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
-
The professor looked forward,
-
To this lecture all year.
-
To her, it appeared;
-
Research moves slumbered,
-
For daring students,
-
To steer.
-
Would these bright students,
-
See the new research moves,
-
And make them clear?
-
With eyes full of wit,
-
And a little mischief,
-
The professor opened sincere:
- Why do Supreme Court justices,
- Vote on cases the way they do?
- Does a dominant theory explain,
- The actions of justices,
- Or do multiple considerations
- Come into play?
- Yes, really, you get to choose.
- Today, there are three models
- Put forth by scholars,
- To make plain the vote choice for you.
- They are: (1) The legal model,
- (2) The attitudinal model, and,
- (3) The rational choice model;
- Let us investigate them in use.
- Let us survey the findings and arguments,
- By the proponents of each model,
- As well as the disputes which have arisen,
- Between those proponents—providing us clues.
- Let us illuminate the limitations of the contents;
- And expound the role of public opinion,
- As an influence on the Court, as a wrench… or a fuse,
- Let us discover the hues, coups, and research news.
-
This was a quiet class,
-
All seemed to have forgotten,
-
Their Tim Hortons’ coffee glass.
- The “Legal Model” is the original explanatory theory,
- Of judicial decision making.
- It dominates the discussion amongst lawyers,
- And the legal community—the legal choir.
- Accordingly, case outcomes are determined,
- By legal doctrine.
- This includes precedent, plain meaning, and,
- The framers’ intent at adoption.
- ‘Tis true that S.C. justices are not legally bound by precedent,
- Or stare decisis;
- Yet ‘tis precedent as a decision making mechanism,
- Which enforces the stability and legitimacy,
- Of the process and long-standing legal doctrine.
- Thus every lawyer’s legal education,
- And hence, every judge;
- Stresses the role of precedent in legal reasoning,
- As the decision making foundation.
-
Finally some students’ minds,
-
Of the discourse,
-
Did rapidly unwind.
-
Professor, look at the case law; indeed,
-
Every case cites precedence,
-
In the decision making decree!
- Prominent legal theorist and scholar, Ronald Dworkin,
- Would agree.
- He stresses that stare decisis plays a vital role,
- In judicial decision making and thinks:
- Judges ignore their own personal beliefs,
- In order to follow existing law and adhere,
- To legal history.[1]
- Also, lower court judges almost always decide,
- In favor of the legal model and the important role,
- Of precedent—as a modus to justify,
- The decision(s) for all parties to comply.[2]
-
A witty one ascertained:
-
What other model could reveal,
-
Why the “Legal Model” decision making does yield,
-
To another explanation over the years?
- Many in the political science community,
- Feel the legal model is outdated and naïve.
- Caldeira, for example, can think of “no political scientists
- Who would take plain meaning, intent of the framers, and precedent
- As good explanations of what the justices do in making decisions.”[3]
- Hear: the legal model is a “silly formalism” that “no one
- Who has taken introduction to American government
- Or read Marbury v. Madison or witnessed the fights
- Over nominations to the Court during the Reagan
- And Bush years is going to ascribe to…”[4] Anyone here?
-
Jay had something to say:
-
Prior to the mid-1990s,
-
Attacks on the legal model lacked,
-
Systematic empirical findings.
-
For scientists had to demonstrate,
-
That legal factors are not significant
-
In the Supreme Court decision making process.
- And what was the first and biggest blow,
- To the legal model show?
-
Jay continued:
-
The “Attitudinal Model,”
-
By Segal and Spaeth,[5]
-
In 1996 sought the impact of precedent
-
On the votes of Supreme Court justices.
- Yes, and how did they figure out,
- When the legal model showcased doubt?
-
Jay concluded:
-
For precedent to actually impact a decision,
-
Decision results would confirm precedence,
-
When justices disagree with the decision—
-
Therefore ignoring self-attitudes,
-
And simply confirming past decisions.
- Thus Segal and Spaeth looked at cases,
- Where the justices’ preferred outcomes to say,
- Were different from the precedent they would engage.
- They found that justices’ votes conformed to their own,
- Their own revealed preferences 90.8% of the time, so;
- A justice only 9.2% of the time to his/her attitude did disown.
-
Rutledge interjected:
-
More so, only two of the justices studied displayed,
-
Any adherence to precedent at all,
-
And these were Stewart and Powell,
-
Says Segal and Spaeth.[6]
- Now Brisbin applauded that precedent was,
- The explanatory variable for researching laws.
- Unfortunately, accordingly, the research had flaws,
- In the conceptual decisions and conclusions, thus,
- The legal model to still had claws.[7]
- Similarly, Songer and Lindquist,[8]
- Reanalyzed the data using their own checklist;
- i.e., Improved methodological measures to test.
- They discovered that a simple change,
- In coding conventions made a substantial difference;
- Verily, the proportion of votes via personal preferences,
- Dropped from 90% to 70%–which was quite a big difference,
- But still, for the attitudinal model, very significant.
-
Ellsworth got in a word:
-
Therefore precedent has a substantial influence,
-
On the justices decisions.
- Spaeth and Segal (1999) revisited this debate,
- In a comprehensive book…
- Majority Rule or Minority Will: Adherence to Precedence
- On the U.S. Supreme Court.[9]
- They analyzed 2,425 votes cast over 341 cases,
- From 1793 through 1990, spanning the history,
- Of the Supreme Court’s operations.
- In evidence, justices never really felt constrained,
- By stare decisis.
- Justices never really heeded precedent; unless,
- They agreed with it.
-
Marshall was really irritated:
-
The Court decides laws,
-
Based on the Constitution.
-
What are the theoretical foundations,
-
For the attitudinal model’s cause?
-
‘Tis the attitude of the Constitution,
-
That causes judicial justification!
- The attitudinal model, in comprehensive form,
- From Rohde and Spaeth we were informed.[10]
- For surely Supreme Court justices have preferences,
- Regarding policy questions.
- Justices vote solely based on preferences because:
- (1) Justices lack electoral accountability,
- (2) Lack ambition for higher office, and,
- (3) Act as a court of last resort.[11]
- Further, one faction will always give applause.
-
Marshall asked for more evidence.
- In 1989, Segal and Cover propelled the attitudinal model,
- Through the development of independent measures,
- Regarding the attitudes of justices.[12]
- The “Segal/Cover scores” derived from a content analysis,
- Of newspaper editorials published in select newspapers,
- From the time of a justice’s nomination by the President until,
- The confirmation vote by the Senate was over.
- The editorials were coded as liberal, moderate, conservative,
- Or not applicable.
- A formula was applied to reach a final ideological score,
- For each justice as best determinable.
- The scores accurately portrayed common knowledge,
- About each justice’s political leanings.
- The authors’ dependent variable was the votes of justices,
- In all decided civil liberties cases; beginning,
- With the justices appointed during the Warren Court proceedings.
- The results showed strong support for the attitudinal model; see,
- Once applied to civil liberties cases; the correlation between
- The ideological values of the justices and the votes they cast—
- Was .80.
- Segal and Spaeth, along with Epstein and Cameron,[13]
- Expanded the previous research.
- Using the Segal/Cover scores, they:
- Included the two recent Bush appointees,
- And backdated to include several Roosevelt
- And Truman appointees.
- They also included economic cases,
- In addition to the civil liberties cases heeding.
-
Marshall was now quite curious:
-
And what did they find?
- The Roosevelt and Truman appointees were,
- Weaker between ideological values and voting,
- Than the Bush appointees; infer,
- In fact, from Eisenhower forward, there was a very strong
- Correlation between preferences in,
- Both civil liberties and economic cases—the findings concurred.
- Segal and Spaeth also presented systematic evidence,
- On various processes within the Court:
- Staffing, gatekeeping, decisions on the merits,
- And distribution of opinion assignments.
-
Marshall interposed:
-
I suppose that the attitudes completely penetrate,
-
All institutional features of the Court.
-
Thus ideology plays a substantial role from the beginning,
-
Through the final decision itself.
- The evidence suggests:
- Ideology is related to the decision making process.
- As a consequence, then, judicial decision making,
- In reality discounts the legal model as naïve and raw;
- Really because there is no well-founded,
- Systematic empirical evaluation practice,
- When against an ideological draw; whereas,
- The attitudinal model does explain much context, so,
- Believe the model with the best empirical claw.
-
Roger fought the idea that,
-
‘Twas one person’s attitudes,
-
Which really mattered:
-
But isn’t their attitude derived from,
-
The betterment of a stable society to form?
- What about Bush v. Gore?[14]
-
Salmon asserted:
-
Unah and Hancock (2006) found,[15]
-
That the attitudinal model is bound,
-
Where only case salience matters and is a strong,
-
As the explanatory vehicle for high salience,
-
Are the only cases to be found.
- So…
-
So the attitudinal model cannot wear a universal crown!
- Good! More than that:
- Legal model scholars might readily submit,
- That theirs is just as complicated and difficult, albeit,
- Still an explanatory model for political scientists!
-
Morrison waited patiently, and then spoke:
-
The attitudinal model is “legal realism,”
-
Within the legal academy; and,
-
‘Tis incomplete when it ignores legal factors,
-
Please see George and Epstein (1992).[16]
-
In fact, both models may be codependent,
-
Perhaps collaborative models able to predict,
-
Future Supreme Court decisions.
- And what cases did they study?
- Cases involving the death penalty; 1972 until 1988,
- And how each model would account or oscillate.
- And the findings?
-
Both models had a strong ability to account for
-
The death penalty case outcomes. However,
-
Both models were skewed in some way:
-
The legal model over-predicted liberal outcomes!
-
The attitudinal model over-predicted conservative ones!
- Therefore an integrated model of decision making,
- That included legal and attitudinal modeling,
- Could better predict with the former understanding?!
- Don’t you see how research evolves?!
-
Melville quickly interjected:
-
Evolves? Let us recall,
-
The stability assumption for all!
-
For the attitudinal model to stand time, please hear:
-
Voting behavior over the justices’ career—o’er the years,
-
Must continually remain constant and persevere.
-
This is the Numeral Uno assumption,
-
For preference-based modeling activation.
- Was this stability assumption rigorously tested?
-
Yes. 16 justices who sat on the Bench for 10 or more terms,
-
From 1937 through 1993 were, it was suggested,
-
Honorable to their preferences over time, yet;
-
Some did change in linear and non-linear ways, and,
-
The overall pattern of preferences was thus truly complicated,
-
For us to discern—but significant enough to learn.
- Right. Why?
-
If ideological values of a justice can change,
-
When and why might they do so—
-
Which is what we can now evaluate.
-
When and what makes his or her preferences alone,
-
Sincerely or sophisticatedly stable,
-
In the decisional show? [17]
- Perhaps the newest model—The Rational Model—
- Will reveal a more sophisticated dynamo?
- Edward, are you ready for your cameo?
-
Edward laughs and continues,
-
This discovery path:
-
The rational model is an expansion and modification,
-
Of the attitudinal model’s demonstration.
-
Justices do vote in a way to maximize their preferences,
-
Yet that does not always mean a simple vote,
-
With one preferred end:
-
Or, one constant equilibrium.
-
No, justices act strategically to ensure that their policy goals are met.
-
Hear, the fate of policy depends on the preferences of other actors;
-
Such as Congress, our President and their fellow justices.
- Class, think about John Robert’s ObamaCare decision!
-
Edward continued:
-
Murphy (1964) constructed the groundwork,
-
But like most early rational choice theory,
-
Murphy forgot the empirical evidence for how it worked.[18]
-
Epstein and Knight (1998) in The Choices Justices Make,
-
Brought the rational model to awake.
- Right, the attitudinal model was not incorrect, just incomplete.
- The framework they developed rests on three main ideas:
- (1) “justices’ actions are directed toward the attainment of goals;
- (2) justices are strategic; and
- (3) institutions structure justices interactions”—like the oath. [19]
-
William took the stage:
-
Those actions include voting and joining opinions,
-
Via their policy positions. [20]
-
More than that, the entire decisional process;
-
From accepting cases, conference discussion,
-
Initial votes, opinion assignment, and draft opinions…
-
Up to the final decision to sign an opinion;
-
Really matters as a decision making condition.
-
Each of these processes showcase strategic action evidence
-
And interactions on the part of the justices.
-
Importantly, justices are constrained by outside forces;
-
Such as Congress, who can overturn their rulings, and,
-
The President, who can change the Court makeup.
-
At the very least, new appointments may be mortis,
-
When there is an obvious faction of justices,
-
Overturning Congress…oh, “the court
-
Has often been composed of different numbers…”
-
I am curious now:
-
Was W.’s nomination of Harriet Miers,
-
Meant to be read as:
-
“Supreme Court decisions aren’t that serious…
-
‘re just a bunch of legal writers…”
-
That’s why justices act in such a way,
-
That promotes their policy preferences,
-
Beyond simply voting according to their values,
-
We can say.
- Tell me about Hammond, Bonneau, and Sheehan (2006).[21]
-
Charles joined the conversation:
-
They integrated the attitudinal and rational choice models.
-
They took issue with several of the underlying assumptions,
-
Concerning the attitudinal model
-
And it’s limited empirical evidence,
-
Regarding the processes and stages,
-
In addition to the final vote’s prominence.
-
In fact, there is a dearth of reliable and valid evidence,
-
To support either of the models adequately.
-
They examined each stage of the Court’s,
-
Decision making process that distinguished
-
Between strategic and sincere decisions,
-
At each stage in the institutional process.
-
‘Twas the first comprehensive, rigorous,
-
And systematic model of Supreme Court decision making.
-
‘Twas consistent with their integrated model,
-
As both sincere attitudes and strategic behavior were found,
-
To affect decision making at each stage of the process.
-
Here was the empirical ground.
-
Indeed, the evidence strongly supported the rational,
-
Strategic justices and the strong impact of
-
Institutional factors on decision making…
-
Much more than the effect of sincere attitudes,
-
Or the original attitudinal model of,
-
Supreme Court decision making.
- And refresh my memory, please,
- What is the attitudinal retort to these?
-
Harlan lowered his chin to begin:
-
Segal (1997) conducted a study comparing
-
The attitudinal model to the rational choice model,
-
By examining the votes of Supreme Court justices,
-
In cases decided between 1947 and 1992.
-
Again, the institutional arrangement,
-
Allows for the S.C. Justices to be independent,
-
Of the rational model’s strategic miscue!
-
There are lifetime appointments.
-
Justices are not politically accountable.
-
The Court is an agenda decider of last resort.
-
The public, President, and Congress know this force!
-
The Supreme Court is a fortress!
-
In the end, only their preferences matter,
-
To the members of the Court!
-
Hence the justices vote their sincere preferences;
-
Without any strategic concerns,
-
Within the process in use![22]
- Understood.
- But what more of the rational choice model?
-
Fred took his turn:
-
Spiller and Gely (1992) found that changes in the ideology,
-
Of relevant congressmen influenced cases,
-
Involving the National Labor Relations Act,
-
To the same extent that changes in ideology,
-
Of Supreme Court justices did—in fact.[23]
-
In this way, the Supreme Court’s decision making,
-
Is significantly influenced by congressional preferences;
-
A rational choice act.
- Who, from this, did detract?
-
Earl did react:
-
Segal (1997) attacked, [24]
-
The methods they used to attract,
-
More research to this decision making tract.
-
Segal re-worked several of their lines of research, looking back,
-
In addition to conducting his own independent research, to track,
-
Whether or not their conclusions are universal—to interact
-
With other areas of law outside of labor relations—or in fact,
-
Was this another single-case artifact!?
- And the evidence? The data impact?
-
There is evidence of strategic behavior, but,
-
The majority of the evidence supported the concept that,
-
The justices overwhelmingly voted their sincere values,
-
And attitudes on the stand.
-
So the “attitudinal model” is the unambiguous “winner”
-
Between the two as an indicator of judicial decision making,
-
Segal demands. [25]
- What makes the rational model so different from,
- The attitudinal model under consideration?
-
Warren smiled widely:
-
Bergara, Richman, and Spiller (2003) were dissatisfied.[26]
-
For there were apparently contradictory findings,
-
In the studies conducted by Spiller and Gely (1992),
-
And Segal in 1997. Meaning,
-
Science itself was unhappy.
-
Bergara et al. see the attitudinal and rational choice model,
-
Like twin brothers.
-
They appear the same but also share,
-
Profound distinctions.
-
Under the attitudinal model (Segal),
-
Judicial decisions are unfiltered reflections,
-
Of sincere attitudes and ideology unaffected,
-
By any other considerations.
-
Under the rational choice model,
-
Judges are forward-looking political actors,
-
Who consider the potential reactions,
-
Of their policy competitors.
-
So they developed an econometric model to estimate,
-
The determinants of Supreme Court decisions,
-
Based on the model devised by Spiller and Gely (1992),
-
And applied it to analyze Segal’s (1997) data too.
-
Several findings were consistent with the attitudinal model;
-
Justices’ ideologies substantially do influence,
-
Their final decisions in the end.
-
However, they also found that the Court
-
Is often politically restrained, especially by Congress;
-
Although the extent to which the Court feels constrained,
-
Does vary over time.
-
Finally, when the Court was constrained,
-
It responded by acting strategically.
-
Thus justices do act strategically,
-
At least some of the time,
-
Which is enough to reject the attitudinal model,
-
As the best and solo winner,
-
As Segal did chime.
-
Further, they discounted Segal’s findings,
-
As the result of certain biases.
-
In the end, the rational choice model was significant,
-
As an explanatory model for scientists.
- Yet Segal and Spaeth in 2002 concluded;[27]
- Justices truly do not need to act strategically,
- There is no real force there anymore…
- ‘Tis uber rare that both chambers of Congress,
- And the president—
- Will unify against the Court, for sure.
-
These are partisan days.
- Furthermore, Segal and Spaeth argued;
- Justices take advantage of framing the issue,
- And the decision in their opinions,
- Making them less likely to be overturned,
- Because the decision as framed makes legal sense.
- Lastly, Segal and Spaeth claimed;
- Small changes in the rational choice model, say,
- Including justices’ preferences in the model,
- When other researchers had left them out,
- Made institutional constraints on outcomes—
- Not significant. Thus, keep the doubt!
- They concluded that, at all stages of the decision making process:
- “only the attitudinal model’s explanation [of Court decisions]
- is well supported by systematic empirical evidence.”[28]
-
William was curious:
-
What is the impact of public opinion?
-
Doesn’t it matter to this political sphere?
-
What’s the scholarly opinion cheered?
-
The professor paused,
-
And repeated:
-
“Public opinion, public opinion…”
- Is the Court a countermajoritarian institution?
- I mean, does it thwart the majority will of the people,
- And their elected representatives when it overturns,
- A legislative act. Doesn’t this cause upheaval?
- From the haystack—the former is the needle.
-
John eagerly contributed:
-
In fact, “almost all constitutional scholars
-
and democratic theorists agree
-
that the Supreme Court is,
-
either in process or in substance,
-
a countermajoritarian institution.”[29]
-
We see no public accountability.
-
Marshall broke in:
-
Although the Court is countermajoritarian in form,
-
It does not necessarily ignore,
-
The opinions of the majority,
-
Of the people.
-
This substance;
-
Let us explore.
- What about Dahl?
-
Earl spoke up:
-
Dahl (1957) argued that the Court,
-
Was less countermajoritarian in practice than thought.
-
Indeed, policy outputs of the Court,
-
Likely did conform to the policy preferences,
-
Of the majority in the long run.[30]
-
In fact, American politics and policymaking
-
Is dominated by relatively stable and enduring
-
National electoral coalitions, and the Court supports
-
The major policies of the coalitions reassuring,
-
They are not so countermajoritarian in their procuring.
- Have scholars affirmed or rebuked Dahl?
-
Marshall’s voice was soft yet strong:
-
Scholars have supported Dahl’s (1957) hypothesis.
-
The Court’s reputation as a countermajoritarian institution,
-
Has been greatly exaggerated.
-
Barnum (1985) found that the so-called “activist” Court
-
Generally had the support of the majority, or,
-
The support was trending in a positive direction. [31]
-
When it ruled to protect minority rights, in addition,
-
Smaller courts were reluctant to rule for minority rights,
-
And usually abided by stare decisis.
-
But that doesn’t mean that the Supreme Court ignored civilians.
-
Therefore, even during its most “active” time,
-
As a countermajoritarian institution,
-
The Court most often ruled in line with public opinion!
-
Harlan spoke brightly:
-
Marshall (1989) the scholar—not the one in this class,
-
Marshall laughed.
-
Conducted an ambitious and comprehensive study,
-
Of public opinion and the Court along this path.[32]
-
He examine 146 situations from the mid-1930s to 1986, and,
-
All or part of a Supreme Court decision could be matched,
-
With a specific nationwide public poll item.
-
To be sure, in 63% of these decisions,
-
The Court agreed with the polls,
-
Making the Court “roughly as consistent with
-
Public opinion as other U.S. decision makers.”[33]
- Is public opinion direct or indirect?
-
Earl’s voice burgeoned:
-
According to Dahl, the Court responds to public opinion since,
-
The President may “tip the balance on a normally divided Court.”[34]
-
This “indirect” impact of public opinion on judicial decision making,
-
Is now widely accepted by Court scholars; yet more troublesome,
-
Is the issue of whether public opinion “directly” impacts,
-
The Court apart from changes in membership.
-
The Professor felt left out,
-
And so took back the conversation:
- Mishler and Sheehan (1992, 1996) pointed out two ways,
- That the Court could be directly impacted by public opinion:
- (1) Justices are aware that the Court is a political institution
- Whose authority depends on public deference and respect,
- This is the “political adjustment hypothesis;” or,
- (2) Judicial values and preferences can change over time,
- Either in response to fundamental changes in public opinion,
- Or as a result of the underlying social forces that caused
- The change in public opinion, which is called,
- The “attitude change hypothesis” or “conversion hypothesis.”
- Now class, must justices consider the possibility,
- That Congress or the president will overturn their decisions,
- Or that the decisions will be improperly enforced indefinitely?
- If so, wouldn’t institution-minded justices want to maintain,
- The legitimacy of the Court and therefore want to evade,
- The public embarrassment of defeat to be overplayed,
- By the accompanying weakening of the Court to pervade?
-
John knew the feeling:
-
Justices may adjust their decision slightly and brave,
-
A compromise in order to evade,
-
Active political opposition,
-
By paying attention to public opinion.[35]
-
In this way, the rational choice model is supported,
-
By the thesis that public opinion does directly impact,
-
The Justices’ decision making as the justices,
-
Are necessarily acting strategically,
-
In order to integrate public opinion facts.
-
Earl smiled and advanced:
-
Mishler and Sheehan (1993) are strong proponents,
-
Of the direct impact of public opinion,
-
On the Court decision making process.[36]
-
They examined Supreme Court decisions made during,
-
1956-1989, and using,
-
Stimson’s (1992) “public mood” index to measure,
-
The ideological currents of the public; they found this treasure:
-
Trends in Supreme Court decisions and,
-
The liberalism of the public mood corresponded closely,
-
With shifts in the public mood slightly,
-
Ahead of associated changes in the Court’s liberalism—brightly,
-
There is a reciprocal relationship between public mood,
-
And the Court’s ideological tenor; precisely,
-
Each factor influenced the other nicely.
-
They concluded that the impact of public opinion,
-
Is partially indirect when mediated through its impact,
-
On the changing membership of the Court,
-
But is also partially direct, independent of,
-
Membership change in the Court make-up.
-
Prior to 1981, when the Court’s ideology is viewed,
-
To substantially diverge from public mood,
-
The Court should be seen as an institution sensitive to,
-
Majority opinion and changes in public mood,
-
Albeit after a five-year lag ensues.
-
Harlan smiled at Earl,
-
And continued the dialogue:
-
Norpoth and Segal (1994) criticized the methodology used,
-
In the study Earl examined.
-
They reanalyzed the data using their own model and found;
-
No evidence of a direct path of influence from public opinion,
-
To the Court’s decision making process.
-
They attributed any changes in judicial behavior to,
-
Ideological shifts on the Court as a whole due to new,
-
Appointments by the president, consistent with,
-
The indirect model of influence.[37]
-
Earl was not amused:
-
Mishler and Sheehan (1994) responded by defending,
-
Their methodology and their direct influence findings.
-
Harlan shrugged.
-
And so Earl continued:
-
Mishler and Sheehan (1996) later expanded their research,
-
To include individual-level analysis of the political adjustment,
-
And conversion hypotheses.[38]
-
Under study was the responsiveness of individual justices,
-
To changes in public opinion from 1953-1992.
-
Were some justices more responsive to public opinion,
-
Than others—perhaps to be wooed?
-
No need to woo Justice Clarence Thomas;
-
Wooing him is to show yourself to be a fool…
-
In order to prove the political adjustment hypothesis,
-
‘Twas enough to show that at least some justices,
-
Occasionally altered their decisions based on their concern,
-
With protecting the Court’s legitimacy in response to a shift,
-
In public opinion. For that, sir, you do discern!?
-
Harlan looked around,
-
And all were listening to Earl now.
-
So Earl gently continued,
-
His knowledge drawl:
-
The conversion hypothesis simply holds,
-
That the policy preferences of some justices,
-
Might change over time, and if and when so,
-
That empirical show;
-
Whether they are conscious of the change or not,
-
Is a response to either shifts in public mood; or,
-
Underlying factors that caused those shifts to boot.
-
Marshall, with his black eyes,
-
Appeared to decide:
-
Unfortunately, the authors were unable to differentiate
-
Empirically between the political adjustment,
-
And conversion hypotheses, but let’s see;
-
Consistent with both hypotheses, they showed that,
-
Long-term trends in public opinion have a direct influence,
-
On individual justices, just as they have an impact on,
-
Aggregate Court decisions.
-
And believe;
-
Not all justices that were studied were affected,
-
Yet significant effects were shown for approximately,
-
One-half of the justices, and substantial effects,
-
Were shown for one-third of the Justices confidently.[39]
-
Harlan gleefully agreed:
-
The attitudinal model is therefore incomplete.
-
It must be revised to take into account the impact,
-
Of public opinion on the Court,
-
As well as the fluid individual attitudes of justices…
-
Surely you have come, Earl, to agree?[40]
-
William of the 10th Amendment League,
-
Gaily articulated this speech:
-
Now Flemming and Wood (1997),
-
Conducted an analysis of the impact of,
-
Mass shifts in public opinion on individual justices.
-
They found that public opinion does impact decisions,
-
By the majority of individual justices in most decision areas,
-
With a relatively quick one-term lag to influence! [41]
-
Earl broke in:
-
But they also found that the magnitude,
-
Of the response to public opinion was subsidiary.
-
This they considered to be consistent with,
-
The attitudinal model now under strict scrutiny.
-
John found some middle ground:
-
So justices tend to vote their policy preferences,
-
But those preferences are not always stable,
-
And could be shifted depending on similar shifts,
-
In public opinion.
-
The professor was pleased,
-
With these erudite students.
- Of course, it should be no surprise;
- Segal and Speath (2002) also weighed in on,
- The direct effect of public opinion.[42]
- Their analysis revealed no evidence of any shifts,
- In decision making based on shifts in public opinion,
- Which would correspond to the process of preferences.
- Simply, justices’ personal policy preferences,
- Remain the only significant influence,
- On the Court and its decisions.
-
Warren got his wind back:
-
McGuire and Stimson’s (2004) independent,
-
And alternative analysis,
-
Regarding the Court’s relative liberalism,
-
In conjunction with shifts in mass public opinion,
-
Confirms much of everything.[43]
-
They found an even stronger influence of public opinion,
-
Than documented previously.
-
The Court’s policy outcomes were impacted substantially,
-
By public opinion; both directly and indirectly.
-
And, they also analyzed the effect of attitudinal factors.
-
After holding constant the significant public opinion effects,
-
Justices were still highly motivated by their personal preferences;
-
Thus the attitudinal model still projects much respect.
-
The professor needed a break:
- To conclude, the debate over why exactly,
- Supreme Court justices decide cases the way they do,
- Is still a puzzle for you and me to muse.
- Evidence has been collected and presented,
- Indeed, all three models deserve respect.
- Though most political scientists seem to agree that,
- The legal model can no longer be considered the best…
- While the other explanatory models;
- The attitudinal model and the rational choice model,
- Have not yet gained universal consensus.
- The impact of public opinion on judicial decision making,
- Is also without a definitive answer—thus shaky.
- But it is clear that some influence does occur, at least indirectly,
- So we would think that each model should incorporate,
- Public opinion when attempting to fully explain,
- Supreme Court decision making.
-
Marshall spoke up:
-
Thank you for an excellent debate.
-
But professor,
-
What about the ability of the Chief Justice,
-
Or of one particular Justice,
-
To frame the debate in order to attain,
-
The outcome right from the beginning?
-
What if John Marshall, just sayin’,
-
Was the Justice that mattered for a quarter century?
-
What would we call this model?
-
This model of governing leadership?
-
The professor was intrigued:
- Like how O’Conner framed the Roe v. Wade debate?
- How Justices at times take great pains,
- To influence a few players’ decision and obtain,
- That one particular Justice’s successful campaign?
-
Marshall felt happiness,
-
Rush through his sides:
-
It just seems to me,
-
Albeit I’m just a student;
-
That preferences are limited,
-
That public opinion matters little,
-
That the President and Congress matter littler still,
-
But that one Justice strongly convinced—
-
A noble Justice with clear vision and American charisma,
-
Could constantly craft every decision!
- Well Marshall, you could research that…
- How many decisions were due to splendid leadership…
-
I shall call it the “Leadership Model.”
-
How about that?
- Very good, young man…
- And I’m glad you are young; because,
- That study will take you a generation!
-
Perhaps my dissertation?
-
Harlan wondered:
-
Perhaps better, Marshall, as a class analysis.
-
We can divide it up by Chief Justices…
-
We can meet after the summer with our research…
-
I’ll take John Rutledge.
-
Marshall’s black eyes grew wide:
-
Perhaps a random analysis of Court cases,
-
Will suffice.
- You know the rules…
- Give credit to whom credit ‘tis due.
-
And with that,
-
The professor called for a break.
-
Would Marshall move forward with,
-
His Leadership Hypothesis?
-
Would Harlan challenge him again?
-
Oh yea, would these students; akin,
-
Breakthrough the research field and win,
-
Their place in academia?
[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.
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