I am not the first to consider the sources of Supreme Court decisions. Is my approach an arbitrary personal predilection drawn entirely from my anecdotal recollections? Or can I justify it as a contribution to the disparate efforts in the literature that explains Supreme Court decision making? The purpose of this chapter is to put the case studies in context by exploring existing academic approaches to Supreme Court decision making and relating them to the framework I use for understanding the Court's bankruptcy jurisprudence.

For analytical purposes, I perceive much of the existing literature as starting from one or the other of two polar opposites: the legal perspective that the statutory law for the most part controls decisions; or the political-science perspective that the political predilections of the Justices for the most part control decisions. However interesting that controversy might be, it is largely off to the side of the work I present here. Because this work emphasizes influences that are neither strictly legal nor strictly attitudinal, it is in tension with both of those perspectives. But that tension is of little importance, because this project does not aim to reassess those perspectives. My goal is not so much to understand what types of information are more (or most) important to the Justices, but rather to understand the sources of the information on which they rely. The existing literature is important to my inquiry – I cannot understand how Justices obtain the relevant information without understanding what information is likely to be important to them. But it is important primarily as the background against which I write; I have no need to stake out any particular position on the major issues that previous scholars have analyzed so divisively. Because my strategy is to isolate the cases in which neither legal nor policy information is likely to be immediately dispositive, the relative weight that the Justices give the different types of information is much less important than the basic idea that their decisions rest on various types of information not immediately apparent even to a trained observer.

THE POLITICAL-SCIENCE PERSPECTIVE: FROM “ATTITUDINAL” TO “CONSTRAINED” DECISIONMAKING

The idea that something external to the legal materials plays an important part in Supreme Court decision making is an old one. It has been a dominant theme in political-science literature on the subject since the 1940s work of Herman Pritchett.