APA Newsletters
Fall 1999
Volume 99, Number 1

Abstracts:
Recent Law Review Articles of Interest

Cross, Frank B. "The Justices of Strategy," Duke Law Journal 48 (1998): 511–570

Ostensibly a book review devoted to Epstein & Knight, The Choices Justices Make, the recipient of the 1998 Hermann Pritchett Award, the American Political Science Association’s accolade for the best book published on law and the courts, Cross’s article is really a full-blown law review essay which also uses Lazarus, Closed Chambers (see "Books of Interest" section for both references) as a point of departure for discussing an entire school of legal research known as "Positive Political Theory" (PPT). Both books embrace the thesis that appellate judicial decisions are governed entirely by political strategy in pursuit of the ideological policy objectives of individual judges. While Cross regards the Epstein & Knight study in particular as a useful countermeasure to what he calls the "naive view of sincere legal decisionmakers" under which conventional doctrinal analysis is regarded as the most appropriate way to explain the content of judicial decisions, Cross takes an intermediate position, rejecting Epstein’s & Knight’s view that, in the face of ideological concerns, the law has no significance in and of itself.

In the course of developing his intermediate view, Cross discusses a variety of political strategies covered in Epstein & Knight, in Lazarus, and in earlier work in this territory (e.g., Bernard Schwartz, Decision: How the Supreme Court Decides Cases (1996); James F. Simon, The Center Holds: The Power Struggle Inside the Rehnquist Court (1995); Bob Woodward & Scott Armstrong, The Brethren (1979); and various articles by William Eskridge, Emerson Tiller, McNollgast, and Cross himself). Included among these strategies are "aggressive grants" and "defensive denials" of certiorari, the first in cases that may not justify review, but which the granting judges hope to use to develop judicial doctrine in a direction they favor, and the second to avoid confrontations with an unfriendly court majority which might dismantle some favored precedent. Using the development of the intermediate scrutiny standard in Craig v Boren as one example (among others), Cross also reviews Epstein’s & Knight’s discussion of the strategies behind assignment of opinion authorship, and those of coalition building and compromise in the writing of opinions.