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The Constrained Court:
Law, Politics, and the Decisions Justices Make
Michael A. Bailey & Forrest Maltzman

Honorable Mention for the 2012 C. Herman Pritchett Award, Law and Courts Section of the American Political Science Association

Paperback | 2011 | $31.95 | £26.95 | ISBN: 9780691151052
216 pp. | 6 x 9 1/4 | 28 halftones. 20 line illus. 12 tables.
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Preference Estimates and a Methodological Appendix

How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? The Constrained Court combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court.

Michael Bailey and Forrest Maltzman show how two types of constraints have influenced the decision making of the modern Court. First, Bailey and Maltzman document that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The authors find considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, Bailey and Maltzman show that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president.

The Constrained Court shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.


"[I]n The Constrained Court, Michael Bailey and Forrest Maltzman have launched a frontal assault on the citadel. Their book is a tour de force that will likely supplant the attitudinal model and become a basis for a new paradigm for understanding decision making. . . . I want to underline that is one of the most important studies in the field in the last decade. Neither Bailey nor Maltzman is a trained public law scholar, which makes it so infuriating that they have written such a path breaking study. The book should be mandatory for public law scholars and graduate students and highly recommended, as the authors suggest, for Chief Justice John Roberts."--Richard L. Pacelle, Jr., Law and Politics Book Review

"The Constrained Court challenge[s] established paradigms in [its] fields, introduce[s] inventive and original research and seek[s] to transform the ways in which we think and talk about the nature of judging. It is a testament to the energy imagination, and erudition of the authors that they can legitimately take credit for having advanced these objectives."--Bruce G, Peabody, Perspectives on Politics

"If you want a sophisticated account of judicial decision making that integrates PPT with serious consideration of the role of law, the book you want to buy is The Constrained Court by Bailey and Maltzman. It integrates pivotal politics models with a two dimensional model of judging that represents legal preferences in a rigorous way. The Constrained Court is rigorous and illuminating."--Larry Solum, Harvard Law Review


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Table of Contents:

Preface ix Chapter 1. Introduction 1
Chapter 2. The Measure of Law: Estimating Preferences across Institutions and Time 17

Part I. Legal Value Constraints
Chapter3. Disentangling Law and Policy Preferences 47
Chapter 4. Law Matters 64
Chapter 5. Causes and Consequences of Diverse Legal Values 80

Part II. Political Constraints
Chapter 6. Separation of Powers and the Strategic Constraint 95
Chapter 7. Signals from the Executive 121
Chapter 8. Conclusion 140

Appendix. Statistical Details 156
Notes 175
References 185
Index 203

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