- 1 Neoinstitutionalism
Strategic theories are certainly correct that judges are often constrained by the
institutions within which they work, and ‘‘neoinstitutionalism’’ has become quite
fashionable among students of judicial behavior (see Clayton and Gillman 1999
for a Wne collection of essays on neoinstitutionalism). The neoinstitutional
hypothesis is simple: Institutions matter. As collections of formal and informal
norms, institutions prescribe and proscribe behaviors. Institutions are certainly
human creations, and far from invariant, but few would argue with the basic
contention that Robinson Crusoe used a decision-making process quite unlike
that employed by actors within institutional settings.
But it is unlikely that institutions have uniform eVects on all institutional
decision-makers. ‘‘Mavericks’’ obviously exist—is it possible to be more ‘‘maverick’’
than William O. Douglas? More generally, individuals vary in the degree to which
they respond to institutional incentives, in the degree to which they internalize
institutional norms. To treat unthinkingly the institution as the most useful unit
of analysis seems unwise. Courts do not make decisions; judges do, even if they
are much inXuenced by their courts. Developing useful cross-level theories
ofindividuals in institutionshas received insuYcient attention in contemporary
studies of courts.
A crucial and obvious attribute of many judicial institutions is the requirement
of popular accountability: The occupant of the judicial role must seek reelection.
It seems certain, therefore, that the goal of re-election or reappointment is inXuen-
tial for many judicial actors. For example, Hall ( 1995 ) discovered that state supreme
court judges are more inclined to uphold challenges to the death penalty when they
are approaching the time for their re-election. Huber and Gordon ( 2004 ) produce
similar evidence on the sentencing behavior of trial judges, claiming to be able to
‘‘attribute more than two thousand years of additional incarceration to this
dynamic’’ among Pennsylvania trial judges ( 2004 , 261 ). That judges are rarely
voted out of oYce seems to be of little consequence (just as it is inconsequential
that members of Congress are rarely voted out; see Hall 2001 ).
Furthermore, the inXuence of interest groups in shaping the agenda of the US
Supreme Court should be counted as a constraint on justices’ decisions. Research
in this area has become increasingly sophisticated, as in studies that actually
survey organizations, rather than just tending to formally Wledamicusbriefs
(e.g. Hansford 2004 ). Undoubtedly, some sort of interaction exists between the
decisions of courts and the political calculus of interest groups.
Perhaps the most outstanding investigation of the strategic hypothesis can
be found in Langer’s ( 2002 ) study of state supreme courts. What IWnd most
compelling about her research is that it investigates multiple causes of judges’
decisions, and argues that the degree to which judges engage in strategic behavior
judicial institutions 523