The Context of Ideology: Law, Politics, and Empirical Legal Scholarship
Shapiro, Carolyn, Missouri Law Review
I. INTRODUCTION II. CODING CASE IDEOLOGY III. OUTCOME CODING A. How It Works and How It Doesn't 1. The Supreme Court Database. 2. Challenging the Database's Issue and Ideology Codes B. The Recoding Project 1. Quantitative Analysis Table 1: Ideology Coding for 95-Case Sample in U.S. Supreme Court Database and Recoding Project Table 2: Factors Tested for Effect on Likelihood of Mixed Ideology in Recoded Cases 2. Qualitative Analysis IV. BEHAVIORAL CODING A. A First Approach B. A Refinement: Identifying When There Are More Dimensions V. IDEOLOGICAL SALIENCE AND IDEOLOGICAL LEGITIMACY: A Way Forward? A. Defining Terms B. Is Measuring Ideological Salience Possible? 1. Possible Indicators of Ideological Salience a. Distance from the Court's Median b. Disordered Voting c. Vote Margin d. other Possible Variables 2. Challenges in Using the Indicators C. Learning from Ideological Salience VI. CONCLUSION APPENDIX A Cases in Recoding Sample (Chronological Order) APPENDIX B Cases in Recoding Sample by Ideological Salience
Does ideology have a role to play in the work of the Supreme Court? Chief Justice Roberts suggested that it does not when, during his confirmation hearings, he described the judicial role as one of a neutral umpire "call[ing] balls and strikes." (2) In Justice Sotomayor's more recent confirmation hearings, she partially accepted this metaphor (although she said it is an "imperfect" analogy) and consistently rejected the notion that, as a Supreme Court Justice, her personal experiences or perspectives would have a legitimate--or even an inevitable--role to play in her work. (3) These statements reflect a view--widely expressed in public debates over judicial confirmations--that law and legal reasoning can and will provide an objectively correct answer to even the most difficult cases if only the judge is willing to put aside his or her personal preferences and opinions--his or her ideology.
At the other extreme, the dominant model of Supreme Court decisionmaking in political science has long been the attitudinal model, which posits that the Justices' votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine. (4) More recent and nuanced attempts to describe judicial ideology --attempts that focus not on case outcomes (as the attitudinal model does) but rather on which Justices are in the majority and dissent in each case likewise fail to identify an explicit role for legal reasoning, precedent, or case facts. For these scholars, judging on the Supreme Court is presumptively about politics or ideology. (5)
Despite their limitations, these approaches to studying the ideology of Supreme Court cases and Justices are prominent in the burgeoning field of empirical legal scholarship in part because they are conducive to large-scale quantitative analysis. They also are good examples of two significant limitations of much empirical legal scholarship. First, as already mentioned, they at best ignore and at worst reject any role for law in Supreme Court judging. And second, they presume that the ideological nature of each case can be characterized along a single liberal-conservative dimension. As a result, these approaches generally offer no way to evaluate the possibility that a particular case might involve multiple issues or concerns that pull the Justices in different directions and that require them to balance competing interests and priorities.
As a result of these and other deficiencies, some might dismiss the project of quantitative analysis as, at best, too reductive to be useful, and indeed some legal academics have criticized empirical legal scholarship for such flaws. (6) This Article, however, proceeds from the premise that the tools of quantitative analysis can enrich the longstanding public and academic debates about ideology and judging by offering important information about what the Justices actually do. …