Whither the Attitudinal Model?
NEW INSTITUTIONALISM AND JUDICIAL DECISION-MAKING:
A COMPARATIVE ANALYSIS OF EXPLANATORY MODELS AT THE U. S. SUPREME COURT AND
U. S. COURT OF APPEALS
Donald M. Gooch, University of Missouri
William Schreckhise, University of Arkansas
Hypotheses NULL: The attitudes of judges and
justices at the Supreme Court and Court of Appeals do not differ substantively.
ALTERNATIVE: The attitudes of judges and justices explains significantly less of the variation in judicial decision-making at the Court of Appeals level than it does at the Supreme Court level.
Hypotheses (con’t) NULL: Attitudinal variables fail to significantly account for
variation in judicial decision-making ALTERNATIVE: Attitudinal variables significantly account
for variation in judicial decision-making
NULL: Strategic variables fail to significantly account for variation in judicial decision-making
ALTERNATIVE: Strategic variables significantly account for variation in judicial decision-making
NULL: Constitutive variables fail to significantly account for variation in judicial decision-making
ALTERNATIVE: Constitutive variables significantly account for variation in judicial decision-making
Importance It is important to answer these kinds
of questions: because it extends our understanding
of judicial decision-making to other levels of analysis
because it provides a better predictive tool for decisions in the courts
because it has implications for the democratic nature of the U.S. government
Literature Herman Pritchett’s landmark study on
the relationship between judicial attitudes and decision-making paved the way for future scholars.
Segal & Spaeth challenge the ‘legal model’ and suggest that the most significant causal variable in judicial decision-making is the attitudes of judges/justices.
Legal Model The legal model posits that judges are neutral administrators
applying the law, and decisions are determined by the legal precedents, statutes, and the constitution as opposed to judge-centered variables.
However, there is some dispute over whether the legal model is an actual predictive model rather than simply an expressed ideal.
CONSTITUTION,
STATUTES, LAWS, AND LEGAL
PRINCIPLES
DECISION IN THE CASE
Attitudinal Model The attitudinal model posits that
judicial attitudes (personal policy preferences of the judges) are the most significant explanatory factor in judicial decision-making.
ATTITUDE
OF JUDGE
DECISION IN THE CASE
Strategic Model The strategic model suggests that attitudes significantly
determine votes, but that these policy preferences are constrained and influenced by the ‘institutional setting’ in that judges must bargain with and accommodate fellow judicial actors (voting fluidity) in attempting to see their preferences realized in judicial outputs.
ATTITUDES OF
OTHER JUDICIAL
ACTORS
ATTITUDE OF JUDGE
Strategic Bargaining and Accommodation DECISION
IN THE CASE
Constitutive Model The judicial ‘perspective’ determines votes
according to the constitutive model. This mind-set is influenced by the institutional role of the judge and results in decisions made based on such concepts as stare decisis, a sense of obligation to the institution itself, normative considerations, and institutional ‘missions.’
INSTITUTIONAL
INFLUENCES ON JUDGE
VIEWPOINT ON JUDICIAL
ROLE
DECISION IN THE CASE
Judicial Decision-Making Continuum
ATTITUDINALMODEL
STRATEGICMODEL
CONSTITUTIVEMODEL
LEGALMODEL
ATTITUDESDETERMINEVOTES
ATTITUDESDO NOT
DETERMINEVOTES
JUDICIAL DECISION-MAKING MODELSCONCEPT Legal
ModelAttitudinal Model
Strategic Model
Constitutive Model
POLITICALATTITUDES OF JUDGES
Non-factor in judicial decision-making
The explanatory variable in judicial decision-making
Most important explanatory variable, but constrained by strategic factors
A significant explanatory variable, but other variables as significant
PRECEDENTS, STATUTES, AND CONSTITUTION
The explanatory variable in judicial decision-making
Non-factor in judicial decision-making
Barriers that must be over-come or accommodated
Institutional influences on judicial mind-set
OTHER JUDICIAL ACTORS
Irrelevant in judicial decision-making
Not a significant factor in judicial decision-making
Potential allies to bargain with and accommodate
Part of the institutional context
INSTITUTIONAL MIND-SET
Viewpoint of the judge as decision maker dependent on the law
Not a significant factor in judicial decision-making
Not a significant factor in judicial decision-making
An important variable in judicial decision-making
CASES Disputes among litigants resolved according to apolitical interpretation of the law
Opportunities to advance political preferences and make significant impacts on important policies
Opportunities to advance political / policy preferences constrained by preferences of other judges on the court
A setting for applying their culturally- developed interpretive methodology
BARGAINING AND ACCOMMODATION
Non-factor in judicial decision-making
Not a significant factor in judicial decision-making
How judges attempt to persuade or be persuaded by fellow judges in decisions.
Not a significant factor in judicial decision-making
JUDGE MOTIVATION Impartial application of the law
Personal policy preference of the judge
Rational pursuit of policy preference in strategic context
Internalized institutional mission w/n historical context
Assumptions in Judicial Decision-Making Models
Ideological values are static and stable over time.
Variation in cases in terms of precedential value, policy importance, history of precedent, do not significantly impact the explanation of judicial votes.
Variation within an issue area in terms of the ideological implications of the case do not significantly impact the explanation of judicial votes.
Data The data on Supreme Court justice
decisions was extracted from the USSC Judicial Database and includes cases coded by ideological direction of the vote and a variable on the ideological scores of the justices.
The cases were selected based on the civil liberties issue area (1st Amendment, criminal procedure, etc.)
Data (con’t) The Court of Appeals cases were drawn from
the USCA database and includes cases coded by the ideological direction of the vote.
This data was merged with the ‘Auburn’ data that contained various demographic variables (including a dummy variable on the party of the appointing president) on the judges at the USCA level.
The cases were selected based on the civil liberties issue area (1st Amendment, criminal procedure, etc.)
Data (con’t)
The Poole-Rosenthal NOMINATE scores are 2-dimensional dynamic coordinates estimated such that each legislator’s point is allowed to move as a linear function of time as measured by the Congress number.
The NOMINATE scores for the presidents, House, and Senate were obtained from Dr. Poole’s website at:http://voteview.uh.edu/default_nomdata.htm
The D NOMINATE scores were utilized in this study as they are comparable across Congresses. See also Poole & Rosenthal, 1998.
Methodology The model for the Supreme Court utilizes a MLE
statistical analysis by regressing the independent variables (attitudinal, strategic, etc.) along the dichotomous variable of the direction of the justices’ votes.
The model expresses the dichotomous i as a non-linear function of the explanatory variables X1 +…Xi (Gujarati, 1995). This is the conditional probability that the event will occur given X1 +…Xi that is: Pr (Yi = 1 ½ X1 +…Xi).
Methodology (con’t)LOGIT () = + 1X1 + 2X2 + 3X3 + 4X4
= 1 if predicted vote is a liberal vote = 0 if predicted vote is a conservative vote
X1 = Attitudinal Variable [Segal & Cover ideological scores for USSC Justices ranging from –1 (conservative) to +1 (liberal)]
X2 = Strategic Environment variable [the ideological balance of the Supreme Court ranging from –9 (conservative) to +9 (liberal) minus the ideological score for the justice whose decision is being predicted]
X3 = Constitutive Environment variable (public approval of the Supreme Court ranging from 0 to 100)
X4 = Strategic Environment 2 [median chamber nominate score for the House ranging from a –1 (conservative) to a + 1 (liberal)]
Methodology (con’t) A similar non-linear regression model was
utilized to test the judicial decision-making model in the Court of Appeals data set.
At both levels of analysis: 1) a parsimonious attitudinal model was
estimated, 2) a model including attitudinal and strategic variables was estimated, and 3) a model specifying attitudinal, strategic, and constitutive variables was estimated.
Methodology (con’t)LOGIT () = + 1X1 + 2X2 + 3X3 + 4X4
= 1 if predicted vote is a liberal vote = 0 if predicted vote is a conservative vote
X1 = Attitudinal variable (judge ideology using presidential nominate proxy scored twice plus the median chamber nominate score for the Senate at the time of the judge’s appointment) ranging from - 3 (conservative) to + 3 (liberal)
X2 = Strategic Environment variable {the ideological balance of the Supreme Court ranging from –9 (conservative) to +9 (liberal)}
X3 = Constitutive Environment variable (public approval of the Supreme Court ranging from 0 to 100%)
X4 = Strategic Environment 2 variable [median chamber nominate score for the House at the time of the court decision ranging from –1
(conservative) to +1 (liberal)]
Average Ideological Vote In Civil Liberties Per President - USCA
Appointing President
N of Judges Appointed
Ideological Proxy Value
Civil Liberties Vote (mean)*
B. Harrison 96 1.00 .53
Bush 65 1.00 .30
Carter 2566 .00 .54
Cleveland 1 .00 .00
Coolidge 2030 1.00 .54
Eisenhower 5397 1.00 .62
F. Roosevelt 5157 .00 .53
Ford 696 1.00 .61
Harding 278 1.00 .60
Hoover 2324 1.00 .53
Kennedy 2342 .00 .56
L.B. Johnson 4698 .00 .56
McKinley 3 1.00 .67
Nixon 3796 1.00 .61
Reagan 1426 1.00 .66
T. Roosevelt 389 1.00 .37
Taft 113 1.00 .66
Truman 2609 .00 .55
Wilson 1306 .00 .54
* The civil liberties mean vote extends from a value of 0 (liberal vote) to a value of 1 (conservative vote).
Average Ideological Vote In Civil Liberties Per President - USSC
Appointing President
N of Justices Appointed
Party of President
Predicted Ideological Score (mean)*
Civil Liberties Vote (mean)*
Roosevelt 5 D .598 .2914
Truman 3 D .00 -.0948
Eisenhower 5 R .55 .1384
Kennedy 2 D .25 .4776
Johnson 2 D 1.00 .6208
Nixon 4 R -.78 -.4626
Ford 1 R -.50 .0039
Reagan 4 R -.588 -.5502
Bush 1 R -.34 .0610
* The civil liberties mean vote extends from a value of 1 (liberal vote) to a value of 0 (conservative vote).
Results A great deal of the variation in voting
remains unexplained by the attitudinal model (ex. Justices Stevens, Scalia).
The attitudinal model does not fully explain the votes of justices at the USSC level, leaving significant room for strategic and constitutive theories as explanative factors in the judicial decision-making of justices on the Supreme Court.
Results (con’t) While the estimates of strategic influence
were significant at the USSC & USCA, they did not offer any substantial leverage on the voting of justices above that offered by the attitudinal model.
The USCA models offer no explanatory value above that of the modal classifications. However, strategic and attitudinal variables are significant.
The Constitutive Variable was insignificant at the USSC and USCA levels.
Results (con’t) The smaller percentage of the variation in the
civil liberties vote, the more conservative nature of the voting, and the smaller variation from president to president (see Figure 9) are all differences in the USCA data as compared to the USSC data that may be due to constitutive factors or strategic influences.
While the attitudinal model presents a statistically significant explanation for decision-making at both the USSC and USCA levels of analysis and is, the measure utilized here does not explain variation in the DV at the USCA.
Results (con’t) The smaller percentage of the variation in the civil liberties vote, the more
conservative nature of the voting, and the smaller variation from president to president (see Figure 9) are all differences in the USCA data as
compared to the USSC data are differences
that may helpexplain the
attitudinal model’sfailure at the
USCA.
Figure 9 - Civil Liberties Vote Average* per PresidentUSSC & USCA
-1.00
-0.50
0.00
0.50
1.00
1.50
Cleve
land
Harris
on
McK
inle
y
Teddy
Taft
Hardin
g
Coolidge
Hoover
FDR
Trum
an
Eisen
hower JF
KLBJ
Nixon
Ford
Carte
r
Reagan
Bush
USSC
USCA
Cautionary Tale Problems with Analysis
Models are under-specified Models do not utilize the same
measure for judge ideology Measure of the direction of the case is
blunt (conservative/liberal) Does not account for the full range of
the types of judicial decisions
Whither this Study? Level of analysis (natural courts
rather than individual justices) Types of decisions rather than
direction of case Other IV’s More nuanced DV’s & IV’s
Court Typologies
+1 +1 +1 +1 +1 +1 +1 +1 +1
Homogenous Court
+1 +1 +1 +1 +1 -1 -1 -1 -1
Divided Court
+1 +.80 +.65 +.38 +.05 -.20 -.30 -.72 -1
Heterogeneous Court
Bush v. Gore (USSC)Bush v. Gore (USSC)
YES YES YES YES YES NO NO NO NO
END THE COUNTING (5-4)
YES YES YES YES YES YES YES NO NO
EQUAL PROTECTION (7-2)
YES YES YES NO NO NO NO NO NO
ARTICLE 2 (3-6)