Marshall’s 4th Model of Supreme Court Decision Making

Almost this entire poem was a rewording [with rights] of Kyla Stepp’s, J.D., [and fellow Ph.D. student] propositional inventory paper on the Models of the Supreme Court. That [excellent] essay can be found HERE.

Align Left: Professor                              Center: Students                                     Right: Gadfly

  1. The professor looked forward,
  2. To this lecture all year.
  3. To her, it appeared;
  4. Research moves slumbered,
  5. For daring students,
  6. To steer.
  7. Would these bright students,
  8. See the new research moves,
  9. And make them clear?
  10. With eyes full of wit,
  11. And a little mischief,
  12.  The professor opened sincere:
  13. Why do Supreme Court justices,
  14.    Vote on cases the way they do?
  15. Does a dominant theory explain,
  16.    The actions of justices,
  17.    Or do multiple considerations
  18.       Come into play?
  19. Yes, really, you get to choose.
  20. Today, there are three models
  21.    Put forth by scholars,
  22.       To make plain the vote choice for you.
  23. They are: (1) The legal model,
  24.    (2) The attitudinal model, and,
  25.    (3) The rational choice model;
  26.            Let us investigate them in use.
  27. Let us survey the findings and arguments,
  28.    By the proponents of each model,
  29.       As well as the disputes which have arisen,
  30.          Between those proponents—providing us clues.
  31. Let us illuminate the limitations of the contents;
  32.    And expound the role of public opinion,
  33.      As an influence on the Court, as a wrench… or a fuse,
  34.        Let us discover the hues, coups, and research news.
  35. This was a quiet class,
  36. All seemed to have forgotten,
  37. Their Tim Hortons’ coffee glass.
  38. The “Legal Model” is the original explanatory theory,
  39.    Of judicial decision making.
  40. It dominates the discussion amongst lawyers,
  41.    And the legal community—the legal choir.
  42. Accordingly, case outcomes are determined,
  43.    By legal doctrine.
  44. This includes precedent, plain meaning, and,
  45.    The framers’ intent at adoption.
  46. ‘Tis true that S.C. justices are not legally bound by precedent,
  47.    Or stare decisis;
  48. Yet ‘tis precedent as a decision making mechanism,
  49.    Which enforces the stability and legitimacy,
  50.       Of the process and long-standing legal doctrine.
  51. Thus every lawyer’s legal education,
  52.    And hence, every judge;
  53. Stresses the role of precedent in legal reasoning,
  54.     As the decision making foundation.
  55. Finally some students’ minds,
  56. Of the discourse,
  57. Did rapidly unwind.
  58. Professor, look at the case law; indeed,
  59. Every case cites precedence,
  60. In the decision making decree!
  61. Prominent legal theorist and scholar, Ronald Dworkin,
  62.    Would agree.
  63. He stresses that stare decisis plays a vital role,
  64.    In judicial decision making and thinks:
  65.        Judges ignore their own personal beliefs,
  66.          In order to follow existing law and adhere,
  67.            To legal history.[1]
  68. Also, lower court judges almost always decide,
  69.    In favor of the legal model and the important role,
  70.      Of precedent—as a modus to justify,
  71.         The decision(s) for all parties to comply.[2]
  72. A witty one ascertained:
  73. What other model could reveal,
  74. Why the “Legal Model” decision making does yield,
  75. To another explanation over the years?
  76. Many in the political science community,
  77.    Feel the legal model is outdated and naïve.
  78. Caldeira, for example, can think of “no political scientists
  79.    Who would take plain meaning, intent of the framers, and precedent
  80.      As good explanations of what the justices do in making decisions.”[3]
  81.    Hear: the legal model is a “silly formalism” that “no one
  82.    Who has taken introduction to American government
  83.     Or read Marbury v. Madison or witnessed the fights
  84.      Over nominations to the Court during the Reagan
  85.        And Bush years is going to ascribe to…”[4]  Anyone here?
  86. Jay had something to say:
  87. Prior to the mid-1990s,
  88. Attacks on the legal model lacked,
  89. Systematic empirical findings.
  90. For scientists had to demonstrate,
  91. That legal factors are not significant
  92. In the Supreme Court decision making process.
  93. And what was the first and biggest blow,
  94.    To the legal model show?
  95. Jay continued:
  96. The “Attitudinal Model,”
  97. By Segal and Spaeth,[5]
  98. In 1996 sought the impact of precedent
  99. On the votes of Supreme Court justices.
  100. Yes, and how did they figure out,
  101.    When the legal model showcased doubt?
  102. Jay concluded:
  103. For precedent to actually impact a decision,
  104. Decision results would confirm precedence,
  105. When justices disagree with the decision
  106. Therefore ignoring self-attitudes,
  107. And simply confirming past decisions.
  108. Thus Segal and Spaeth looked at cases,
  109.  Where the justices’ preferred outcomes to say,
  110.   Were different from the precedent they would engage.
  111. They found that justices’ votes conformed to their own,
  112.  Their own revealed preferences 90.8% of the time, so;
  113.   A justice only 9.2% of the time to his/her attitude did disown.
  114. Rutledge interjected:
  115. More so, only two of the justices studied displayed,
  116. Any adherence to precedent at all,
  117. And these were Stewart and Powell,
  118. Says Segal and Spaeth.[6]
  119. Now Brisbin applauded that precedent was,
  120.   The explanatory variable for researching laws.
  121. Unfortunately, accordingly, the research had flaws,
  122.   In the conceptual decisions and conclusions, thus,
  123.     The legal model to still had claws.[7]
  124. Similarly, Songer and Lindquist,[8]
  125.   Reanalyzed the data using their own checklist;
  126.    i.e., Improved methodological measures to test.
  127. They discovered that a simple change,
  128.   In coding conventions made a substantial difference;
  129.   Verily, the proportion of votes via personal preferences,
  130.    Dropped from 90% to 70%–which was quite a big difference,
  131.       But still, for the attitudinal model, very significant.
  132. Ellsworth got in a word:
  133. Therefore precedent has a substantial influence,
  134. On the justices decisions.
  135. Spaeth and Segal (1999) revisited this debate,
  136.   In a comprehensive book…
  137. Majority Rule or Minority Will: Adherence to Precedence
  138.   On the U.S. Supreme Court.[9]
  139. They analyzed 2,425 votes cast over 341 cases,
  140.   From 1793 through 1990, spanning the history,
  141.    Of the Supreme Court’s operations.
  142. In evidence, justices never really felt constrained,
  143.    By stare decisis.
  144. Justices never really heeded precedent; unless,
  145.    They agreed with it.
  146. Marshall was really irritated:
  147. The Court decides laws,
  148. Based on the Constitution.
  149. What are the theoretical foundations,
  150. For the attitudinal model’s cause?
  151. ‘Tis the attitude of the Constitution,
  152. That causes judicial justification!
  153. The attitudinal model, in comprehensive form,
  154.    From Rohde and Spaeth we were informed.[10]
  155. For surely Supreme Court justices have preferences,
  156.    Regarding policy questions.
  157. Justices vote solely based on preferences because:
  158.     (1) Justices lack electoral accountability,
  159.     (2) Lack ambition for higher office, and,
  160.     (3) Act as a court of last resort.[11]
  161. Further, one faction will always give applause.
  162. Marshall asked for more evidence.
  163. In 1989, Segal and Cover propelled the attitudinal model,
  164.    Through the development of independent measures,
  165.      Regarding the attitudes of justices.[12]
  166. The “Segal/Cover scores” derived from a content analysis,
  167.    Of newspaper editorials published in select newspapers,
  168.    From the time of a justice’s nomination by the President until,
  169.    The confirmation vote by the Senate was over.
  170. The editorials were coded as liberal, moderate, conservative,
  171.    Or not applicable.
  172. A formula was applied to reach a final ideological score,
  173.    For each justice as best determinable.
  174. The scores accurately portrayed common knowledge,
  175.    About each justice’s political leanings.
  176. The authors’ dependent variable was the votes of justices,
  177.    In all decided civil liberties cases; beginning,
  178.      With the justices appointed during the Warren Court proceedings.
  179. The results showed strong support for the attitudinal model; see,
  180. Once applied to civil liberties cases; the correlation between
  181.    The ideological values of the justices and the votes they cast—
  182.      Was .80.
  183. Segal and Spaeth, along with Epstein and Cameron,[13]
  184.    Expanded the previous research.
  185. Using the Segal/Cover scores, they:
  186.    Included the two recent Bush appointees,
  187.      And backdated to include several Roosevelt
  188.         And Truman appointees.
  189.    They also included economic cases,
  190.      In addition to the civil liberties cases heeding.
  191. Marshall was now quite curious:
  192. And what did they find?
  193. The Roosevelt and Truman appointees were,
  194.   Weaker between ideological values and voting,
  195.      Than the Bush appointees; infer,
  196. In fact, from Eisenhower forward, there was a very strong
  197.    Correlation between preferences in,
  198.      Both civil liberties and economic cases—the findings concurred.
  199. Segal and Spaeth also presented systematic evidence,
  200.    On various processes within the Court:
  201.       Staffing, gatekeeping, decisions on the merits,
  202.         And distribution of opinion assignments.
  203. Marshall interposed:
  204. I suppose that the attitudes completely penetrate,
  205. All institutional features of the Court.
  206. Thus ideology plays a substantial role from the beginning,
  207. Through the final decision itself.
  208. The evidence suggests:
  209.   Ideology is related to the decision making process.
  210. As a consequence, then, judicial decision making,
  211.   In reality discounts the legal model as naïve and raw;
  212.      Really because there is no well-founded,
  213.       Systematic empirical evaluation practice,
  214.         When against an ideological draw; whereas,
  215.            The attitudinal model does explain much context, so,
  216.               Believe the model with the best empirical claw.
  217. Roger fought the idea that,
  218. ‘Twas one person’s attitudes,
  219. Which really mattered:
  220. But isn’t their attitude derived from,
  221. The betterment of a stable society to form?
  222. What about Bush v. Gore?[14]
  223. Salmon asserted:
  224. Unah and Hancock (2006) found,[15]
  225. That the attitudinal model is bound,
  226. Where only case salience matters and is a strong,
  227. As the explanatory vehicle for high salience,
  228. Are the only cases to be found.
  229. So…
  230. So the attitudinal model cannot wear a universal crown!
  231. Good! More than that:
  232. Legal model scholars might readily submit,
  233. That theirs is just as complicated and difficult, albeit,
  234. Still an explanatory model for political scientists!
  235. Morrison waited patiently, and then spoke:
  236. The attitudinal model is “legal realism,”
  237. Within the legal academy; and,
  238. ‘Tis incomplete when it ignores legal factors,
  239. Please see George and Epstein (1992).[16]
  240. In fact, both models may be codependent,
  241. Perhaps collaborative models able to predict,
  242. Future Supreme Court decisions.
  243. And what cases did they study?
  244. Cases involving the death penalty; 1972 until 1988,
  245. And how each model would account or oscillate.
  246. And the findings?
  247. Both models had a strong ability to account for
  248. The death penalty case outcomes.  However,
  249. Both models were skewed in some way:
  250. The legal model over-predicted liberal outcomes!
  251. The attitudinal model over-predicted conservative ones!
  252. Therefore an integrated model of decision making,
  253. That included legal and attitudinal modeling,
  254. Could better predict with the former understanding?!
  255. Don’t you see how research evolves?!
  256. Melville quickly interjected:
  257. Evolves? Let us recall,
  258. The stability assumption for all!
  259. For the attitudinal model to stand time, please hear:
  260. Voting behavior over the justices’ career—o’er the years,
  261. Must continually remain constant and persevere.
  262. This is the Numeral Uno assumption,
  263. For preference-based modeling activation.
  264. Was this stability assumption rigorously tested?
  265. Yes. 16 justices who sat on the Bench for 10 or more terms,
  266. From 1937 through 1993 were, it was suggested,
  267. Honorable to their preferences over time, yet;
  268. Some did change in linear and non-linear ways, and,
  269. The overall pattern of preferences was thus truly complicated,
  270. For us to discern—but significant enough to learn.
  271. Right. Why?
  272. If ideological values of a justice can change,
  273. When and why might they do so—
  274. Which is what we can now evaluate.
  275. When and what makes his or her preferences alone,
  276. Sincerely or sophisticatedly stable,
  277. In the decisional show? [17]
  278. Perhaps the newest model—The Rational Model—
  279. Will reveal a more sophisticated dynamo?
  280. Edward, are you ready for your cameo?
  281. Edward laughs and continues,
  282. This discovery path:
  283. The rational model is an expansion and modification,
  284. Of the attitudinal model’s demonstration.
  285. Justices do vote in a way to maximize their preferences,
  286. Yet that does not always mean a simple vote,
  287. With one preferred end:
  288. Or, one constant equilibrium.
  289. No, justices act strategically to ensure that their policy goals are met.
  290. Hear, the fate of policy depends on the preferences of other actors;
  291. Such as Congress, our President and their fellow justices.
  292. Class, think about John Robert’s ObamaCare decision!
  293. Edward continued:
  294. Murphy (1964) constructed the groundwork,
  295. But like most early rational choice theory,
  296. Murphy forgot the empirical evidence for how it worked.[18]
  297. Epstein and Knight (1998) in The Choices Justices Make,
  298. Brought the rational model to awake.
  299. Right, the attitudinal model was not incorrect, just incomplete.
  300. The framework they developed rests on three main ideas:
  301. (1)  “justices’ actions are directed toward the attainment of goals;
  302. (2)  justices are strategic; and
  303. (3)  institutions structure justices interactions”—like the oath. [19]
  304. William took the stage:
  305. Those actions include voting and joining opinions,
  306. Via their policy positions. [20]
  307. More than that, the entire decisional process;
  308. From accepting cases, conference discussion,
  309. Initial votes, opinion assignment, and draft opinions…
  310. Up to the final decision to sign an opinion;
  311. Really matters as a decision making condition.
  312. Each of these processes showcase strategic action evidence
  313. And interactions on the part of the justices.
  314. Importantly, justices are constrained by outside forces;
  315. Such as Congress, who can overturn their rulings, and,
  316. The President, who can change the Court makeup.
  317. At the very least, new appointments may be mortis,
  318. When there is an obvious faction of justices,
  319. Overturning Congress…oh, “the court
  320. Has often been composed of different numbers…”
  321. I am curious now:
  322. Was W.’s nomination of Harriet Miers,
  323. Meant to be read as:
  324. “Supreme Court decisions aren’t that serious…
  325. ‘re just a bunch of legal writers…”
  326. That’s why justices act in such a way,
  327. That promotes their policy preferences,
  328. Beyond simply voting according to their values,
  329. We can say.
  330. Tell me about Hammond, Bonneau, and Sheehan (2006).[21]
  331. Charles joined the conversation:
  332. They integrated the attitudinal and rational choice models.
  333. They took issue with several of the underlying assumptions,
  334. Concerning the attitudinal model
  335. And it’s limited empirical evidence,
  336. Regarding the processes and stages,
  337. In addition to the final vote’s prominence.
  338. In fact, there is a dearth of reliable and valid evidence,
  339. To support either of the models adequately.
  340. They examined each stage of the Court’s,
  341. Decision making process that distinguished
  342. Between strategic and sincere decisions,
  343. At each stage in the institutional process.
  344. ‘Twas the first comprehensive, rigorous,
  345. And systematic model of Supreme Court decision making.
  346. ‘Twas consistent with their integrated model,
  347. As both sincere attitudes and strategic behavior were found,
  348. To affect decision making at each stage of the process.
  349. Here was the empirical ground.
  350. Indeed, the evidence strongly supported the rational,
  351. Strategic justices and the strong impact of
  352. Institutional factors on decision making…
  353. Much more than the effect of sincere attitudes,
  354. Or the original attitudinal model of,
  355. Supreme Court decision making.
  356. And refresh my memory, please,
  357.     What is the attitudinal retort to these?
  358. Harlan lowered his chin to begin:
  359. Segal (1997) conducted a study comparing
  360. The attitudinal model to the rational choice model,
  361. By examining the votes of Supreme Court justices,
  362. In cases decided between 1947 and 1992.
  363. Again, the institutional arrangement,
  364. Allows for the S.C. Justices to be independent,
  365. Of the rational model’s strategic miscue!
  366. There are lifetime appointments.
  367. Justices are not politically accountable.
  368. The Court is an agenda decider of last resort.
  369. The public, President, and Congress know this force!
  370. The Supreme Court is a fortress!
  371. In the end, only their preferences matter,
  372. To the members of the Court!
  373. Hence the justices vote their sincere preferences;
  374. Without any strategic concerns,
  375. Within the process in use![22]
  376. Understood.
  377. But what more of the rational choice model?
  378. Fred took his turn:
  379. Spiller and Gely (1992) found that changes in the ideology,
  380. Of relevant congressmen influenced cases,
  381. Involving the National Labor Relations Act,
  382. To the same extent that changes in ideology,
  383. Of Supreme Court justices did—in fact.[23]
  384. In this way, the Supreme Court’s decision making,
  385. Is significantly influenced by congressional preferences;
  386. A rational choice act.
  387. Who, from this, did detract?
  388. Earl did react:
  389. Segal (1997) attacked, [24]
  390. The methods they used to attract,
  391. More research to this decision making tract.
  392. Segal re-worked several of their lines of research, looking back,
  393. In addition to conducting his own independent research, to track,
  394. Whether or not their conclusions are universal—to interact
  395. With other areas of law outside of labor relations—or in fact,
  396. Was this another single-case artifact!?
  397. And the evidence? The data impact?
  398. There is evidence of strategic behavior, but,
  399. The majority of the evidence supported the concept that,
  400. The justices overwhelmingly voted their sincere values,
  401. And attitudes on the stand.
  402. So the “attitudinal model” is the unambiguous “winner”
  403. Between the two as an indicator of judicial decision making,
  404. Segal demands. [25]
  405. What makes the rational model so different from,
  406.    The attitudinal model under consideration?
  407. Warren smiled widely:
  408. Bergara, Richman, and Spiller (2003) were dissatisfied.[26]
  409. For there were apparently contradictory findings,
  410. In the studies conducted by Spiller and Gely (1992),
  411. And Segal in 1997. Meaning,
  412. Science itself was unhappy.
  413. Bergara et al. see the attitudinal and rational choice model,
  414. Like twin brothers.
  415. They appear the same but also share,
  416. Profound distinctions.
  417. Under the attitudinal model (Segal),
  418. Judicial decisions are unfiltered reflections,
  419. Of sincere attitudes and ideology unaffected,
  420. By any other considerations.
  421. Under the rational choice model,
  422. Judges are forward-looking political actors,
  423. Who consider the potential reactions,
  424. Of their policy competitors.
  425. So they developed an econometric model to estimate,
  426. The determinants of Supreme Court decisions,
  427. Based on the model devised by Spiller and Gely (1992),
  428. And applied it to analyze Segal’s (1997) data too.
  429. Several findings were consistent with the attitudinal model;
  430. Justices’ ideologies substantially do influence,
  431. Their final decisions in the end.
  432. However, they also found that the Court
  433. Is often politically restrained, especially by Congress;
  434. Although the extent to which the Court feels constrained,
  435. Does vary over time.
  436. Finally, when the Court was constrained,
  437. It responded by acting strategically.
  438. Thus justices do act strategically,
  439. At least some of the time,
  440. Which is enough to reject the attitudinal model,
  441. As the best and solo winner,
  442. As Segal did chime.
  443. Further, they discounted Segal’s findings,
  444. As the result of certain biases.
  445. In the end, the rational choice model was significant,
  446. As an explanatory model for scientists.
  447. Yet Segal and Spaeth in 2002 concluded;[27]
  448.   Justices truly do not need to act strategically,
  449.       There is no real force there anymore…
  450.   ‘Tis uber rare that both chambers of Congress,
  451.       And the president—
  452.          Will unify against the Court, for sure.
  453. These are partisan days.
  454. Furthermore, Segal and Spaeth argued;
  455.    Justices take advantage of framing the issue,
  456.      And the decision in their opinions,
  457.        Making them less likely to be overturned,
  458.            Because the decision as framed makes legal sense.
  459. Lastly, Segal and Spaeth claimed;
  460.    Small changes in the rational choice model, say,
  461.       Including justices’ preferences in the model,
  462.         When other researchers had left them out,
  463.           Made institutional constraints on outcomes—
  464.                Not significant. Thus, keep the doubt!
  465. They concluded that, at all stages of the decision making process:
  466.     “only the attitudinal model’s explanation [of Court decisions]
  467.         is well supported by systematic empirical evidence.”[28]
  468. William was curious:
  469. What is the impact of public opinion?
  470. Doesn’t it matter to this political sphere?
  471. What’s the scholarly opinion cheered?
  472. The professor paused,
  473. And repeated:
  474. “Public opinion, public opinion…”
  475. Is the Court a countermajoritarian institution?
  476. I mean, does it thwart the majority will of the people,
  477.   And their elected representatives when it overturns,
  478.    A legislative act. Doesn’t this cause upheaval?
  479. From the haystack—the former is the needle.
  480. John eagerly contributed:
  481. In fact, “almost all constitutional scholars
  482. and democratic theorists agree
  483. that the Supreme Court is,
  484. either in process or in substance,
  485. a countermajoritarian institution.”[29]
  486. We see no public accountability.
  487. Marshall broke in:
  488. Although the Court is countermajoritarian in form,
  489. It does not necessarily ignore,
  490. The opinions of the majority,
  491. Of the people.
  492. This substance;
  493. Let us explore.
  494. What about Dahl?
  495. Earl spoke up:
  496. Dahl (1957) argued that the Court,
  497. Was less countermajoritarian in practice than thought.
  498. Indeed, policy outputs of the Court,
  499. Likely did conform to the policy preferences,
  500. Of the majority in the long run.[30]
  501. In fact, American politics and policymaking
  502. Is dominated by relatively stable and enduring
  503. National electoral coalitions, and the Court supports
  504. The major policies of the coalitions reassuring,
  505. They are not so countermajoritarian in their procuring.
  506. Have scholars affirmed or rebuked Dahl?
  507. Marshall’s voice was soft yet strong:
  508. Scholars have supported Dahl’s (1957) hypothesis.
  509. The Court’s reputation as a countermajoritarian institution,
  510. Has been greatly exaggerated.
  511. Barnum (1985) found that the so-called “activist” Court
  512. Generally had the support of the majority, or,
  513. The support was trending in a positive direction. [31]
  514. When it ruled to protect minority rights, in addition,
  515. Smaller courts were reluctant to rule for minority rights,
  516. And usually abided by stare decisis.
  517. But that doesn’t mean that the Supreme Court ignored civilians.
  518. Therefore, even during its most “active” time,
  519. As a countermajoritarian institution,
  520. The Court most often ruled in line with public opinion!
  521. Harlan spoke brightly:
  522. Marshall (1989) the scholar—not the one in this class,
  523. Marshall laughed.
  524. Conducted an ambitious and comprehensive study,
  525. Of public opinion and the Court along this path.[32]
  526. He examine 146 situations from the mid-1930s to 1986, and,
  527. All or part of a Supreme Court decision could be matched,
  528. With a specific nationwide public poll item.
  529. To be sure, in 63% of these decisions,
  530. The Court agreed with the polls,
  531. Making the Court “roughly as consistent with
  532. Public opinion as other U.S. decision makers.”[33]
  533. Is public opinion direct or indirect?
  534. Earl’s voice burgeoned:
  535. According to Dahl, the Court responds to public opinion since,
  536. The President may “tip the balance on a normally divided Court.”[34]
  537. This “indirect” impact of public opinion on judicial decision making,
  538. Is now widely accepted by Court scholars; yet more troublesome,
  539. Is the issue of whether public opinion “directly” impacts,
  540. The Court apart from changes in membership.
  541. The Professor felt left out,
  542. And so took back the conversation:
  543. Mishler and Sheehan (1992, 1996) pointed out two ways,
  544. That the Court could be directly impacted by public opinion:
  545. (1)  Justices are aware that the Court is a political institution
  546.  Whose authority depends on public deference and respect,
  547.    This is the “political adjustment hypothesis;” or,
  548. (2)  Judicial values and preferences can change over time,
  549.  Either in response to fundamental changes in public opinion,
  550.   Or as a result of the underlying social forces that caused
  551.    The change in public opinion, which is called,
  552.       The “attitude change hypothesis” or “conversion hypothesis.”
  553. Now class, must justices consider the possibility,
  554.    That Congress or the president will overturn their decisions,
  555.       Or that the decisions will be improperly enforced indefinitely?
  556. If so, wouldn’t institution-minded justices want to maintain,
  557.     The legitimacy of the Court and therefore want to evade,
  558.        The public embarrassment of defeat to be overplayed,
  559.         By the accompanying weakening of the Court to pervade?
  560. John knew the feeling:
  561. Justices may adjust their decision slightly and brave,
  562. A compromise in order to evade,
  563. Active political opposition,
  564. By paying attention to public opinion.[35]
  565. In this way, the rational choice model is supported,
  566. By the thesis that public opinion does directly impact,
  567. The Justices’ decision making as the justices,
  568. Are necessarily acting strategically,
  569. In order to integrate public opinion facts.
  570. Earl smiled and advanced:
  571. Mishler and Sheehan (1993) are strong proponents,
  572. Of the direct impact of public opinion,
  573. On the Court decision making process.[36]
  574. They examined Supreme Court decisions made during,
  575. 1956-1989, and using,
  576. Stimson’s (1992) “public mood” index to measure,
  577. The ideological currents of the public; they found this treasure:
  578. Trends in Supreme Court decisions and,
  579. The liberalism of the public mood corresponded closely,
  580. With shifts in the public mood slightly,
  581. Ahead of associated changes in the Court’s liberalism—brightly,
  582. There is a reciprocal relationship between public mood,
  583. And the Court’s ideological tenor; precisely,
  584. Each factor influenced the other nicely.
  585. They concluded that the impact of public opinion,
  586. Is partially indirect when mediated through its impact,
  587. On the changing membership of the Court,
  588. But is also partially direct, independent of,
  589. Membership change in the Court make-up.
  590. Prior to 1981, when the Court’s ideology is viewed,
  591. To substantially diverge from public mood,
  592. The Court should be seen as an institution sensitive to,
  593. Majority opinion and changes in public mood,
  594. Albeit after a five-year lag ensues.
  595. Harlan smiled at Earl,
  596. And continued the dialogue:
  597. Norpoth and Segal (1994) criticized the methodology used,
  598. In the study Earl examined.
  599. They reanalyzed the data using their own model and found;
  600. No evidence of a direct path of influence from public opinion,
  601. To the Court’s decision making process.
  602. They attributed any changes in judicial behavior to,
  603. Ideological shifts on the Court as a whole due to new,
  604. Appointments by the president, consistent with,
  605. The indirect model of influence.[37]
  606. Earl was not amused:
  607. Mishler and Sheehan (1994) responded by defending,
  608. Their methodology and their direct influence findings.
  609. Harlan shrugged.
  610. And so Earl continued:
  611. Mishler and Sheehan (1996) later expanded their research,
  612. To include individual-level analysis of the political adjustment,
  613. And conversion hypotheses.[38]
  614. Under study was the responsiveness of individual justices,
  615. To changes in public opinion from 1953-1992.
  616. Were some justices more responsive to public opinion,
  617. Than others—perhaps to be wooed?
  618. No need to woo Justice Clarence Thomas;
  619. Wooing him is to show yourself to be a fool…
  620. In order to prove the political adjustment hypothesis,
  621. ‘Twas enough to show that at least some justices,
  622. Occasionally altered their decisions based on their concern,
  623. With protecting the Court’s legitimacy in response to a shift,
  624. In public opinion. For that, sir, you do discern!?
  625. Harlan looked around,
  626. And all were listening to Earl now.
  627. So Earl gently continued,
  628. His knowledge drawl:
  629. The conversion hypothesis simply holds,
  630. That the policy preferences of some justices,
  631. Might change over time, and if and when so,
  632. That empirical show;
  633. Whether they are conscious of the change or not,
  634. Is a response to either shifts in public mood; or,
  635. Underlying factors that caused those shifts to boot.
  636. Marshall, with his black eyes,
  637. Appeared to decide:
  638. Unfortunately, the authors were unable to differentiate
  639. Empirically between the political adjustment,
  640. And conversion hypotheses, but let’s see;
  641. Consistent with both hypotheses, they showed that,
  642. Long-term trends in public opinion have a direct influence,
  643. On individual justices, just as they have an impact on,
  644. Aggregate Court decisions.
  645. And believe;
  646. Not all justices that were studied were affected,
  647. Yet significant effects were shown for approximately,
  648. One-half of the justices, and substantial effects,
  649. Were shown for one-third of the Justices confidently.[39]
  650. Harlan gleefully agreed:
  651. The attitudinal model is therefore incomplete.
  652. It must be revised to take into account the impact,
  653. Of public opinion on the Court,
  654. As well as the fluid individual attitudes of justices…
  655. Surely you have come, Earl, to agree?[40]
  656. William of the 10th Amendment League,
  657. Gaily articulated this speech:
  658. Now Flemming and Wood (1997),
  659. Conducted an analysis of the impact of,
  660. Mass shifts in public opinion on individual justices.
  661. They found that public opinion does impact decisions,
  662. By the majority of individual justices in most decision areas,
  663. With a relatively quick one-term lag to influence! [41]
  664. Earl broke in:
  665. But they also found that the magnitude,
  666. Of the response to public opinion was subsidiary.
  667. This they considered to be consistent with,
  668. The attitudinal model now under strict scrutiny.
  669. John found some middle ground:
  670. So justices tend to vote their policy preferences,
  671. But those preferences are not always stable,
  672. And could be shifted depending on similar shifts,
  673. In public opinion.
  674. The professor was pleased,
  675. With these erudite students.
  676. Of course, it should be no surprise;
  677. Segal and Speath (2002) also weighed in on,
  678. The direct effect of public opinion.[42]
  679. Their analysis revealed no evidence of any shifts,
  680. In decision making based on shifts in public opinion,
  681. Which would correspond to the process of preferences.
  682. Simply, justices’ personal policy preferences,
  683. Remain the only significant influence,
  684. On the Court and its decisions.
  685. Warren got his wind back:
  686. McGuire and Stimson’s (2004) independent,
  687. And alternative analysis,
  688. Regarding the Court’s relative liberalism,
  689. In conjunction with shifts in mass public opinion,
  690. Confirms much of everything.[43]
  691. They found an even stronger influence of public opinion,
  692. Than documented previously.
  693. The Court’s policy outcomes were impacted substantially,
  694. By public opinion; both directly and indirectly.
  695. And, they also analyzed the effect of attitudinal factors.
  696. After holding constant the significant public opinion effects,
  697. Justices were still highly motivated by their personal preferences;
  698. Thus the attitudinal model still projects much respect.
  699. The professor needed a break:
  700. To conclude, the debate over why exactly,
  701.    Supreme Court justices decide cases the way they do,
  702.      Is still a puzzle for you and me to muse.
  703. Evidence has been collected and presented,
  704.    Indeed, all three models deserve respect.
  705. Though most political scientists seem to agree that,
  706.    The legal model can no longer be considered the best…
  707.        While the other explanatory models;
  708.           The attitudinal model and the rational choice model,
  709.            Have not yet gained universal consensus.
  710. The impact of public opinion on judicial decision making,
  711.    Is also without a definitive answer—thus shaky.
  712. But it is clear that some influence does occur, at least indirectly,
  713.     So we would think that each model should incorporate,
  714.       Public opinion when attempting to fully explain,
  715.          Supreme Court decision making.
  716. Marshall spoke up:
  717. Thank you for an excellent debate.
  718. But professor,
  719. What about the ability of the Chief Justice,
  720. Or of one particular Justice,
  721. To frame the debate in order to attain,
  722. The outcome right from the beginning?
  723. What if John Marshall, just sayin’,
  724. Was the Justice that mattered for a quarter century?
  725. What would we call this model?
  726. This model of governing leadership?
  727. The professor was intrigued:
  728. Like how O’Conner framed the Roe v. Wade debate?
  729. How Justices at times take great pains,
  730.    To influence a few players’ decision and obtain,
  731.        That one particular Justice’s successful campaign?
  732. Marshall felt happiness,
  733. Rush through his sides:
  734. It just seems to me,
  735. Albeit I’m just a student;
  736. That preferences are limited,
  737. That public opinion matters little,
  738. That the President and Congress matter littler still,
  739. But that one Justice strongly convinced—
  740. A noble Justice with clear vision and American charisma,
  741. Could constantly craft every decision!
  742. Well Marshall, you could research that…
  743. How many decisions were due to splendid leadership…
  744. I shall call it the “Leadership Model.”
  745. How about that?
  746. Very good, young man…
  747. And I’m glad you are young; because,
  748. That study will take you a generation!
  749. Perhaps my dissertation?
  750. Harlan wondered:
  751. Perhaps better, Marshall, as a class analysis.
  752. We can divide it up by Chief Justices…
  753. We can meet after the summer with our research…
  754. I’ll take John Rutledge.
  755. Marshall’s black eyes grew wide:
  756. Perhaps a random analysis of Court cases,
  757. Will suffice.
  758. You know the rules…
  759.    Give credit to whom credit ‘tis due.
  760. And with that,
  761. The professor called for a break.
  762. Would Marshall move forward with,
  763. His Leadership Hypothesis?
  764. Would Harlan challenge him again?
  765. Oh yea, would these students; akin,
  766. Breakthrough the research field and win,
  767. Their place in academia?
********
This poem is basically my re-writing of Kyla Stepp’s propositional inventory on the Supreme Court. The “Leadership Hypothesis” is entirely my own. Again, Kyla’s paper is HERE. Of course, the Gadfly is all me too.


[1] Dworkin, Ronald. 1988. Taking Rights Seriously. Cambridge, MA: Harvard University Press.

[2] Segal, Jeffrey A. and Harold J. Spaeth. 1996. “The Influence of Stare Decisis on the Votes of United   States Supreme Court Justices.” American Journal of Political Science 40(4): 971-1003.

[3] Caldeira, Gregory A. 1994. “Review of The Supreme Court and the Attitudinal Model.” American Political Science Review 88(2): 485-486. Quote from page 485.

[4] Caldeira, Gregory A. 1994. “Review of The Supreme Court and the Attitudinal Model.” American Political Science Review 88(2): 485-486. Quote from page 485.

[5] Segal, Jeffrey A. and Harold J. Spaeth. 1996. “The Influence of Stare Decisis on the Votes of United States Supreme Court Justices.” American Journal of Political Science 40(4): 971-1003.

[6] Segal, Jeffrey A. and Harold J. Spaeth. 1996. “The Influence of Stare Decisis on the Votes of United   States Supreme Court Justices.” American Journal of Political Science 40(4): 971-1003.

[7] Brisbin Jr., Richard A. 1996. “Slaying the Dragon: Segal, Spaeth and the Function of Law in Supreme Court Decision Making.” American Journal of Political Science 40(4): 1004-1017.

[8] Songer, Donald R. and Stefanie A. Lindquist. 1996. “Not the Whole Story: The Impact of Justices’ Values on Supreme Court Decision Making.” American Journal of Political Science 40(4): 1049-1063.

[9] Spaeth, Harold J. and Jeffrey A. Segal. 1999. Majority Rule or Minority Will: Adherence to Precedence on the U.S. Supreme Court. New York: Cambridge University Press.

[10] Rohde, David and Harold J. Spaeth. 1976. Supreme Court Decision Making. San Francisco: W. H. Freeman.

[11] Ibid. page 72.

[12] Segal, Jeffrey A. and Albert D. Cover. 1989. “Ideological Values and the Votes of U.S. Supreme Court Justices.” American Political Science Review 83(2): 557-564.

[13] Segal, Jeffrey A., Lee Epstein, Charles M. Cameron, and Harold J. Spaeth. 1995. “Ideological Values and the Votes of U.S. Supreme Court Justices Revisted.” The Journal of Politics 57(3): 812-823.

[14] Segal, Jeffrey A. and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press.

[15] Unah, Isaac and Ange-Marie Hancock. 2006. “U.S. Supreme Court Decision Making, Case Salience, and the Attitudinal Model.” Law & Policy 28(3): 295-320.

[16] George, Tracey E. and Lee Epstein. 1992. “On the Nature of Supreme Court Decision Making.” American Political Science Review 86(2): 323-337.

[17] Epstein, Lee, Valerie Hoekstra, Jeffrey A. Segal, and Harold J. Spaeth. 1998. “Do Political Preferences Change? A Longitudinal Study of U.S. Supreme Court Justices.” The Journal of Politics 60(3): 801-818.

[18] Murphy, Walter F. 1964. Elements of Judicial Strategy. Chicago: University of Chicago Press.

[19] Epstein, Lee and Jack Knight. 1998. The Choices Justices Make. Washington, D.C.: CQ Press. Pages 10-11.

[20] This is still: Epstein, Lee and Jack Knight. 1998. The Choices Justices Make. Washington, D.C.: CQ Press. By the way, I am using Supreme Court Chief Justices as the students in the class.

[21] Hammond, Thomas H., Chris W. Bonneau, and Russell S. Sheehan. 2006. Strategic Behavior and Policy Choice on the U.S. Supreme Court. Stanford: Stanford University Press.

[22] Segal, Jeffrey A. 1997. “Separation-of-Powers Games in the Positive Theory of Congress and Courts.” American Political Science Review 91(1): 28-44.

[23] Spiller, Pablo T. and Rafael Gely. 1992. “Congressional Control of Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988.” Rand Journal of Economics 23: 463-492.

[24] Segal, Jeffrey A. 1997. “Separation-of-Powers Games in the Positive Theory of Congress and Courts.” American Political Science Review 91(1): 28-44.

[25] Segal, Jeffrey A. 1997. “Separation-of-Powers Games in the Positive Theory of Congress and Courts.” American Political Science Review 91(1): 28-44.

[26] Bergara, Mario, Barak Richman, and Pablo T. Spiller. 2003. “Modeling Supreme Court Strategic Decision Making: The Congressional Constraint.” Legislative Studies Quarterly 28(2): 247-280.

[27] Segal, Jeffrey A. and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press.

[28] Segal, Jeffrey A. and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press. Page 351.

[29] Marshall, Thomas. 1989. Public Opinion and the Supreme Court. New York: Longman. Page 4.

[30] Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” Journal of Public Law 6: 279-295.

[31] Barnum, David G. 1985. “The Supreme Court and Public Opinion: Judicial Decision Making in the Post-New Deal Period.” Journal of Politics 47: 652-665.

[32] Marshall, Thomas. 1989. Public Opinion and the Supreme Court. New York: Longman.

[33] Ibid. Page 79.

[34] Dahl, Robert A. 1957. “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker.” Journal of Public Law 6: 279-295. Page 284.

[35] McGuire, Kevin T. and James A. Stimson. 2004. “The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences.” The Journal of Politics 66(4): 1018-1035.

[36] Mishler, William and Reginald S. Sheehan. 1993. “The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions.” American Political Science Review 87(1): 87-101.

[37] Norpoth, Helmut and Jeffrey A. Segal. 1994. “Popular Influence on Supreme Court Decisions: Comment.” American Political Science Review 88(3): 711-716.

[38] Mishler, William and Reginald S. Sheehan. 1996. “Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective.” The Journal of Politics 58(1): 169-200.

[39] Mishler, William and Reginald S. Sheehan. 1996. “Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective.” The Journal of Politics 58(1): 169-200.

[40] Mishler, William and Reginald S. Sheehan. 1996. “Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective.” The Journal of Politics 58(1): 169-200.

[41] Flemming, Roy B. and B. Dan Wood. 1997. “The Public and the Supreme Court: Individual Justice Responsiveness to American Policy Moods.” American Journal of Political Science 41(2): 468-498.

 [42] Segal, Jeffrey A. and Harold J. Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press.

 [43] McGuire, Kevin T. and James A. Stimson. 2004. “The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences.” The Journal of Politics 66(4): 1018-1035.

One thought on “Marshall’s 4th Model of Supreme Court Decision Making

  1. Pingback: Poetry: American Politics « Political Pipeline

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