I want to thank the Editors ELS blog for having me as a guest blogger this week. I appreciate the opportunity to talk about research and methods issues as they relate to my research and to our field more generally.
Today I would like to discuss the use of archival data sources to analyze judicial decision making. A good many scholars have used, or are now using, archival data -- in particular from the private papers left by retired Supreme Court justices. These papers have provided both qualitative and quantitative data that has helped us better understand the inner workings and decision making process of the U.S. Supreme Court. Such work, however, has not always been the norm.
Since the advent of the behavioral revolation with with Pritchett's analysis of the Roosevelt Court scholars have used data that is easy to locate -- namely the final votes Supreme Court justices or lower court judges cast -- to explain the decisions they make. More importantly, these data have ben widely used to predict future behavior. Clearly, through the Supreme Court and the Attitudinal Model Revisited such data have been vitally important to our field.
However, a group of scholars in the past 25 years have turned to an even richer source of data to get a grasp on judicial behavior at the U.S. Supreme Court. Following the lead of Walter Murphy in Elements of Judcial Strategy this group has conducted extensive analyses of the private papers of former Supreme Court justices. Such work has taught us a great deal about the Court's agenda setting process, its oral arguments, conference discussions, and the bargaining and accomodation process that leads to a final opinion that sets legal policy.
Both Marie Provine (Case Selection in the United States Supreme Court, Chicago: University of
Chicago Press, 1980), and Jan Palmer's work on the Court's agenda setting process relied heavily on these papers as well as justices docket books. As he notes, "The primary sources used to gather the dataset are the docket books of Burton, Douglas, Clark, and Reed. The secondary sources are the docket books of Murphy, Jackson, and Frankfurter and the conference lists of Rutledge, Burton, Douglas, and Clark. The tertiary sources include case files, cert and bench memos, and conference notes of Vinson, Reed, Douglas, Clark, Burton, and Rutledge" (Palmer 1990, 42). More recent work analyzes Justice Blackmun's docket sheets and memos from the cert. pool in an effort to better understand the degree to which clerks influence the cases the Court will hear.
My own work -- which focuses on how oral arguments at the Court affects justices' decisions -- also makes extensive use of these rich archival data. For instance, Jim Spriggs, Paul Wahlbeck, and I find evidence from notes Justice Blackmun took during oral arguments that the quality of advocacy can and does affect how justices decide. For a copy of this paper, click here. This argument is based on grades that Blackmun gave to almost every attorney who appeared at the Court during his tenure.
Others have also used the justices papers to analyze conference and the opinion writing stage. For instance, Epstein and Shvetsova (2002) use the papers to analyze how justices may add issues to the agenda to reach outcomes that are more favorable for them. Similarly, Spriggs, Wahlbeck, and I show how the Chief Justice may pass on his opporunity to vote at conference to manipulate the outcome of a case.
Finally, among other work, two excellent books use the justices papers to analyze how the opinion writing and bargaining process affects Court decisions. In Choices Justices Make, Epstein and Knight (1998) use the papers to show that justices act strategically with one another as they move towards a final decision on the merits. Additonally, Maltzman, Spriggs, and Wahlbeck (2000) use papers from Justice Brennan, Powell, Marshall, and Douglas to quantitatively test how the bargaining and accomodation process affects justices' final decisions.
The point I want to make today is simply this -- there is much fine work in our field that uses archival data to explain and predict political behavior. We need to continue to think about how we can use such data -- as well as data from lower courts -- to study more parts of judicial decision making than simply final votes. As Nancy Kassop (1993) put it, "A case is more than its outcome, and the parts that came before deserve some attention for the role they played in contributing to the final result."