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How do Supreme Court justices decide their cases? Do they follow their policy preferences? Or are they constrained by the law and by other political actors? The Constrained Court combines new theoretical insights and extensive data analysis to show that law and politics together shape the behavior of justices on the Supreme Court. Michael Bailey and Forrest Maltzman show how two types of constraints have influenced the decision making of the modern Court. First, Bailey and Maltzman document that important legal doctrines, such as respect for precedents, have influenced every justice since 1950. The authors find considerable variation in how these doctrines affect each justice, variation due in part to the differing experiences justices have brought to the bench. Second, Bailey and Maltzman show that justices are constrained by political factors. Justices are not isolated from what happens in the legislative and executive branches, and instead respond in predictable ways to changes in the preferences of Congress and the president. The Constrained Court shatters the myth that justices are unconstrained actors who pursue their personal policy preferences at all costs. By showing how law and politics interact in the construction of American law, this book sheds new light on the unique role that the Supreme Court plays in the constitutional order.

We reasoned that the state's asserted interest ''in preserving the flag as a symbol of nationhood and national unity,'' was an interest ''related 'to the suppression of free expression' within the meaning of O'Brien'' because the state's concern with protecting the flag's symbolic meaning is implicated ''only when a person's treatment of the flag communicates some message.'' We therefore subjected the statute to '' 'the most exacting scrutiny,' '' quoting Boos v. Barry, (1988), and we concluded that the state's asserted interests could not justify the infringement on the demonstrator's First Amendment rights. Moreover, the precise language of the Act's prohibitions confirms Congress's interest in the communicative impact of flag destruction. The Act criminalizes the conduct of anyone who ''knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag.'' Each of the specified terms - with the possible exception of ''burns'' - unmistakably connotes disrespectful treatment of the flag and suggests a focus on those acts likely to damage the flag's symbolic value. And the explicit exemption in Sec. 700(a)(2) for disposal of ''worn or soiled'' flags protects certain acts traditionally associated with patriotic respect for the flag. Although Congress cast the Flag Protection Act in somewhat broader terms than the Texas statute at issue in [Johnson], the Act still suffers from the same fundamental flaw: it suppresses expression out of concern for its likely communicative impact. Despite the Act's wider scope, its restriction on expression cannot be '' 'justified without reference to the content of the regulated speech.' '' Boos,; see Spence v. Washington, (1974) (State's interest in protecting flag's symbolic value is directly related to suppression of expression and thus O'Brien test is inapplicable even where statute declared ''simply . . . that nothing may be affixed to or superimposed on a United States flag''). the Act therefore must be subjected to ''the most exacting scrutiny,'' Boos, and for the reasons stated in Johnson, the Government's interest cannot justify its infringement on first Amendment rights. We decline the Government's invitation to reassess this conclusion in light of Congress's recent recognition of a purported ''national consensus'' favoring a prohibition on flag-burning. Even assuming such a consensus exists, any suggestion that the Government's interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment.

The justices could uphold it only if a majority agreed that Congress really had made the law ''content-neutral'' - that is, that the statute prevents defacing the flag without reference to whether the act of defacement was an expression of opinion. While listening to the issue being argued before the Court this week, Justice Scalia demolished the content-neutral argument. People who burn the flag, he pointed out, certainly do express an opinion: ''They're saying, 'We hate the United States.' '' That is the ''bedrock principle'' that President [Bush] proposes to eliminate from the Constitution. But the Bush Amendment's passage is only a future possibility; the flawed Flag Protection Act is already a law. For that reason, those who believe the First Amendment should be left alone to play its traditional role of protecting freedom of speech, freedom of religion and freedom of assembly have no real choice but to hope the Court overturns the act - just as it struck down the Texas flag-burning legislation.