strategically in this sense. Neustadt long ago taught us that even the US president is
severely constrained by others when he documented that the power of the president
is the power to persuade, not to command. Undoubtedly, judges do not judge in a
vacuum.
But it is likely that judges, like all humans, attempt to maximize many diVerent
objectives by their actions on the bench, and there is no clear evidence that
aVecting the implementation of their policies is the overriding goal of most
justices. For instance, the single-minded pursuit of policy goals may on occasion
threaten the legitimacy of a court, and therefore judges will act to protect the
institution rather than maximize policy preferences. Consequently, it is not sur-
prising that evidence in support of the strategic hypothesis is decidedly mixed.
Even though Epstein and Knight ( 2000 , 640 ) provide a list of twenty-nine citations
that provide ‘‘empirical support for the plausibility of the assumption of strategic
interaction,’’ it is unlikely that this body of research actually tests the strategic
hypothesis within a fully speciWed model—that is, in the context of controlling for
plausible rival hypotheses. Moreover, the strategic hypothesis seems to be nothing
more than that judges consider more than their own policy preferences in making
decisions. Consequently, research on the eVect of elections on court decision-
making, a voluminous and long-standing concern of judicial scholars, scores as
support for the strategic hypothesis. From this perspective, strategic behavior
seems to be any behavior taking into account anything other than one’s own
personal policy preferences. Moreover, it seems likely that some justices consider
it improper to engage in anything but sincere decision-making, that others view
the reactions of others to be too unpredictable to warrant much consideration, that
some justices simply mispredict the reactions of others, and that which goal comes
to dominate any particular decision depends mightily upon a series of contextual
variables. Thus, it is probably not surprising that the empirical evidence for this
form of strategic behavior is so contested.
It is also unclear how strategic behaviorWts within normative theories of how
judges ought to behave. One factor the strategic literature rarely considers is that
many judge strategic behavior as normatively inappropriate. A synonym for
‘‘strategic’’ is ‘‘insincere.’’ Many expect judges to act sincerely, directly and only
considering matters of legality, justice, and right and wrong. Strategic action makes
good sense for consumers in economic marketplaces; one buying a home from
another often acts insincerely and in a manipulative fashion without a great deal of
ethical opprobrium. But law and judging are not economics. It is easy to imagine
that the colleagues and constituents of strategic judges come to disapprove of such
behavior, and ultimately to distrust and dismiss such judges. In its inattention to
most normative considerations, rational choice models of human behavior are
typically incomplete accounts of how decision-makers in public political roles
make decisions.
522 james l. gibson