The Dog That Did Not Bark: Debunking the Myths Surrounding the Attitudinal Model of Supreme Court Decision Making

Article excerpt

According to the Attitudinal Model, justices on the United States Supreme Court decide cases based solely on their political preferences. Law and precedent, these advocates say, provide no constraint. If the Attitudinal Model is an adequate explanation of judicial behavior, then the justices should overturn any precedents that were inconsistent with their policy preferences. However, an examination of Supreme Court treatment of 120 liberal precedents of the Warren Court finds that subsequent conservative courts failed to overturn a large majority of these precedents even after the political preferences of the Court favored overturning those precedents. This finding raises serious questions about the adequacy of the Attitudinal Model.

According to the most prominent proponents of the Attitudinal Model, justices on the United States Supreme Court decide cases based solely on their political preferences and ideology. Law and precedent, these advocates say, provide no more than convenient rationalizations. Justices are free to vote their personal preferences because of a set of institutional features that are not found on other courts in the United States. The focus of the analysis presented below is whether the Attitudinal Model, as explicated by Schubert (1965) and Segal and Spaeth (1993, 2002) does, in fact, provide a sufficient explanation of the behavior of justices on the Supreme Court.

At this point, there is little doubt that the political attitudes and ideology of the justices on the United States Supreme Court have a substantial effect on many of the outcomes adopted by the Court and on the votes of individual justices (Roy and Songer, 2010). The evidence in support of the proposition that the political values of the justices have a significant effect on many Supreme Court decisions is extensive (e.g., Pritchett, 1948; Schubert, 1965; Rohde and Spaeth, 1976; Spaeth, 1979; Tate, 1981; Segal and Cover, 1989; Segal and Spaeth, 1993, 2002; Spaeth and Segal, 1999; Maltzman, Spriggs, and Wahlbeck, 2000; Hansford and Spriggs, 2006). The myth of the Attitudinal Model is jumping from this well-established fact to the conclusion that the Attitudinal Model is a complete explanation of Supreme Court decision making. Thus, the debate now seems to focus on whether the claim of Segal and Spaeth (1993:11) that attitudes comprise "a complete and adequate model of Supreme Court's decisions on the merits" is supported by the evidence (Kritzer, Pickerill, and Richards, 1998). While not all scholars accept the absolute position asserted by Segal and Spaeth for the primacy of judicial attitudes (e.g., see Richards and Kritzer, 2002; Songer and Lindquist, 1996; Brenner and Stier, 1996), prominent support remains for the proposition that the political attitudes of the justices are the most important influence on the votes of the justices in almost all cases (see Segal and Cover, 1989; Robertson, 1982, 1998; Segal and Spaeth, 2002). Because of its continuing prominent place in debates about judicial behavior, these claims about the Attitudinal Model are the focus of the analysis below. Specifically, we test whether the Attitudinal Model, as explained by its most forceful advocates like Segal, Spaeth, Schubert, and Robertson, provides a complete explanation of the voting behavior of the justices on the United States Supreme Court. Following the admonitions of King, Keohane, and Verba (1994) and Babbie (2004) about the appropriate way to examine the utility of a theory, the Attitudinal Model is used in the analysis below to derive empirically observable implications that should follow if political attitudes do, in fact, constitute a complete explanation of the decisions on the Supreme Court. Tests of these hypotheses are then evaluated to determine the extent to which attitudinal explanations provide a sufficient explanation of the behavior of the justices.

THE ATTITUDINAL MODEL OF SUPREME COURT DECISION MAKING

The role of ideology in the decision making of the Supreme Court has been a recurring theme in the writing of empirical scholars studying the Supreme Court. …