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III. Applications and Empirical Evidence
IV. Policy Implications
V. Future Directions
The field of judicial politics began when scholars began to doubt that the decisions of judges were driven solely, or primarily, by the law. The legal argument has traditionally maintained that judges are like technicians, applying the law to the facts, so that the decisions they make are not based on their preferences or their emotions but on an expert reading of the law. Judicial politics insists that this account is both incomplete and misleading. The primary goal in the field is to explain what factors influence the decisions made by judges, particularly those serving on the U.S. Supreme Court and other appellate tribunals. There are other topics raised in the field of judicial politics, including the interaction between courts and other parts of the political system and the ability of judges to effect change outside their courtrooms. Although these are important and worthy subjects for study, this research paper focuses on judicial decision making, since decision making is the area in which the field has made the most progress in developing explanatory theories.
The field of judicial politics currently finds itself with three major theories competing to explain judicial decision making: attitudinal, strategic, and institutional. The origins of the field lie in the first half of the 20th century in the arguments of the legal realists. The realists argued that judges create rather than merely apply law, and they do so based on their personal conceptions of desirable policy (Clayton & Gillman, 1999; Segal & Spaeth, 1993). Political scientists took up the question of political attitudes’ influence on judicial behavior when C. Herman Pritchett (1941) published his study of the U.S. Supreme Court during the Roosevelt administration. Pritchett rejected the idea that Supreme Court justices were objective legal experts, claiming instead that “it is the primary attitudes of the majority of the Court which becomes private law” (p. 890). He analyzed the dissenting votes cast by Supreme Court justices, finding consistent patterns in the combinations of justices who dissented together, a pattern that would not have been expected if legal factors were the primary cause of judicial decisions. “Where there were divisions of opinion,” he wrote, “they appear to be for the most part explicable in terms of the opinion of the respective judges on public policy” (p. 898).
This legacy continues in the attitudinal model, which is put forth most emphatically by Jeffrey Segal and Harold Spaeth (1993) in their book The Supreme Court and the Attitudinal Model. The attitudinal model rejects the claim that judges follow the law rather than make it. Instead, the model contends the following:
The Supreme Court decides disputes in light of the facts of the case vis à vis the ideological attitudes and values of the justices. Simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he is extremely liberal. (p. 65)
The attitudinal model’s success at predicting the votes cast by Supreme Court justices made it the dominant view in judicial politics through the mid-1990s.
The strategic model of judicial behavior has emerged to challenge the attitudinal perspective. This school of thought, with its roots in Murphy’s (1964) Elements of Judicial Strategy, argues that judges prefer to vote their sincere policy preferences, but aspects of their environment modify their ability to do so. Judges cannot act on their attitudinal preferences without regard to context; they can achieve their policy goals only with the cooperation of colleagues. They must take institutional rules into account if they want to achieve their preferred policy outcomes. For example, a justice on the U.S. Supreme Court who wants to hear a case has to convince at least three others to grant certiorari. Once the case is docketed and argued, to control the majority opinion, a justice will need the cooperation of the senior justice in the majority, who assigns the opinion, and at least four other justices, who might demand concessions for their agreement. Rather than being able to act sincerely, justices must consider the likely reactions of others in order to plot a strategic course, at least some of the time. Justices may even vote against their most preferred course of action if the odds are against achieving sufficient cooperation from their colleagues. This sort of logic is offered to explain why justices are less likely to vote to grant certiorari when they are in the minority and therefore unlikely to get their way from a decision on the merits. Justices may even vote in ways that seem to contradict their preferences if doing so allows them to minimize the damage done to their ideal outcome. Thus, advocates of the strategic model contend that “we cannot understand the choices justices make— from the decision on certiorari through the choice of policy in the majority opinion—without taking into account the strategic nature of the decision-making context” (Epstein & Knight, 1998, p. 79; see also Maltzman, Spriggs, & Wahlbeck, 2000).
Because judicial decisions are not self-enforcing, judges have to consider more than just the preferences of their colleagues. Courts need cooperation from others if decisions are to be successfully implemented. Implementation may hinge on the compliance from other policymakers, such as police officers, lower court judges, and school boards. It can also depend on the voluntary choices of private citizens, who may or may not want to consume the decision— for example, women may have the right to an abortion, but unless they seek abortions and unless doctors are willing to perform abortions, that right remains unrealized. Negative reactions to court decisions from the public complicate the picture further (see Johnson & Canon, 1984; Rosenberg, 1991). Resistance to unpopular decisions may range from mere evasion to outright retaliation. Congress can override statutory decisions, remove jurisdiction over particular issues of law, or even propose amendments to override unpopular constitutional interpretations. Decisions that alienate the public increase the likelihood that Congress may resort to such measures or that the executive may decline to enforce a decision. The strategic model argues that judges will take these external factors into account, anticipating possible reactions and acting in ways designed to minimize the possibility of backlash. Since judges must adapt their behavior to avoid external threats and to accomplish what is possible under the circumstances, the model rejects the idea that votes always reflect sincere preferences. It is this contention that brings the strategic model into direct conflict with the attitudinal model’s emphasis on votes as indicators of judicial preferences.
Although the debate between the attitudinal model and the strategic model is the most prominent theoretical conflict in the field at present, there is a third model, usually dubbed historic institutionalism. While the strategic model and the attitudinal model focus on the policy goals of individual judges, the institutional model broadens its focus to the Court as a whole. Though admitting that individual concerns are important, the model sees institutional-level concerns (such as the power of the judiciary as a whole) as equally important for a full understanding of judicial politics. For example, to appreciate the role of the Supreme Court during the Civil War, it may be more important to understand the interaction between the Taney Court and the Lincoln administration than to assess the preferences of the individual Taney Court justices. Or one might follow Dahl’s (1957) path, exploring the willingness and ability of the Supreme Court to resist the policies of other policy-making institutions. From the institutional perspective, judicial politics stands to gain more by “focusing less on the policy preferences of particular justices and more on the distinctive characteristics of the Court as an institution, its relationship to other institutions in the political system” (Clayton & Gillman, 1999, p. 3).
In addition to exploring interbranch relations over time, the institutional model documents changes in internal court practices and the difference these changes have made. The idea here is that when institutional norms and rules change, judges modify their behavior in response (and for more than just strategic reasons). For example, before John Marshall became chief justice it was common for multiple justices to write opinions in each case. Once Marshall introduced the practice of a single majority opinion for the Court, a consensus norm evolved that discouraged the practice of dissenting. Conversely, a series of changes in institutional context between 1925 and 1945 fostered an increase in the filing of concurrences and dissents. The Judges Bill of 1925 gave the Court discretionary control over its docket, increasing the percentage of controversial cases the Court would hear and providing more time to consider them. At the same time, technological changes like the use of typewriters allowed for greater circulation of draft opinions. During the Stone Court, the justices began hiring an additional law clerk, and the Chief Justice was more tolerant of divergent opinions than his predecessors. All these changes encouraged the preparation and filing of more individual opinions (for further discussion, see O’Brien, 1999). The institutional approach gains the historical label in part from its emphasis on tracing such changes in institutional rules and the resulting adjustment in judicial behavior over time.
The institutional model emphasizes the effects of institutional context on judicial decisions, but in a somewhat different way than the strategic model. The argument is that institutional structures create strategic opportunities for justices seeking to advance their policy goals, but they do more than that. Institutions are made up of norms and rules that provide systems of meaning, including a sense of identity and responsibility for participants, and a logic of appropriateness that may foster concern for the institution and inhibit pursuit of personal goals. It may be helpful to think of the rules by which we play games. For example, the strategic model might stress the way that basketball players adapt to the rules in order to score as many points as possible (allowing them to increase their salary demands), while institutionalists point to passing, guarding, and other aspects of team play that benefit the group more than the individual. Institutionalists contend that judges develop normative attachments to their courts and act as stewards of their power. While advocates of the strategic model view judicial efforts to protect a court’s “institutional authority . . . as a mean to an end—a policy end” (Epstein & Knight, 1998, pp. 48–49), the institutional model posits that judges are likely to be concerned with the welfare of the court for its own sake.
Clayton and Gillman (1999) argue the following:
Institutions not only structure one’s ability to act on a set of beliefs; they are also a source of distinctive political purposes, goals and preferences. . . . With respect to Supreme Court politics, this means that the justices’ behavior might be motivated not only by a calculation about prevailing opportunities and risks, but also by a sense of duty or obligation about their responsibilities to the law and the Constitution and by a commitment to act as judges rather than legislators or executives. (p. 5)
This reintroduces the idea that law may influence judicial decision making, since fidelity to law is an important part of the judicial role. This brings the institutional model into sharp conflict with the attitudinal model’s insistence that it is not law but the political preferences of the judges that drive judicial decision making. Of course, the institutional model does not suggest that personal attitudes do not matter, but it does insist that “judicial values and attitudes are shaped by judges’ distinct professional roles, their sense of obligation, and salient institutional perspectives” (Clayton, 1999, p. 32).
III. Applications and Empirical Evidence
In developing and testing these theories, judicial scholars have followed a number of practices employed in Pritchett’s (1941) analysis of the Roosevelt Court. The primary dependent variable has been the votes justices cast, and the main argument has been that differences in voting patterns reflect differences in judges’ underlying political values or attitudes. Like many other political scientists at midcentury, judicial scholars adopted the tenets of behavioralism, which included the following beliefs: that political science should focus on phenomena that can be observed, that data should be quantifiable, that research should be directed by theory, and that prediction and explanation should be the focus of research (Segal & Spaeth, 1993). Votes could be counted, and the division among judges’ votes could be compared to test the theory that attitudes drive those divisions.
Pritchett’s (1941) study also excluded cases in which the Supreme Court had been unanimous. Pritchett suggests that different factors affect the justices’ votes in unanimous cases:
In the great majority of these ballots the decision is unanimous. In such cases, presumably, the facts and the law are so clear that no opportunity is allowed for the autobiographies of the justices to lead them to opposing conclusions. (p. 890)
It seems a bit ironic that the foundational article of the attitudinal model would argue that such a significant percentage of judicial decisions were based on legal factors. One might have argued instead that unanimous cases reflected a high degree of attitudinal convergence among the justices; there is no clear way to establish one explanation as better than the other. What is clear is that a case in which every justice votes the same way provides no within-case variation to explain. Given the difficulty of knowing how to categorize unanimous cases, it quickly became standard practice to exclude them when studying attitudinal differences among the justices.
Some of the earliest behavioral work in judicial politics linked differences in voting to differences in judges’ social background factors. The logic of this approach was that judges from similar backgrounds would have had similar life experiences, giving rise to different political attitudes and different voting behavior from judges with different backgrounds. Typical background factors include religion, social class, status of law school attended, and political party. Judicial scholars have largely abandoned the study of background factors since Ulmer (1986) demonstrated their limited utility. However, increasing diversity in federal judicial appointments has led to exploration of whether significant differences exist among the decisions of judges of different races or between the decisions of male and female judges.
Scholars also documented the degree to which Supreme Court justices voted in consistent patterns, in blocs or in ideological alignment (for example, see Schubert, 1965).A bloc occurs when two or more justices vote together at a rate at least one standard deviation above the mean for the Court as a whole, and it is taken to indicate a high degree of attitude sharing among bloc members. Ideological alignments were usually established using Guttman scaling, a technique that assesses consistency in the ideological position of the justices relative to one another. To refine the analysis, judicial scholars often broke cases down by issue type to assess the degree of attitudinal overlap between justices in specific policy areas, such as civil liberties, federalism, and economic regulation. Currently, attitudinal studies tend to array the justices along a single underlying ideological dimension, from liberal to conservative, using the relative position of the justices of the Supreme Court to predict their votes.
The attitudinal model has had significant success in demonstrating a link between the ideological position of the justices and their votes, particularly in civil liberties cases. Segal and Spaeth (1993) found a correlation of .71 (adjusted R2 of .60) between the ideological values of justices and their votes in the civil liberties cases formally decided by the Supreme Court between 1953 and 1989. Attitudinal studies have also had significant success in modeling decisions in specific areas of law where there have been enough cases to allow for statistical analysis. By exploring the interaction of attitudes and case facts, Segal and Spaeth successfully predicted 74% of justices’ votes in search and seizure cases decided between 1962 and 1989, a significant improvement over prediction based on case facts alone.
The null hypothesis in these studies was the claim traditionally made by judges and lawyers—that judicial decisions were driven by the law. The legal model of judicial decision making includes a variety of possible legal determinants of judicial decisions—the plain meaning of the words in a law, the intentions of those who adopted it, or the legal doctrines established by earlier court decisions in the same area. Judicial politics scholars have investigated each of these legal rationales advanced by judges in their opinions and found them wanting. Legal models underestimate the degree of ambiguity in the language of statutes and constitutional provisions, as well as the degree of difficulty in determining the intention behind their adoption. The records needed to divine legislative or framers’ intent may well be lost to history. Even if one has such records, neither legislatures nor constitutional conventions are unitary actors with a single intent. Thus, the search for intent is often futile, and judicial scholars find it difficult to believe that such ambiguous guidance can really determine case outcomes.
Even when legal language seems clear, judges do not always follow it. The justices of the Supreme Court have constructed limits on rights like freedom of speech, which appear absolute in the text, while finding rights, like the right to privacy and travel, which are not mentioned in the text at all.
If the Court can read rights out of the Constitution that it explicitly contains while simultaneously reading into the Constitution rights that it does not explicitly embrace, the plain meaning rule obviously fails as an explanation of what the Court has done. (Segal & Spaeth, 1993, p. 38)
The attitudinal evidence also indicts the idea that either framers’ intent or precedent determines case outcomes. Arguments based on framers’ intent and precedent are offered on both sides of most cases before the Court. In fact, the majority and dissent often refer to the very same precedent while reaching exactly opposite results. If judges on both sides of a case claim to be governed by the same legal factors at the same time, despite reaching diametrically opposed conclusions, law appears to be a rationalization rather than a causal factor (Segal & Spaeth, 1993).
A modified version of the legal model includes judicial role conceptions: the idea that judges follow the law because they believe that is what their job demands of them. The role conception explanation leaves open the possibility for attitudinal influences, since judges vary in the degree to which they believe it appropriate to act on their own preferences. Judges are sometimes explicit in contrasting what they would like to do with what they feel the judicial role allows them to do. For example, Justice Harry Blackmun voted to sustain constitutionality of the death penalty despite his declaration: “I yield to no one in the depth of my distaste, antipathy, and indeed abhorrence, for the death penalty. . . . Were I a legislator, I would vote against the death penalty” (Furman v. Georgia, 1972, pp. 405–406). The greatest limitation on judicial attitudes ought to come from the restraintist role, since that perspective views any personal or political influence on judges’ decisions as illegitimate. Gibson (1978) did find significant differences in sentencing behavior based on role conceptions among trial court judges. His analysis revealed significant correlations between the political views of activist judges and their sentencing decisions but no significant correlation between political views and sentencing decisions among those advocating restraint. Attitudinalists like Segal and Spaeth (1993), however, tend to dismiss the idea that appellate judges are restrained by role conceptions. Their argument is that justices often claim to be restrained when they are really voting to uphold policies they like. Judicial scholars in the attitudinal tradition therefore discount the argument that law plays a determinative role in judicial decisions.
Despite the predictive success of the attitudinal model and the absence of empirical tests supporting the legal model, not everyone is convinced that judicial decisions are explained by politics instead of law. Certainly judges continue to claim that their decisions are driven by legal texts, framers’ intent, and precedent. Law review articles base their explanations of court decisions on these same factors, with particular emphasis on precedent. Law school curricula stress the study of precedent and how to apply it (Clayton, 1999; Segal & Spaeth, 1999). Even some political scientists argue that precedent affects certain aspects of judicial decisions. For example, the strategic model stresses that the use of precedent has strategic benefits for judges. For example, Epstein and Knight (1998) contend that justices of the Supreme Court follow precedent because it increases the odds that future justices will respect the precedent made by the current justices and because society grants legitimacy to judicial power when people perceive the Court to be conforming its decisions to existing case law. Judges may rely on precedent because they believe it increases the odds that others will perceive their decisions as legitimate and comply with them.
Segal and Spaeth (1999), however, remain doubtful, finding few instances in which Supreme Court justices shift their positions in an area of law to conform to precedents with which they initially disagreed. Of course, Segal and Spaeth do not count decisions in which justices continue to follow precedents decided before they ascended the bench nor those with which they initially agreed, since in such cases there is no clear way to establish that precedent is restraining a contrary personal preference. This move, although understandable on behaviorist grounds, eliminates from the test of precedent’s influence the vast majority of instances in which the justices act in ways that are consistent with precedent. Institutionalists are more likely to conclude that precedent has some influence on the development of judicial decisions. Institutionalists argue that while judges are influenced by their policy preferences, they are also qualitatively different from other policymakers. Judges are socialized to revere precedent. The arguments they hear from lawyers and other judges are freighted with precedent, and judges are expected to conform their decisions to its dictates. Precedent may not determine the vote, but it may nevertheless influence case outcomes by affecting the array of options presented to judges and helping them distinguish between legitimate and illegitimate policy alternatives.
Based in part on the idea that the acid test of a scientific model is its predictive abilities, a group of researchers recently conducted a head-to-head test to compare the ability of legal experts and political science models to predict the outcomes of Supreme Court cases during the 2002 term (“Symposium,” 2004). The political model used decision trees based on a variety of political factors, including ideological direction of the lower court ruling, type of parties to the case, the legal issue raised, and the likely positions of other justices. The legal experts were law professors or highly specialized attorneys, several of whom had clerked for the Supreme Court, who were asked to predict case outcomes in up to three cases in their areas of expertise (for further details, see Washington University Law, 2002).
The political science model was more successful in predicting case outcomes (75% to 59.1%), while the legal experts were slightly more successful in predicting the votes of individual justices (67.9% to 66.7%). The legal experts did particularly well relative to the political model in technical areas of the law such as administrative procedure. From this, Epstein (“Symposium,” 2004) concludes that each perspective has something to learn from the other: “What the results from the project seem to suggest is that legal academics who stress principles and neglect politics in their explanations of case outcomes do so at their own peril,” but the success of legal academics in predicting individual justices’ decisions “suggests that political scientists concerned with explaining the range of judicial decisions can no more afford to neglect law than law professors can ignore politics” (p. 757). Thus, scholars have found that there is something to be gained from combining approaches to gain a more complete understanding of judicial behavior.
Something may also be gained from combining aspects of the three main models of decision making. For example, when it comes to understanding the assignment of majority opinions on the Supreme Court, the effects of ideology, institutional norms, and strategic calculation are all apparent. Opinion assigners are more likely to assign important cases to ideologically similar colleagues, but they must also take into account the norm of relative parity in workload among the justices (Maltzman et al., 2000; Segal & Spaeth, 1993, chap. 6). When the Court is closely divided, the assigner may also wish to assign to the marginal member of the majority coalition to shore up the likelihood of having the case decided in the preferred direction. Emphasizing only one theory to describe such behavior leaves too much unexplained.
Similarly, strategic and institutional approaches have offered convincing accounts of individual cases in which Supreme Court justices sacrificed their personal preferences in the face of threats to the institution. Marbury v. Madison (1803), Ex Parte McCardle (1867), and Barenblatt v. United States (1959) all provide examples of courts backing down in the face of a hostile and threatening Congress (Epstein & Knight, 1998, chap. 5). Though they accept the separation of powers story in a limited number of cases, attitudinalists emphatically reject the idea that the Supreme Court regularly takes the preferences of other branches into account in the typical case. Although there is some evidence that the Court responds to the influence of the solicitor general, in the aggregate attitudinal evidence seems to explain much of Supreme Court voting quite well. In head-to-head tests, the attitudinal model outperforms models based on strategic calculation related to the separation of powers. For example, using a pooled cross-sectional time series analysis for 1947 through 1992, Segal (1997) finds that ideology is consistently better at predicting justices’ votes than a variety of separation of powers models. But the ability of the justices to vote their preferences depends on the Court’s institutional position. In fact, as Segal and Spaeth (1993) admit, the relative freedom of the justices to ignore strategic considerations may itself be a function of the strategic position in which the modern Supreme Court finds itself. The Court has not always enjoyed its current level of insulation from external political pressures. Strategic and institutional models can contribute an appreciation for the way the Court’s strategic position has changed over time, including strategic retreats as well as current strengths as part of a larger story of institutional development. This kind of analysis may also facilitate comparative work, since variation in the protections provided to judicial independence in other countries could be compared with that in the United States.
It may also be worthwhile to combine the three models in exploring the behavior of judges on lower courts. Although there may be few external constraints on the ability of Supreme Court justices to act on their preferences, the judges on the federal courts of appeal may be more constrained. Their institutional position below the Supreme Court means that appeals court judges can be overturned on appeal. This may explain why they evince relatively high rates of adherence to precedent (Songer, Segal, & Cameron, 1994). Strategic calculations may also influence the way appeals court judges interact with their colleagues, though currently ideological distance is seen as a better predictor of an appellate judge’s decision to dissent (Hettinger, Lindquist, & Martinek, 2004).
Differences in the influence of public opinion on judicial decision making are also apparent depending on the level of court examined. Despite its reputation for protecting minorities against the majority, the Supreme Court has been shown to reach decisions that match reasonably closely with public opinion (Marshall, 1989; Mishler & Sheehan, 1993). This correlation between the Court’s decisions and public opinion does not prove causation; although it is possible that the justices respond directly to public opinion, it may well be that the justices merely share the views of their contemporaries among the public or that public opinion filters through to the Court as a result of the appointment process (Dahl, 1957; Norpoth & Segal, 1994). No one has yet been able to establish beyond doubt that public opinion actually drives case outcomes at the Supreme Court level.
The data are more supportive of a causal relationship among state judges. The public has no direct role to play in electing or retaining federal judges, but voters are involved in selection and retention of most state judges. Voters tend not to be too knowledgeable about candidates in judicial elections, and most judges are reelected by significant margins (Aspin & Hall, 1994; Hall, 2001). Even so, scholars have been relatively successful in demonstrating a link between public opinion and judicial behavior at the state and local levels. For example, Gibson (1980) demonstrated that Iowa judges who rode circuit decided cases differently in different courthouses and that these differences conformed to differing community norms. Kuklinski and Stanga (1979) found that length of sentence judges handed down in marijuana cases moved in the direction of their county’s election results after a referendum was held on decriminalization. Such behavior might be explained by a democratic role conception among judges, but scholars are more likely to attribute such shifts to strategic calculation. Judges want to keep their jobs, so even the possibility of electoral defeat can motivate them to stay close to public opinion (Hall, 1992).
Just as the same factors may not have the same effects in all courts, the same factors may also work differently depending on changes in context. There is an encouraging trend in recent research to emphasize how changes in context can change the impact of causal factors on judicial behavior. More nuanced models have demonstrated that the impact of electoral pressures on judges need not be the same across an entire judicial career but that judges are more likely to change their sentencing decisions when cases are closer to the next election (Huber & Gordon, 2004). Rather than exploring the connection between public opinion and outcomes in all cases, McGuire and Stimson (2004) distinguish the effects of public opinion in cases based on whether the Court is overturning or affirming rulings of the lower courts. More precise specification of this sort is most welcome.
IV. Policy Implications
That political factors influence judges’ decisions seems certain, even if there continues to be disagreement as to the exact extent of that influence. The next question is what should be done with that information. One area where this knowledge might be put to good use is the process of evaluating appointments to the Supreme Court and the federal courts of appeal. Clearly politicians are aware of the influence that judges’ political views are likely to have on their decisions. Presidents have a tendency to select like-minded nominees whom they consider prone to decide cases in ways that will please them and their supporters, and senators have a tendency to base their confirmation votes on the same criteria (Epstein & Segal, 2005; Segal & Spaeth, 1993, chap. 4). At the same time, it is usual for presidents and senators to claim that nominees are chosen and evaluated on purely legal qualifications.
It would be refreshing if the findings about the link between attitudes and decisions could inspire greater candor from all parties to the nomination process. Judicial nominees could provide much more insight into the kind of decisions they would produce if they were more forthcoming during their confirmation hearings. Judicial reluctance to discuss hypothetical cases, combined with the failure of Robert Bork’s nomination after he openly discussed his views at his 1987 confirmation hearings, however, suggest that we are unlikely to experience this sort of confirmation-hearing conversation any time soon.
V. Future Directions
Research into judicial decision making has benefitted from the availability of two major sources of data about the decisions of the Supreme Court and the federal courts of appeal. The ability to develop models predicting Supreme Court voting behavior was facilitated by the creation of the Supreme Court Database, which provides data classifying every vote cast by each Supreme Court justice in every case argued between the 1953 and 2008 terms. The database was created by Harold Spaeth with a grant from the National Science Foundation and made available for general use in the late 1980s. The current database houses 247 pieces of information for each case, including information on the path cases take to get to the Court, legal issues presented, the direction of justices’ votes, authorship of opinions, and case outcomes (for further information, see the Supreme Court Database website). This greatly expanded the ease with which scholars can produce studies of the Supreme Court.
Similarly, the Judicial Research Initiative has significantly eased research into the decisions of the Federal Courts of Appeal. The Appeals Court Database provides information for a randomly selected sample of decisions reached by the federal courts of appeal between 1925 and 2002. There is also a Phase II data set that includes every court of appeal case that was subsequently reviewed by the Supreme Court, allowing for comparison between the decision of the Supreme Court and the lower court. Donald Songer was the original primary investigator for the Appeal Court Database. Ashlyn Kuersten and Susan Haire extended the dataset, and Ashlyn Kuersten and Todd Curry are responsible for flipping the data so that it is available by individual judge’s vote as well as by case (for further information, see the Judicial Research Initiative website). Both of these provide a wealth of opportunities for scholars.
One issue that needs further attention from judicial scholars is the question of how to measure the concept of attitudes. Initially, attitudes were inferred from voting alignments without any independent measure of attitude itself. To improve the measurement of attitudes, the field has adopted Segal and Cover scores, which use newspaper editorials to generate a measure of each new Supreme Court justice’s ideological position. Since this score is a snapshot of the justice’s ideology at the time of nomination, it is an inexact measure of judicial ideology over time. Since there is considerable evidence that justices’ attitudes are not static over time (Epstein, Hoekstra, Segal, & Spaeth, 1998), this means the field has significant specification problems in regard to the primary independent variable. One can of course measure ideology by using the percentage of the time a judge votes liberally or conservatively, but that leaves scholars inferring attitudes from votes again. The problem is compounded by the fact that the ideological position of the cases changes as well (Ulmer, 1981). The field has made progress in dealing with this issue. For example, cases are now often Baum corrected, referring to Baum’s (1992) practice of comparing the degree to which justices vote liberally in one period to the degree to which they voted liberally in earlier years (also see Epstein et al., 1998; Martin & Quinn, 2002). Nevertheless, more progress needs to be made in assessing the ideological stimulus points of the cases and the ideological positions of the justices relative to them.
Another issue that needs to be addressed is the narrowness of the main dependent variable. Votes clearly matter, but so do the opinions that judges write to explain those votes. Cases present more than yes-or-no opportunities for policy making. Policy options emerge from a variety of sources: legal briefs, lawyers’ arguments, and justices’ own (or their clerks’) legal research. Opinions do more than provide rationalization for policy outcomes. Opinions provide insight into the way judges parse their options— opinion writers will offer some doctrines as justification for their decision, while rejecting others. The choices contained within these opinions matter. They provide guidance to attorneys and lower court judges about the rules to be used to resolve other cases. Opinions also signal future litigants about the direction of judicial preferences, signals to which interest groups have been seen to respond in order to advance their own political agendas through the courts (Behuniak, 1991; Kobylka, 1987). Although votes are important, they are far from the only important output of judicial decision making. More research needs to be done on the factors that influence judges in sorting through competing policy choices and crafting opinions.
Judicial politics needs to broaden its approach to the issue of judicial motivation as well. The attitudinal and strategic models (which encompass the majority of scholars in the field) both visualize judges as motivated exclusively by policy goals. As Baum (2006) points out, most explanations of judicial behavior “share a major limitation. Each model portrays Supreme Court justices (and, in some formulations, judges on other courts) as single-minded seekers of good legal policy, whether that means good policy or some combination of good law and good policy” (p. 14). If this were true, Baum says, jurists would be fundamentally different from other human beings, whose actions are affected by a variety of motivations. Most human beings are influenced by a combination of concerns—for career aspirations, financial gain, and workload control, among others. Baum concludes that one important part of judicial motivation is the desire to “maintain the esteem of people . . . who are important to them. They want not just to make good legal policy but to be perceived as doing so” (p. 159). This means that judicial actions should be interpreted as reflections of their sensitivities to reactions from a variety of audiences, including colleagues, social and professional groups, journalists, and legal academics. Some iterations of the institutional model go beyond the traditional emphasis on policy goals, including motivations based on institutional stewardship. Baum is nevertheless on firm ground in arguing that the dominant concept of motivation in judicial politics is overly narrow.
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