Introduction

What is judicial behavior? Jeffrey Segal, whose chapter starts this volume, has defined judicial behavior as

what courts and judges do. The extent to which judges choose to move beyond their policy preferences divides the field of law and politics. Normatively, influences over what judges ought to do include evaluating legal rules such as precedent or legislative intent in an attempt to find the best answers to cases before them. Thus, in addition to the judges’ own preferences, legal influences should be useful in explaining judicial behavior, though the extent to which it does undoubtedly varies throughout the judicial system. Judicial politics can be law or politics, but frequently it is both, with the mixture dependent on the type of court and the context of the case.

(Segal 2008) So, what do we know about judicial behavior? How do judges balance policy preferences, politics and the law? In 1997, Larry Baum, another contributor to this volume, wrote a seminal book entitled The Puzzle of Judicial Behavior, which summarized existing research. Baum’s premise was that scholars had made only limited development in understanding judicial behavior. The result was “only in small part from weaknesses of research in the field; … its primary source is inherent difficulties of explanation” (3). In his review of existing research, Baum tried to determine what existing scholarship had done and what it had not done, before concluding that although much progress has been made, ultimately the puzzle of judicial behavior remains unsolved and will always remain so despite the significant scholarly progress.