 1997), through the power of judicial review. Thus, a "continuing colloquy" exists between Congress and the courts over the meaning of the law (Paschal 1992). On one side are advocates ofthe attitudinal model, who argue that judges are motivated primarily by their personal ideological policy preferences (Segal and Spaeth 1993,2002). On the other side are legal advocates, who contend that the law is of paramount importance (Posner 2001). While numerous analyses exist which empirically demonstrate the influence of ideology, a similar pattern has not emerged for the quantitative analysis oflegal influences. Though qualitative research reinforces the conventional wisdom about the influence of law, "the real question is not whether such behavior exists at all, but whether it exists at systematic and substantively meaningful levels" (Spaeth and Segal 1999, 7). Unfortunately, previous quantitative research oflegal influences is plagued by inadequate measures. This proposal aims to fill this gap by developing an empirical measure of statutory constraint, and testing the measure across decisions in state and federal courts. Our proposal offers an alternative approach to measure the impact of statutory constraint. We develop this approach by examining how legislatures (both federal and state) attempt to use the language of statutes to control the decision making process of judges. Each, we argue, possesses the ability to constrain individual behavior by passing statutes containing detailed language. To investigate this thesis we borrow from the bureaucratic politics literature to introduce and test a new measure of statutory constraint. This continuous measure provides for a rigorous examination of the relationship between statutory constraint and judicial preferences. Our research hypotheses examine whether legal constraint limits judicial discretion, therefore limiting the potential that judges will render a sincere vote: HI-" As statutory constraint increases the likelihood of a judge casting a non-sincere/constrained vote will increase. H2: As the ideological distance between the individual judge and the statute increases, the likelihood of the judge casting a non-sincere/constrained vote will increase. fh As liberal statutOlY constraints increase, conservative judges will be more likely to cast nonsincere/ constrained votes; and, conversely, as conservative statutory constraints increase, liberal judges will be more likely to cast non-sincere/constrained votes. Our previous research on congressional control of the U.S. Courts of Appeals and the U.S. Supreme Court demonstrates that Congress successfully constrains judicial behavior through statutory language, although this constraint is asymmetric across individual ideology (Randazzo, Waterman, and Fine 2006; Randazzo and Waterman 2007). The results indicate that we obtain a more robust analysis ofthe important theoretical dynamic between the ideological preferences of judges and statutory constraint. More importantly, our past research demonstrates that models which do not consider the systematic effects of both ideology and constraint are missing a crucial dynamic of judicial behavior. These initial results have important implications for theories of judicial politics and separation-of-powers and our proposal builds upon these insights. Therefore, the intellectual merit of the proposal is aimed at developing new and continuous measures of statutory constraint, as well as providing rigorous tests of the legal model versus the attitudinal model of decision making. By so doing, we believe our proposal will make a broader impact by advancing both new theoretical and empirical understandings of the tradeoffs.