During the first round of oral arguments in the 2000 Presidential election cases, the United States Supreme Court took part in a gripping discussion regarding the Florida Supreme Court's recent rulings on the counting of disputed presidential ballots. The central question in that discussion was whether the Florida court's interpretation of state election statutes was consistent with policy choices made by Florida's legislature before the election. During an exchange with Gore attorney Laurence Tribe, Justice Antonin Scalia drew one of the few laughs in the tense proceedings when he ridiculed Tribe's suggestion that Florida's legislature had wanted state courts to play an important role creating the boundaries for resolving post-election disputes. Scalia provoked the laughter by commenting: “I mean – maybe your experience with the legislative branch is different from mine, but in my experience they are resigned to the intervention of the courts, but have certainly never invited it.” In the face of the ensuing laughter, Tribe quickly backpedaled by expressing agreement with Scalia (“I have to say that my experience parallels that”) and attempting to change the subject. Unwilling to let the point drop, Scalia interrupted again to dismiss the suggestion that legislatures would want to give the courts policy-making responsibilities by saying, “I just find it implausible” (New York Times, December 2, 2000, A12).

This book makes an empirical inquiry into the processes through which federal judges and legislators make policies in the American constitutional system of separation of powers.