Barry Friedman’s “Taking Law Seriously,” 4 Perspectives on Politics 261 (2006), calls not only for taking law seriously but also for improved collaboration between political scientists and legal scholars, which is likely critical for better incorporating law into the empirical work on the courts. (See Michael’s earlier post here.) Some of Friedman’s concerns have been with the field for a long time, but even these bear repeating. See, e.g., Robert G. Dixon, Jr., Who Is Listening? Political Science Research in Public Law, 4 PS 19 (1971). Rather than focus on this larger theme, I want to offer a few thoughts on his historical comment about how we got to where we are today, a topic that ties in both with “New Legal Realism Week” and with “Interdisciplinary Ignorance and Division Week,” which is scheduled for October.
Friedman summarizes the origin and development of the divide between political scientists and legal scholars as follows:
Familiar history recounts how, beginning with Herman Pritchett in the 1940s, political scientists interested in the courts went their separate way from scholars in the legal academy. Legal realism occasioned the split. Legal realists recognized that judges, being human, were likely to see legal issues through the lens of pre-existing social and political commitments. Legal scholars, troubled by what Realism spelled for law’s legitimacy, took a normative turn, devoting their efforts almost exclusively to telling judges how they should decide cases. Political scientists, on the other hand, fascinated by Realist claims, chose the positive path, seeking a better understanding of how judges actually decide cases, and why.
Friedman at 263. Friedman does not develop this history in any more detail. In fairness to him, his essay is not meant to be a history lesson. But this short summary strikes me as problematic.
First, I am not persuaded that Pritchett deserves any blame for the divide (or credit, depending upon your point of view). In his critique of those whom he called “neo-behavioralist” political scientists, Wallace Mendelson suggested they were making the same “breakfast error” as the Legal Realists, i.e., regarding law as a myth and judges as frauds. See Wallace Mendelson, The Neo-Behavioral Approach to the Judicial Process: A Critique, 57 APSR 593, 593 (1963). Pritchett, however, strongly disavowed any adherence to what Mendelson’s described as neo-behavioralism. See Pritchett, Letter to the Editor, 57 APSR 948, 948 (1963). Pritchett saw the Legal Realists’ contributions in much less extreme terms than Mendelson, such as emphasizing that judges may be influenced by hunches in deciding cases and that close cases are seldom decided based on legal factors alone. Pritchett, Public Law and Judicial Behavior, 30 J. of Politics 480, 487 (1968) (describing these Legal Realist insights as “liberating hypotheses” for political scientists ).
As Lawrence Baum describes him, Pritchett was a moderate realist. See Baum, “C. Herman Pritchett: Innovator with an Ambiguous Legacy,” in The Pioneers of Judicial Behavior 57, 60 (Nancy Maveety ed., Univ. of Michigan 2003). As a moderate realist, he viewed the judicial decision-making process in quite sensible terms:
There is no naïve assumption that justices in deciding cases are completely free to vote their own preferences or that a voting record necessarily mirrors a justice’s inner convictions. On the other hand, there is no assumption, which would be even more naïve, that a Supreme Court justice merely “looks up the law” on a subject and applies it to the case in hand…. [T]he rules and the traditions of the Court supply institutional preferences with which his own preferences must compete…. He has free choice, but among limited alternatives and only after he has satisfied himself that he has met the obligations of consistency and respect for settled principles which his responsibility to the Court imposes upon him.
Pritchett, Civil Liberties and the Vinson Court 186-88 (Univ. of Chicago 1954).
Probably because of his moderation, Pritchett saw value in more traditional (though non-naïve(!)) public law scholarship, not just the cutting-edge behavioral or attitudinal work. In his extensive review of the field of public law in 1968, Pritchett urged that it remain “catholic enough to accommodate those political scientists who continue to find interest in the data of constitutional history, judicial biography, jurisprudence, the philosophies of judges, and commentaries on Supreme Court decisions.” Pritchett (1968) at 509. While the sort of public law work that could have maintained greater interdisciplinary ties between political scientists and legal scholars became marginalized over time, Pritchett appeared quite open to a wide range of scholarly approaches to law. Pritchett led the way to some important innovations in the study of the courts, but he did not reject other, more traditional forms of scholarship in doing so. See Nancy Maveety, “The Study of Judicial Behavior and the Discipline of Political Science,” in The Pioneers of Judicial Behavior 1, 8 (Nancy Maveety ed., Univ. of Michigan 2003).
Second, there is reason to think that Legal Realism was only a small part of the story in driving political scientists and legal scholars apart. Less has been written about the influence of Legal Realism on political scientists than on legal scholars -- and I have not even read all that is available about Realism and political science -- so I’ll offer more of a hypothesis than a conclusion. With this caveat in mind, what follows is some evidence supporting an alternative history than the one suggested by Friedman’s short summary.
The initial evidence comes from a report by a group of noted
public law scholars. In 1942, the Committee on Research of the American
Political Science Association formed a Panel on Public Law to assess the field.
After two meetings and much discussion by mail, the Panel issued a report in
1946. See Carl Swisher, Research in Public
Law: Report on the Panel on Public Law, 40 APSR 552 (1946). The report
reflects the input of twenty-five named public law scholars, including
Pritchett, Charles Beard, Robert Cushman, Charles Haines, Alpheus Mason and
others. An unknown number of unnamed scholars also contributed their views to
the Panel. (Nobody took roll at one of the meetings.) Id. at 552 n.1. The Panel’s report is not
an agreed upon statement of these scholars. There was too much disagreement to
produce such a document. Instead, it summarizes the “trends of thought” on
various topics in an attempt to summarize the different points of view.
This report predates the behavioral turn in political science (and the publication of Pritchett’s Roosevelt Court), but it follows the heyday of Legal Realism and members of the Panel were clearly aware of basic Realist insights. Id. at 559-60. If Realism was coercing a change in the field in the manner suggested by Friedman, there would likely be clear signs of it here.
According to the report, most members of the panel
thought public law scholarship should not be “narrowly legalistic.”
While the evidence from this report might be doubted because
it predates the flowering of behavioralism in public law scholarship, a
bibliographical essay published by Glendon Schubert in 1963 provides some further
insight. Schubert, Behavorial Research in
Public Law, 57 APSR 433 (1963). Schubert notes that the majority of public
law scholars at the time were not involved in behavioralist work, but he adds
that the “bulk” of the recent public law scholarship in political science
journals was by behavioralist scholars.
Together, the Panel on Public Law and Schubert’s essay suggest an alternative explanation for the developing divide between political science scholarship and legal scholarship. Rather than Legal Realism pushing political scientists in the public law subfield towards behavioralism, the interest in behavioralism in political science generally may have forced “unfashionable” public law work out of the political science journals. Even in the 1946 report, one member of the Panel was worried that the profession was losing interest in constitutional law because of assorted “fads” in political science. See Swisher at 562. Years later, the Somit and Tanenhaus survey of political scientists published in the 1960s showed just how unfashionable public law work had become. Only 2.9% of political scientists thought public law generated the most significant work in the discipline. As a field, public law beat out only “miscellaneous.” On the other hand, 22.9% found work in “general politics and behavioralism” to be the most significant work in the discipline, the clear winner among the eight choices. See Albert Somit & Joseph Tanenhaus, Trends in American Political Science: Some Analytical Notes, 57 APSR 933, 941 (1963). How political scientists viewed behavioralist work on the courts is not clear (or even how they defined the public law category in general), but they likely viewed such work more positively than other public law work. Presumably, graduate students interested in public law responded to the discipline’s dim view of non-behavorialist work -- and often avoided it, focusing instead on the sort of law-related work actually being published. Over time, these younger political scientists would replace the ones who were more traditional, reducing the range of scholarly interests and output among political scientists. And what was left in political science journals was much less accessible and interesting to legal scholars.
In sum, perhaps public law became less catholic, despite Pritchett’s urging to the contrary, because a certain type of work became fashionable in the journals (a concern voiced in recent times about other sorts of work). While the behavioralist work was certainly valuable, it may have had the unfortunate and even unintended consequence of reinforcing the interdisciplinary divide. See, e.g., Lon L. Fuller, An Afterward: Science and the Judicial Process, 79 Harv. L. Rev. 1604-1628 (1965-1966) (discussing the work of Walter Murphy, Samuel Krislov, Joel Grossman, Fred Kort, and Joseph Tanenhaus). If this account is correct, it is one about scholarly trends in the discipline generally and only partly about the impact of Legal Realism.