FEW CASES BETTER DEMONSTRATE the limits of the attitudinal model than Texas v. Johnson (1989). The case originated when Gregory Lee Johnson burned an American flag outside the 1984 Republican National Convention in Dallas. He was arrested and convicted for vandalizing a respected object, but the Texas Court of Criminal Appeals overturned the conviction on First Amendment grounds. The case went to the U.S. Supreme Court where Justice Brennan wrote a majority opinion that upheld the lower court’s decision, thereby freeing Johnson.
The outcome was not what was puzzling from the attitudinal model perspective; the voting alignment of the justices was. Justices on the left (Blackmun and Marshall), middle (Kennedy), and right (Scalia) supported Brennan’s majority opinion, while justices on the left (Stevens), middle (O’Connor and White), and right (Rehnquist) dissented. How can we explain such a breakdown in standard ideological voting? Why, on a 5–4 vote, would the winning coalition be made up of individuals from across the bench’s ideological spectrum?
One clue is from the justices themselves. In his concurrence with the Brennan opinion, Justice Kennedy wrote:
For we are presented with a clear and simple statute to be judged
against a pure command of the Constitution. The outcome can be
laid at no door but ours. The hard fact is that sometimes we must
make decisions we do not like. We make them because they are right,
right in the sense that the law and the Constitution, as we see them,
compel the result. And so great is our commitment to the process
that, except in the rare case, we do not pause to express distaste for
the result, perhaps for fear of undermining a valued principle that
dictates the decision. This is one of those rare cases.
Our findings reinforce Kennedy’s position. As anomalous as Texas v. Johnson is for the attitudinal model, it is completely consistent with a legal values story. In particular, a model in which justices vote in accord with their legal attachment to the First Amendment can explain the voting very well. Table 8.1 shows this by sorting the justices who participated in Texas v. Johnson by the extent that we reported they were constrained by “free speech” in Figure 4.4. We have shaded the five justices.