The Constraint of Law

• DOI: 10.1177/1532673X06296991
• Date: 01 September 2007
• Published date: 01 September 2007
• Subject Matter: Articles

American Politics Research

Volume 35 Number 5

September 2007 755-768

© 2007 Sage Publications

10.1177/1532673X06296991

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755

Authors’Note: The authors thank Barry Friedman for excellent revision suggestions, the NSF

for its support of the research (SES-9910535 and SBR-9911054), and the anonymous reviewers

for their suggestions.

The Constraint of Law

A Study of Supreme Court Dissensus

Sara C. Benesh

University of Wisconsin–Milwaukee

Harold J. Spaeth

Michigan State University

To study the behavior of judges, one must first consider whether judges are

just like any other political actor (e.g., legislators) or whether, because of

their affiliation with the judiciary, law constrains their behavior to some

extent. Research aimed at considering the extent to which judges are

constrained by the law is sparse, and conclusions resulting from such

research are mixed. In this article, the authors explore the extent to which law

constrains judges by focusing on the decision to dissent rather than concur

when Supreme Court justices write separately. The authors find that,

although law matters, it does not constrain.

Keywords: Supreme Court; federal courts; judicial behavior; law; dissenting

opinions; judicial preferences

Shepsle and Bonchek (1997) assert that “judges...may be thought

of, essentially, as legislators in robes” (p. 418). Similarly, though far

earlier, Justice Cardozo (1921) said, approvingly, “Everywhere there is a

growing emphasis on the analogy between the function of the judge and the

function of the legislator” (p. 119). To study the behavior of judges, one

must first consider whether judges are, in fact and as asserted, just like any

other political actor (e.g., legislators) or whether, because of their affiliation

with the judiciary, and their training as lawyers, law might constrain their

behavior, at least to some extent.

We certainly expect judges to be different. Indeed, Americans generally

buy into the trappings of judicial impartiality and majesty (Segal & Spaeth,

2002). Judges wear robes, they work in buildings built to resemble places of

worship, they are seated above anyone else in a courtroom, we rise when they