4
assessing the breadth and mass of the rest of the phenomenon. What role do the Circuit
Courts of Appeals play in our political system? What are the conditions necessary for
Circuit Court independence from the Supreme Court, and what are the consequences of
Circuit Courts of Appeals independence from the High Court and the other branches of
government?
Legal scholars who focus primarily on doctrinal development but who do not
examine court behavior in immigration in its political or institutional contexts have
dominated the highly technical field of immigration law.
3
Perhaps due to the lack of
innovation in the doctrine at the Supreme Court level or perhaps due to the relatively
small number of immigration cases that reach the High Courts, political scientists have
virtually ignored this area of law. In this article, I demonstrate the long-term effects of
institutional norms and structures in shaping judicial behavior. The purpose of this article
is not to compare judicial behavior in immigration law to another area of law. Rather, the
goal is to examine vertically the federal judiciary and trace the evolution of the
immigration issues across time and across two levels of the courts. I argue that
institutions filter broader societal forces and dynamics in policy areas, channeling legal
outcomes in particular ways. Institutions have rules, norms, and structures that lead its
occupants to behave in ways they are not always aware of.
4
This process is not an
abstract or mysterious one, but one in which institutional contexts provide incentives and
disincentives for their occupants to behave in particular ways. More specifically, the
3
Two exceptions that come to mind are Lucy Salyer’s Laws and Harsh as Tigers and Stephen
Legomsky’s, Immigration and the Judiciary, Law and Politics in Britain and America. Both
books move beyond the doctrinal study of immigration law to analysis of some of the institutional
and external forces that shape this area of law.
4
In t project, I take an institutional analysis approach similar to Paul Frymer’s 1999 book Uneasy
Alliances: Race and Party Competition in America on political parties and their likelihood of
reaching out to African American voters.
Convention