varies across contexts. SpeciWcally, her research ‘‘demonstrates that the likelihood
of strategic behavior by judges varies by preference distributions, divided party
control of state governments, constitutional amendment procedures, judicial re-
tention practices, length of judicial terms, and the degree of saliency associated
with the area of law’’ ( 2002 , 123 ). Put more simply: ‘‘these analyses demonstrate
that state supreme court justices vote sincerely when [they] feel they can and
strategically when they feel they must.’’ TheWnding of conditionality is surely
correct, and should not be lost on future research.
In theWnal analysis, the strategic hypothesis has certainly contributed to our
understanding of the factors inXuencing judicial decision-making, and the adher-
ents of the theory are quite correct to criticize those who adopt simple (and
simplistic) models of decision-making that ignore the institutional, political, and
social contexts of judging. Whether this contribution is revolutionary is doubtful,
for two reasons. First, the strategic hypothesis is closely connected to long-standing
thinking about the dependence of courts on their environments, and second, with
few exceptions, the hypothesis has only been stated and tested in its most crude
form, ignoring, for instance, a host of conditional variables, ranging from individ-
ual psychology to institutional structure. Most important, the assumption of
single-mindedness ignores the vast complexity that arises when decision-makers
seek to maximize many desiderata simultaneously. Finally, it is entirely unclear at
this point that the rational choice approach is the only framework within which the
strategic hypothesis can be tested.
An important element of the strategic hypothesis is that courts are dependent
upon their environments. As Epstein and Knight ( 2004 , 186 ) note, ‘‘To the extent
that judges are concerned with establishing rules that will engender the compliance
of the community, they will take account of the fact that they must establish rules
that are legitimate in the eyes of that community.’’ Thus, an important and obvious
connection exists between strategic considerations and theories of institutional
legitimacy.
5 The Legitimacy of Judicial
Institutions
.........................................................................................................................................................................................
All institutions need political capital in order to be eVective, to get their decisions
accepted by others and be successfully implemented. Since courts are typically
thought to be weak institutions—having neither the power of the ‘‘purse’’ (control
524 james l. gibson