Martin Shapiro: Anticipating the new institutionalism

I can imagine Martin Shapiro relaxing in his study with a glass of excellent California wine and opening Howard Gillman and Cornell Clayton's collection of essays, The Supreme Court in American Politics: New Institutionalist Interpretations (1999). Within a few minutes, he would be jumping up and down and shouting, "This is what I said thirty-five years ago!!!" And in fact, probably the best description of Shapiro's work, starting with his 1964 book (and the earlier articles that formed the basis of the book), Law and Politics in the Supreme Court, is that it anticipates what we today call new institutionalism. In anticipating the developments of the 1990s, Shapiro's work serves as a bridge, perhaps the key bridge, between traditional institutional analysis of the judicial branch and the work of the new institutionalists. His application of what he labels "political jurisprudence" draws heavily on the traditional institutionalist work of Corwin, Mason, and McCloskey (with whom Shapiro studied at Harvard) while taking that work in directions that have become the new institutionalism. His scholarship constitutes a significant contribution to institutional analysis along at least three different dimensions: understanding courts and court processes as institutions; understanding the institution of courts in the larger political system; and understanding the institutional functions of judicial norms. Shapiro's work starts with a focus on the American context but moves in a comparative direction starting in the mid-1970s. In the discussion that follows, I consider three interrelated strands of work: His definition of political jurisprudence and his early application of that concept to institutional analyses of the Supreme Court and administrative law; his efforts to apply political jurisprudence beyond the American context; and his theoretical analyses of the judicial norm of stare decisis. In this necessarily brief essay, I will neglect many areas of Shapiro's scholarship (e.g., his later work on administrative law and his most recent work on the European Court of Justice).