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.

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.

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.

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.’

Judicial Decision-Making Continuum ATTITUDINAL MODEL STRATEGIC MODEL CONSTITUTIVE MODEL LEGAL MODEL ATTITUDES DETERMINE VOTES ATTITUDES DO NOT DETERMINE VOTES

JUDICIAL DECISION-MAKING MODELS CONCEPTLegal Model Attitudinal Model Strategic Model Constituti ve Model POLITICAL ATTITUDES 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 An important variable in judicial decision-making CASESDisputes 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 MOTIVATIONImpartial 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 (1 st 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 (1 st 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: 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 (  ) =  +  1 X 1 +  2 X 2 +  3 X 3 +  4 X 4  = 1 if predicted vote is a liberal vote = 0 if predicted vote is a conservative vote X 1 = Attitudinal Variable [Segal & Cover ideological scores for USSC Justices ranging from –1 (conservative) to +1 (liberal)] X 2 = 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] X 3 = Constitutive Environment variable (public approval of the Supreme Court ranging from 0 to 100) X 4 = 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 (  ) =  +  1 X 1 +  2 X 2 +  3 X 3 +  4 X 4  = 1 if predicted vote is a liberal vote = 0 if predicted vote is a conservative vote X 1 = 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) X 2 = Strategic Environment variable {the ideological balance of the Supreme Court ranging from –9 (conservative) to +9 (liberal)} X 3 = Constitutive Environment variable (public approval of the Supreme Court ranging from 0 to 100%) X 4 = 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 Bush Carter Cleveland1.00 Coolidge Eisenhower F. Roosevelt Ford Harding Hoover Kennedy L.B. Johnson McKinley Nixon Reagan T. Roosevelt Taft Truman Wilson * 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)* Roosevelt5D Truman3D Eisenhower5R Kennedy2D Johnson2D Nixon4R Ford1R Reagan4R Bush1R * 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 help explain the attitudinal model’s failure at the 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 Homogenous Court Divided Court Heterogeneous Court

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)