In my last post I surveyed two ways students of the Supreme Court have conceived of judicial decision making: the legal model and the attitudinal model. As I noted previously, although the attitudinal model is now the predominant view among political scientists, there are many notable scholars who insist that attitudes (i.e., political ideology) alone cannot account for the richness of the Court as an institution and judges as complex, social creatures. The diversity of this literature presents a challenge for anyone attempting a quick summary. Based on my own makeshift categorization, the discussion proceeds as follows. First, I discuss studies which emphasize the internal dynamics of Court decision making; next, the external or inter-institutional dynamics; finally, I discuss studies which remind us of the more human aspects of judicial decision making, such as role orientation and reputation.
Research on the intra-court factors that influence judicial decision making can be subdivided into studies which examine the easily overlooked bargaining over the agenda-setting of the court (Perry 1991; Black & Owens 2009) to consensus building on the disposition of a case, to bargaining over the nuances of the opinion itself which contributes to the formation of consequential legal doctrine (Maltzman, Spriggs, & Wahlbeck 2000). This literature can also be distinguished methodologically, especially between scholars who favor highly technical quantitative analysis (e.g., Epstein & Knight 1997) and those, like Gillman, who favor “traditional legal-historical methods (e.g., reviewing conference notes, draft opinions, memos, and memoirs) in order to better understand the justices’ jurisprudence and deliberations” (Gillman 1997b, 11).
One important set of questions about Supreme Court decision making involves agenda setting. Black and Owens provide a helpfully succinct description:
The agenda-setting process begins when a party in a lower court loses, wants the Supreme Court to review her case, and files a petition for a writ of certiorari (‘‘cert’’) or an appeal with the United States Supreme Court. Before the Court decides whether to grant or deny review to it, the petition must first make the ‘‘discuss list.’’ This list is created and circulated by the Chief Justice, who initially identifies the petitions he thinks deserve formal consideration by the Court. Each associate justice can add petitions to the discuss list that they think merit the Court’s attention…If four or more justices vote to hear the case, it proceeds to the merits stage, where it receives full treatment (Black & Owens 2009, 1063).
Of the thousands of requests for cert each year, less than one hundred survive this filter. Indeed, according to Chief Justice John Roberts‘ 2013 Year-End Report, 7,509 cases were filed in the Court, “and 76 were disposed of in 73 signed opinions.” About one percent of cases filed made the cut! Scholars speculated for decades about the factors that drive this critical determination. Some scholars found evidence that justices look for cues within the cert petitions themselves, signals from the number or content of amicus curiae briefs, or signals from the executive branch (Tanenhaus, Schick, & Rosen 1963; Caldeira, Wright, & Zorn 1999; Brenner, Whitmeyer, & Spaeth 2007; Collins 2007). Many of these practices were also confirmed through the use of in-depth elite interviews (Perry 1991 interviewed five justices, sixty-four former U.S. Supreme Court clerks, seven DC Circuit judges, four U.S. solicitors general, and one Court staff member). Recently, Black and Owens were able to confirm that the justices are strategic “policy-driven agenda-setters who analyze both the Court’s expected policy decision and the status quo” (Black & Owens 2009, 1067) but that significant predictive power can be attained when legal factors such as lower court conflict and other indicators of legal importance are incorporated the an otherwise attitudinally based model.
Other scholars have taken a more expansive view of agenda setting, finding strategic interaction among the justices at later stages in the decision making process:
Court scholars focus the discussion of agenda setting on the Court’s vote on whether to place a case on its docket. Yet, because any individual case raises numerous issues that can potentially be addressed in an opinion, agenda setting occurs in at least two other decision-making stages: the assignment of the majority opinion and the writing of that opinion (Maltzman, Spriggs, & Wahlbeck 2000, 33).
Maltzman, Spriggs, and Walhbeck seek to improve upon the attitudinal model by emphasizing judicial behavior as strategic behavior motivated by policy preferences but mediated through institutions, both formal and informal, which render Supreme Court decision making a highly collegial and interdependent process. They also return attention to the content of the judicial opinion which is obscured by the attitudinalist tendency to reduce complex holdings to dichotomous outcomes (but see Ruger, Kim, Martin & Quinn 2004). The Court, Maltzman, Spriggs, and Wahlbeck argue, is more than the aggregation of individual policy-seekers. Each element of the opinion is determined by a collegial game in which “A strategic justice…pursues his or her policy preferences within constraints determined by the interdependent nature of decision making on the bench” (Id. at 18).
To test their theory, the authors rely on the Spaeth-Gibson judicial database, calling it “the most reliable and comprehensive record of Supreme Court decision making yet to be uncovered and mined” (Id. at 27), plus assignment sheets, docket sheets, and circulation records newly made available from “the private papers of Supreme Court justices” (Id. at 26). What they find is that policy “preferences alone do not dictate behavior on the U.S. Supreme Court” (Id. at 147). Holding attitudinal factors constant, justices are, for example, significantly more likely to join an opinion once a majority coalition has formed or when the opinion writer has cooperated in the recent past, and increasingly less likely to join as their colleagues signal disagreement through internal memos. Each of these collegial factors significantly increases predictability over attitudinal factors alone. In short, “A justice’s decision to join is also influenced by concurrent choices of his or her colleagues” (Id. at 143).
Scholars have also recently begun studying the broader institutional environment in which the Court operates. For example, some studies deal with the impact of public opinion on Supreme Court decision making (McGuire & Stimson 2004; Giles, Blackstone, & Vining 2008 each find the Court responsive to public opinion), while others examine the Court’s behavior vis-à-vis other governmental actors. With respect to the latter, scholars such as Marks (1989) and Clark (2009) theorize that the justices on the Court may moderate their preference-seeking behavior in order to avoid potential backlash from the other two branches which might generate less favorable legislative outcomes. This literature tends to distinguish sharply between sincere and strategic voting behavior by the justices and has focused on veto points in the elected branches within which the Court has latitude to pursue its sincere policy preferences. To date, this literature has been more formal than empirical and reached few settled conclusions. One question which remains is whether the Court, having reached internal consensus, should ever find it very likely that Congress, with its many veto points, will muster the votes necessary to overrule it. Due to selection effects, Segal (1997) finds it highly unlikely that the Court’s membership will have extreme preferences relative to congressional majorities. Graber (2005) suggests that the Court is “established and maintained by elected officials” to entrench their own constitutional vision and shift responsibility. Even if the Court did consist of preference outliers, Segal (1997) argues, there is no reason to assume, as many separation-of-powers models do, that Congress will have the last word, especially with respect to constitutional issues. Finally, Owens, in a rare empirical test of the separation-of-powers approach found that “Across every model tested, justices failed to exert behavior consistent with a separation of powers effect” (Owens 2010, 412).
Justices are People Too
Other students of the Court, in reaction to the dominance of the attitudinal model and the emergence of strategic-institutional models have thought it prudent to remind their colleagues that Supreme Court justices are both more and less than policy-preference maximizers and political strategizers. After all, justices are “still human, and thus still somewhat vulnerable to the pull of reputation, the desire for esteem, and the wish to avoid public criticism” (Schauer 2000, 630). Justices “make arguments that are based on more than personal policy preferences” and “the reasons they offer in opinions matter to other justices” (Richards & Kritzer 2002, 307), other officeholders (Clark 2009), and members of the public (Casillas, Enns, & Wolhfarth 2010). “Courts and judges are certainly part of the political world, but they are also part of a distinctive legal culture” (Richards & Kritzer 2002, 305) in which members apparently value law for its own sake. While cites to precedent and carefully reasoned arguments might certainly be described as strategic behavior (Epstein & Knight 1997), Gillman (1997b) cautions against the conceptual strain that results from a strategic-institutionalist propensity to re-characterize all institutionally-guided behavior as constrained preference maximization. For Gillman, law and courts scholars should not assume that the goals pursued by justices are exogenous to the value-laden institutions in which they are situated, and the best method for taking legal institutions seriously are “traditional legal-historical methods (e.g., reviewing conference notes, draft opinions, memos, and memoirs) in order to better understand the justices’ jurisprudence and deliberations” (Gillman 1997b, 11).
Like Gillman, Frederick Schauer (2000) also warns that Supreme Court decision making should be viewed as other than mere attitudes and strategy. He calls for more empirical research on the more “inglorious determinants of judicial behavior” such as the ambition and reputation (Id. at 615). While Supreme Court justices might seldom have ambition for higher office, there is no reason to suppose that they might not “also desire to have an impact for the sake of having an impact” (Id. at 633). Scholars cannot neglect the possibility that justices “could plausibly select outcomes, or select substantive or methodological ‘trademarks,’ for the purpose of maximizing their own influence” (Id.). [See New York Magazine‘s recent interview with Justice Antonin Scalia in which he claims to have no concern for his intellectual legacy.] Though we have certainly come a long way in our understanding of Supreme Court decision making since the days of the naïve legal model, “perhaps,” says Schauer, “it is now time to investigate whether ideologies and attitudes are not all that ideologists and attitudinalists claim that they are” (Id. at 636).
So, what factors drive decision making on the Supreme Court? This review of the law and courts literature has revealed quite a bit. We have strong evidence that judges are driven by their policy preferences. This point is no longer controversial. What is becoming increasingly clear, however, is that this picture is very incomplete. Justices are obviously influenced by aspects of their institutional environment both within the Court and without. As Brigham put it, “Institutions share a capacity to order social life because people act as though they exist, as if they matter” (Brigham 1999, 20). Most recent scholarship has taken the attitudinal insight to heart, and then moved forward to specify its limits. More than mere curiosity motivates this inquiry into judicial motivation. As Frank Cross put it, if we conceive of the law as “ropes binding a judicial Houdini,” it behooves us to discover “which brand of rope and which type of knot are the most effective and inescapable” (Cross 1997, 326).