Loading field map
How do judges decide cases, and what role does law play in shaping political power? These two questions have driven the subfield of public law and judicial politics for more than a century. At first, scholars assumed that legal reasoning alone could explain judicial outcomes. That assumption soon came under pressure from empirical researchers who insisted that judges were political actors with personal preferences. Later waves of scholarship argued that neither formal rules nor individual attitudes were enough: institutions, strategic calculations, social context, and historical legacies all mattered. The result is a field that today houses several active frameworks, each with a different answer to the same core puzzle.
For the first half of the twentieth century, the dominant framework was Legal Formalism. Formalists treated law as a self-contained system of rules and principles. A judge’s job, on this view, was to apply the relevant rule to the facts of the case through logical deduction. The law itself—not the judge’s politics, not the pressures of the moment—determined the outcome. Formalism gave the subfield a clear object of study: the internal logic of legal doctrine. But it also made the field resistant to empirical inquiry. If legal reasoning was autonomous, there was little reason to study judges as people or courts as political institutions.
By the 1950s, a growing number of political scientists found Formalism unsatisfying. They wanted to treat judicial behavior the way other political scientists treated voting or legislative bargaining: as something measurable and patterned. The Attitudinal Model, developed most fully by scholars such as Glendon Schubert and later Jeffrey Segal and Harold Spaeth, offered a direct challenge. Its central claim was that United States Supreme Court justices decide cases based on their personal ideological attitudes and values, not on legal doctrine. The model drew on psychological attitude theory and used votes in earlier cases to predict later votes. It replaced the formalist image of the judge-as-logician with the judge-as-policymaker.
The Attitudinal Model transformed the subfield by making judicial behavior a legitimate subject of empirical political science. Yet it also narrowed the field’s focus. It worked best for the U.S. Supreme Court, where justices have life tenure and strong agenda control. It said little about lower courts, about courts in other countries, or about the role of law in shaping social life beyond individual decisions.
Almost simultaneously with the Attitudinal Model, a very different tradition was taking shape. The Law and Society movement, emerging in the 1960s, refused to treat courts as the center of the story. Instead, it asked how law operates in everyday life—in neighborhoods, workplaces, families, and administrative agencies. Law and Society scholars drew on sociology, anthropology, and history to study legal consciousness, the gap between law-on-the-books and law-in-action, and the ways ordinary people use (or avoid) legal institutions. This framework did not directly compete with the Attitudinal Model so much as it addressed a different set of questions. Where the Attitudinal Model asked why judges vote as they do, Law and Society asked what law does in society and how legal meanings are produced and contested.
Law and Society provided an intellectual foundation for later critical frameworks. By showing that law was not a neutral technical system but a social practice embedded in power relations, it opened space for more explicitly political critiques.
Two frameworks that grew partly from Law and Society’s soil were Critical Race Theory (CRT) and Feminist Jurisprudence, both emerging in the 1980s. CRT argued that racism is not an aberration in American law but a structural feature that legal doctrine routinely reproduces. Legal neutrality, from this perspective, is an illusion that masks the ways law upholds white supremacy. Feminist Jurisprudence made a parallel argument about gender: law’s supposedly universal categories (the reasonable person, the private sphere, the autonomous individual) are in fact male-centered and disadvantage women. Both frameworks rejected the formalist claim that law can be separated from politics. They also pushed beyond the Attitudinal Model’s focus on individual preferences, insisting that legal outcomes reflect deeper structures of racial and gender hierarchy.
These critical frameworks remain active today. They coexist with other approaches, often in productive tension. CRT and Feminist Jurisprudence are strongest in legal scholarship and in qualitative sociolegal studies; they have less presence in the quantitative behavioral tradition, where their methods and assumptions are harder to integrate.
By the 1980s, a new set of frameworks was responding to the limits of the Attitudinal Model from a different direction. New Institutionalism brought attention back to the rules, procedures, and organizational contexts that shape judicial behavior. Where the Attitudinal Model saw preferences as the sole driver, New Institutionalism argued that institutions—such as the norm of stare decisis, the structure of the judicial hierarchy, or the appointment process—constrain and channel those preferences. This was not a return to Formalism. Institutions were not treated as logical deductions from legal principles but as human-made structures that could be studied empirically.
Rational Choice theory, also rising in the 1980s, applied economic models of strategic behavior to judicial politics. Judges, on this view, are rational actors pursuing goals (policy, prestige, influence) within institutional constraints. The Strategic Model, a direct application of Rational Choice to courts, argued that judges anticipate the reactions of other actors—colleagues on the bench, legislators, executives, the public—and adjust their decisions accordingly. A justice who prefers a liberal outcome may vote for a more moderate position if a conservative reversal seems likely. This framework directly challenged the Attitudinal Model’s assumption that judges simply vote their sincere preferences. The Strategic Model did not replace the Attitudinal Model; the two remain in active disagreement. Attitudinal scholars point to strong correlations between ideology and votes; strategic scholars argue that those correlations mask sophisticated anticipation.
New Institutionalism, Rational Choice, and the Strategic Model are closely related but not identical. New Institutionalism is the broader umbrella, encompassing both rational-choice institutionalism and historical or sociological variants. Rational Choice provides the microfoundations for the Strategic Model, but it also applies to other political actors (legislators, bureaucrats) and to the design of legal rules. The Strategic Model is narrower: it is Rational Choice applied specifically to judicial decision-making in a separation-of-powers context.
For most of the twentieth century, the subfield was overwhelmingly focused on the United States, especially the Supreme Court. The 1990s brought a deliberate expansion. Comparative Judicial Politics asked whether frameworks developed for the U.S. could travel to other legal systems. It studied constitutional courts in Europe, Latin America, Asia, and Africa, examining how different institutional designs (appointment procedures, terms of office, powers of review) produce different patterns of judicial behavior. Comparative work quickly revealed that the Attitudinal Model’s assumption of sincere preference voting works poorly where judges face reappointment, where courts share power with other institutions, or where legal traditions differ from American common law.
Historical Institutionalism, also emerging in the 1990s, added a temporal dimension. It asked how legal institutions develop over time, how past decisions create path dependencies, and how critical junctures (such as a constitutional founding or a judicial reform) shape later possibilities. Historical Institutionalism shares New Institutionalism’s interest in rules and contexts but emphasizes change and contingency rather than equilibrium. It has been especially useful for studying the long-term evolution of judicial power and the relationship between courts and political regimes.
Today, no single framework dominates the subfield. The Attitudinal Model remains influential for studying the U.S. Supreme Court, especially in large-N quantitative work. The Strategic Model has become the default alternative, particularly in studies of lower courts and interbranch relations. New Institutionalism and Historical Institutionalism guide research on court design, judicial reform, and institutional change. Comparative Judicial Politics has made the subfield genuinely global, testing old theories in new settings and generating new ones. Law and Society, Critical Race Theory, and Feminist Jurisprudence continue to push the field to consider law’s social operation and its role in sustaining inequality.
What do these frameworks agree on? Most contemporary scholars accept that judicial decisions cannot be explained by legal doctrine alone. The formalist assumption of autonomous legal reasoning is largely abandoned. There is also broad agreement that institutions matter: the rules structuring courts, the procedures for appointing judges, and the broader political environment all shape outcomes.
Where they disagree is on what matters most. Attitudinal scholars emphasize the primacy of personal ideology. Strategic scholars insist that ideology is mediated by anticipation and constraint. New Institutionalists point to the independent causal force of rules and norms. Critical scholars argue that the deepest drivers are structural hierarchies of race, gender, and class. These disagreements are not signs of weakness. They reflect the subfield’s maturation into a pluralistic conversation, where different frameworks illuminate different parts of a complex reality: how law is made, how it is applied, and how it shapes—and is shaped by—political power.