In this study, we assess the impact of attitudinal and jurisprudential factors on the Supreme Court's resolution of intercircuit conflicts. In doing so, we depart from earlier efforts to assess the impact of legal factors that conceptualize law as an external constraint. Instead, we view jurisprudential considerations in terms of the justices' efforts to adopt the most legally persuasive position in light of accepted methods of legal reasoning. Our analyses reveal that the justices are (1) more likely to follow the reasoning process adopted by the majority of circuits involved in the conflict, (2) less likely to adopt the conflict position marred by contrary dissents and concurrences in the circuit court opinions, and (3) more likely to adopt the conflict position endorsed by prestigious circuit court judges. Our findings suggest that jurisprudential considerations, as well as attitudinal concerns, affect the justices' decisionmaking processes in a substantial minority of cases.
Introduction: Attitudinal and Jurisprudential Influences on the Judicial Choice
As a powerful policymaking body composed of unelected officials, the U.S. Supreme Court occupies a somewhat anomalous position in a representative democracy. One of the Court's most important claims to legitimacy is the proposition that its decisions are not determined solely by the justices' personal policy preferences but are influenced as well by their understandings of what "the law" requires in a given case. With so much riding on this proposition, scholars have debated it, often passionately, for years.
At this point, the position frequently labeled "attitudinalist," holding that policy preferences overwhelm legal considerations in justices' decisions, seems dominant among quantitatively oriented scholars-and reasonably so. Not only are there firm logical grounds to doubt that precedents, statutory language, and methods of constitutional interpretation guide decisions in the extraordinary environment of the Supreme Court, but while evidence of attitudinal influences has accumulated steadily over the years, evidence of legal influences has been much harder to find. Nevertheless, many scholars continue to maintain that, even in the Supreme Court, the law matters, and "it matters dearly" (Epstein & Kobylka 1992:302; see also Smith 1994; Gillman 2001; Richards & Kritzer 2002).
We agree that the question of the law's influence is still open. Like proponents of the attitudinal model-and many other scholars-we doubt that the law often provides immutable, "right" answers to legal questions or somehow determines the outcomes of cases. Nevertheless, we suspect that justices often engage in goodfaith efforts to find the most persuasive solutions to complex legal puzzles. Our aim in this study is to contribute to the law-versus-attitudes debate by reformulating the central research question and introducing a new body of evidence to address it. We ask not whether justices' decisions are traceable to specific legal texts, but whether the justices are influenced by a desire to make legally sound decisions through what they see as proper methods. We do not seek direct connections between their decisions and such manifestations of the law as statutory or constitutional language, canons of construction, or precedents. Instead, we investigate relationships between their decisions and the behavior and characteristics of other actors in the judicial process.
We proceed by examining cases decided in the 1985 through 1995 terms in which the Supreme Court resolved conflicts among the circuits. We chose to examine conflict cases for several reasons. First, as we explain below, if jurisprudential considerations play any role in the justices' decisions, they are especially likely to be evident in conflict cases. In addition, conflict cases constitute a significant portion of the Court's outputs-about one-third of its docket in any given year. And because conflict cases involve a preexisting struggle among competing legal perspectives in the circuit courts, we can specify variables that reflect jurisprudential influences and assess the impact of those variables on Supreme Court decisionmaking. …