Academic journal article Justice System Journal

Does the Attitudinal Model Explain Unanimous Reversals?

Academic journal article Justice System Journal

Does the Attitudinal Model Explain Unanimous Reversals?

Article excerpt

There is little doubt that the political attitudes of the justices on the Supreme Court have a significant impact on many outcomes adopted by the Court. But a third or more of Supreme Court decisions are unanimous, and in more than a fifth of their cases every year the Supreme Court unanimously reverses the decision below. The Attitudinal Model suggests that the reason for unanimity is that the political policy made by the court below is "extreme" when compared to the ideological range of the entire Supreme Court. We test the basic claim of the most prominent proponents of the Attitudinal Model that the political preferences of the justices provide a complete explanation for all of their decisions, including those decided unanimously. We find that none of the predictions of the Attitudinal Model are supported. Thus, while the ideology of the justices may drive many of their decisions, the Attitudinal Model does not provide an adequate explanation for unanimous decisions.

Most of the empirical work on the decision making of justices on the Supreme Court has focused exclusively on the divided decisions of the Court. In contrast to this extensive body of research on divided decisions, the much more limited knowledge of unanimous decisions is troubling because such decisions constitute a sizable portion of all of the formal decisions of the Court. Over the past half century, the proportion of Supreme Court cases decided unanimously has been consistently high (see Figure 1). Specifically, for the 1953 through the 2005 terms of the Court, the proportion of unanimous decisions has ranged from a low of 28 percent to a high of 56 percent , with a mean of 39.9 percent of all formally decided opinions (see also, Hensley and Johnson, 1998; Spaeth, 1989).1 Of particular interest for the current analysis is that in almost every year, most of the unanimous decisions have involved the reversal of the decision of the court below with unanimous reversals making up between 20 percent and 30 percent of the Court's docket. Given such a large number of unanimous decisions, their exclusion from most empirical analyses of Supreme Court decision making is unfortunate because unanimous decisions are not easily explained by the currently dominant theories. In particular, it is difficult to believe that all nine justices will sincerely agree on the outcome of more than a third of their docket if the justices' political preferences have a major impact on their voting choice in most cases.

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. Instead, 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, 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 provides an adequate explanation of the unanimous decisions of the 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, explain unanimous decisions on the Supreme Court. …

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