Further Insights
When the new approach was first applied to the judiciary, some scholars saw it as conflicting
with the attitudinalist school. Attitudinalists believe that judges achieve their
desired outcomes through sincerely voting their unconstrained policy preferences,
whereas new separation-of-powers scholars argue that those preferences are exercised
in the context of institutional constraints, and so judges strategically incorporate
the preferences of other relevant political actors (Segal 1997; Maltzman, Spriggs, and Wahlbeck 1999). However, the new approach provides the logical conclusion of
the attitudinalist insight: if there are any costs to the institutional repercussions of
pursuing unsustainable outcomes, such as being overturned by Congress, it would be
irrational for judges to pursue their preferences without accounting for the limits of
their policy-making capacity. Judges are unlikely to be so shortsighted in pursuing
their preferences.
Capturing the limits on the judical pursuit of their policy preferences allows the
new approach to improve on the explanatory power of the attitudinal model, as well
as to provide new theoretical insights in a number of different areas affecting the
judiciary’s relations with the other branchesScholars have shown how the president
and the Senate can each shape the ideological make-up of courts through strategic
use of the appointment power. Moraski and Shipan examined when the Senate’s
advice and consent role will be determinative: its power depends on the Senate’s
position relative to the president and the existing court median. Only when the Senate
is the moderate player does it have a direct influence on the confirmation process
(1999, 1077). Jacobi modeled the effect of senatorial courtesy on nominations, and
how confirmation outcomes depend on the configuration of preferences among the
president, the Senate median, and the home state senator. When the objecting home
state senator is the moderate player, the president can strategically draw the equilibrium
outcome closer to her preferences (2005, 209). Segal, Cameron, and Cover
showed that senatorial support for judicial nominees depends on the relative position
of their constituency and the nominee.
When both a senator and the nominee are to
the left or right of the median constituent, the senator is more likely to vote for the
nominee (1992, 111). New separation-of-powers analysis has illustrated how and when
the ideology of judicial nominees will vary with the ideology of other institutional
players.
Similarly, judicial agenda-setting literature has benefited greatly from the new
separation-of-powers analysis. This literature documents how judges partially circumvent
their institutional inability to initiate their own agendas. For example,
judges exercise certiorari voting strategically (e.g. Caldelra, Wright, and Zorn 1999),
considering both probable outcomes in deciding whether to grant certiorari (Boucher
and Segal 1995) and which cases will most influence lower courts, so as to maximize
the proportion of total decisions favorable to their policy preferences (Schubert 1962).
Epstein, Segal, and Victor (2002) showed that Supreme Court judges consider both
the internal level of heterogeneity of the court, as well as the position of the court
median relative to Congress, when deciding between accepting constitutional or
statutory interpretation cases.
Appointments and agenda-setting are just two areas that have benefited from the
new approach to traditional questions about judicial behavior, by looking beyond
the judiciary itself. Judges anticipate potential opposition to their decisions, and if
that opposition can be credibly exercised, they can be expected to adjust their actions
to avoid negative consequences.
Consequently, the positions of other institutional
actors constitute constraints on judicial decision-making. Incorporating these factors
allows for comparative statics, such that we can predict changes in judicial behavior, for example movements resulting from a change in the political administration. At
the same time, potential judicial action can constrain other actors: as long as courts
can impose costs on Congress, the president, or administrative agencies, those actors
can be expected to adjust their decisions to avoid such costs. The new separationof-
powers analysis provides a variety of mechanisms for formalizing and predicting
when these constraints will be active. As such, it both incorporates an understanding
of the judiciary into broader political analysis, and provides important tools and
insights to judicial specialists..
Prior to the 1970s, the study of bureaucracy was largely confined to historical,
normative, and behavioral analyses. With respect to the first, the dominant theory
focused on the independence of bureaucrats from other actors in the separationof-
powers system, effectively legitimizing and systemizin...
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For those working on more explicitly modeling the interaction between Congress and
the bureaucracy, the initial focus was on the variety of instruments that legislators
could avail themselves of to control the bureaucracy; and relatedly, the patterns of use
of these instruments we would expect to se...
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In a number of contexts, scholars have continued to focus on how each of the
institutional players interacts to explain bureaucratic behavior. To illustrate this development,
we focus on perhaps the primary example that integrates all institutional
actors—bureaucracy, presidents, Congress, and the...
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To this point we have focused on behavior within particular institutions, emphasizing
that explanations of most institutional behavior in American politics require
students to look outside the institution of interest. More generally, analysts may also
be interested not only in the behavior of any si...
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In contrast to parliamentary systems, the American separation-of-powers system prohibits
legislative parties from selecting the chief executive. Similarly, the US Constitution
explicitly prohibits congressmen from serving simultaneously in the executive.
The president cannot introduce legislation in...
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