I received this request yesterday from Bill Henderson, one of the ELS editors: “Since our audience is not entirely law and courts people familiar with the attitudinalist literature, I was wondering if you would consider a blog entry that summarizes the central findings of your work with Spaeth and the various critiques that have arisen in response.”
For those who want the full treatment, the best single source on this is probably The Supreme Court and the Attitudinal Model Revisited (hereafter SCAMR) But for those seeking a quick summary, here goes.
The attitudinal model holds that judges decide cases in light of their sincere ideological values juxtaposed against the factual stimuli presented by the case. Thus, for example, as searches by the police grows more intrusive, first liberal, then moderate, and then conservative judges should become increasingly likely to reject the search.
Numerous behavioral implications devolve from this model. At the case level, a court’s decisions should depend on the factual stimuli in the case. This implication is consistent with, but not unique to, the attitudinal model. At the judge level, differences in judges’ attitudes should influence aggregate levels of their ideological voting. Additionally, at the case-judge level, the votes of particular judges in particular cases should depend on the interaction between the case stimuli and the judges’ attitudes.
While attitudes undoubtedly play a large role throughout the realm of judicial decision making, the likelihood of judges behaving consistently with the attitudinal model will depend on institutional incentives and disincentives for attitudinal behavior. It should be at its highest at the U.S. Supreme Court, which sits at the top of the judicial hierarchy (and thus cannot be overruled by higher courts), which has docket control (and thus can weed out legally frivolous cases that no self-respecting judge could decide only on her ideology), and whose judges have life tenure (and need not fear for job security), and lack ambition for higher office (and thus have little incentive to placate others).
Consistent with the model, I have found that case stimuli readily explains the votes of the Supreme Court in search and seizure cases (1984 American Political Science Review), while others have replicated case-stimuli findings across a variety of different issue areas. As noted, though, such results are consistent with both attitudinal and other models of judicial decisions.
At the judge level, using an exogenous (i.e., independent) measure of the justices’ ideology -- one derived from editorials on the nominees subsequent to their nomination but prior to their confirmation -- I find a strong relationship between their ideology and the liberalism of their aggregate voting behavior once on the Court (r = .78) (updated from Segal and Cover 1989 APSR).
Finally, as for the juxtaposition between the justices’ ideology and case stimuli, the model well predicts the Court’s search and seizure decisions, where the combination of the justices’ attitudes and a series of case stimuli leads to a model that predicts 71% of the justices’ votes correctly.
One set of criticisms of this work came from rational choice theorists, who argue that the justices cannot vote their sincere preferences because they must be concerned about getting overturned by Congress. Pablo Spiller has provided the best systematic empirical support for this position, but there are problems with his analyses (see SCAMR, ch. 8). To be fair, though, I also made some mistakes in my initial foray into this area.
Recent work suggests that the impact of attitudes may not be homogenous across cases. See the recently published article by Isaac Unah and Ange-Marie Hancock, and a sophisticated multi-level modeling manuscript by Brandon Bartels.
Other critics of the original Supreme Court and the Attitudinal Model correctly contended that while we may have demonstrated the important role that attitudes play, our critique of the limited role of law at the Supreme Court was, at best, anecdotal. At the time, Spaeth and I argued that the impact of law could not be tested systematically because “the various modes of legal decision making cannot be operationalized evenhandedly.” I think we spoke too soon.
In an attempt to take our critics seriously, Spaeth and I examined the influence of precedent on Supreme Court decision making, using as our starting point the notion by Judge Jerome Frank that "Stare decisis has no bite when it means merely that a court adheres to a precedent that it considers correct. It is significant only when a court feels constrained to stick to a former ruling although the court has come to regard it as unwise or unjust" (United States v. Shaughnessy 1955, p. 719). Thus, when Justice Stewart reversed himself and accepted the right to privacy in Eisenstadt v. Baird (1972), we have a prima facie case that the justice was influenced by the precedent established in Griswold. Tests using this standard find that stare decisis influences the decisions of Supreme Court justices only about 10% of the time (though more than that, as predicted, in the least salient of the Court’s cases). We did not expect to see a mechanical or deterministic response to such precedents, but rather, some meaningful level of gravitational movement toward the position established in the precedent, and that we did not find. The article version of this project (Segal and Spaeth 1996 American Journal of Political Science) resulted in a forum on the issue that attracted interesting responses by Lee Epstein, Stefanie Lindquist and several others. The book drew an extended and typically thoughtful response from Howard Gillman in Law and Social Inquiry (Spring 2001). Howard proposed a postpositive meaning of law that requires only the subjective belief of the judge that s/he is acting in good faith. Whether such a requirement is falsifiable or not remains to be seen. But even if we could use ethnographic methods to truly know the mindset of the judge, the universal human characteristic of motivated reasoning, that is, the ability to convince ourselves of that which we wish to believe (in addition to Eileen Braman’s work on this in the 2006 Journal of Politics, Milt Lodge and Chuck Taber have an article on this in the July 2006 American Journal of Political Science), makes this far too low a hurdle for virtually anyone to get tripped up by.