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Vanderbilt Law Review

First Page

1849

Abstract

Journalists covering the 2000 presidential election controversy have had little trouble reconstructing the events of virtually every stage of the post-election process, reporting even privileged conversations among the candidates' lawyers. Yet one critical stage of the process remains shrouded in mystery: the behind-the-scenes events at the Supreme Court, which led to its decision in Bush v. Gore. Investigative reporting has produced only a few suggestive details. The Court has long insisted that it speaks through its opinions, and indeed the Court has left the public with only the Justices' statements at oral argument, and the various opinions themselves, from which to identify the considerations that motivated the Justices. Undoubtedly, this will not deter law professors, whose analyses are likely either to construct novel defenses, claiming that the Justices were acting consistently with constitutional doctrine, or to attack the decision as unjustified and result-oriented, again on doctrinal grounds. Law professors, however, do not have a good track record on Bush v. Gore. Although we do not have hard numbers, strong anecdotal evidence suggests that law professors generally predicted that the Court would not even take the case. If law professors cannot predict when the Court will act, one might ask, can we confidently rely on law professors to explain what happened now that the Court has acted?

While we do not have evidence of predictions by judicial politics scholars concerning Bush v. Gore itself, the opening quotation reveals that at least two prominent judicial politics scholars anticipated the possibility not only of action in such a case, but also of a result consistent with the Court majority's ideological predilections. For judicial politics scholars, the notion that judges and Justices pursue their policy preferences is nothing new. That the five conservatives would vote for Bush and the four liberals would vote for Gore simply underscores the commonly held belief among political scientists that Supreme Court Justices vote consistently with their attitudes, meaning their ideological views.' For judicial politics scholars, regardless of their own political affiliation, Bush v. Gore must seem the ultimate academic victory. Yet law professors might justly rejoin that even if judicial politics models could predict the outcome, the tools of political science offer little in helping to understand the subtleties and peculiarities of the opinions themselves. If judicial politics models stop at the 5-4 lineup in Bush v. Gore, then, at least in thinking about this one case, they offer little beyond what media pundits already provide. The difference be- tween the judicial politics approach, which proceeds through statistical analysis of databases with a large number of observations, and that of traditional legal scholars, who largely engage in close doctrinal analysis, helps explain why one scholar has cited this academic divide as a case of "unfortunate interdisciplinary ignorance." Lawyers read but can't count; political scientists count but don't read.

In this Article, we show how a third field, social choice, can serve as a link between legal analysis and judicial politics, one that will allow lawyers to contextualize doctrine and political scientists to move beyond counting votes. A product of positive economic theory, social choice is most widely known for revealing the possibility of cyclical preferences when three or more persons are selecting among three or more options, none of which has first-choice majority support. That is but a special case of collective preference aggregation, and social choice properly understood is as much about identifying the conditions under which cycling does not arise as it is about the phenomenon of cycling itself. Although social choice and judicial politics are ordinarily not considered together, the models provided by scholars in each field help to explain an aspect of judicial behavior that is outside the other's frame of reference. Judicial politics scholarship reveals not only that judges' preferences matter, but also that Justices behave in a sophisticated manner in pur- suing their policy objectives. Social choice has been used to study how the Supreme Court's various institutional rules serve to overcome difficulties associated with transforming group preferences into a collective output, thus shaping the development of constitutional doctrine. Our purpose is as much to connect these two fields as to explain how both can complement legal analysis. The establishment of such a connection is timely, because a growing and influential body of judicial politics scholarship has moved beyond mere predictions based on Justices' attitudes, emphasizing instead how judges may deviate from their direct preferences for strategic gain.' This literature has moved judicial politics scholars' object of study toward that of law. While the fields are coming together, a gap persists, one that we believe social choice is uniquely suited to bridge.

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