ECONOMY

chapter 15
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THE JUDICIARY AND
THE ROLE OF LAW
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mathew d. m Ccubbins
daniel b. rodriguez
1 Introduction
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Positive Political Theory (PPT) affords a fresh perspective on how we understand
the courts and judicial behavior. Traditional legal analysis of law and politics makes
two critical assumptions: first, it studies the courts in isolation; second, it interprets
judges as acting last in the policy-making process; that is, at the end of a series of
steps by Congress, the president, or the bureaucracy that conclude with a judicial
determination. From this perspective, judges appear to be unconstrained by external
forces. The only source of constraint is the rule of law itself, manifested in precedent,
stare decisis, and control by judges higher up the chain of command. Hence, the
traditional view assumes the law, courts, and judicial behavior are the only factors
relevant for explaining what judges do and how they decide cases.
Although traditional scholars always knew that other political actors were important,
they saw episodes of political influence as isolated rather than systematic. It is
a commonplace in the literature on early American constitutional law, for example,
to note that political factors underlay the Supreme Court’s decision in Marbury v.
Madison (1803) and, perhaps even more explicitly, in the controversy over President
Franklin D. Roosevelt’s court-packing scheme of the 1930s. However, these stories are
powerfully resonant in traditional constitutional law discourse precisely because they
are viewed as exceptional, as representing those rare instances in which rule of law
values were trumped by political (read: sinister) forces.