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Revisiting the Supreme Court and the Attitudinal Model

[ 22 ] February 4, 2011 |

I’ve said this before, but I think it’s worth adding a few caveats to Dylan Matthews’s roundup of political science literature on the Supreme Courts. Particularly when the attitudinal model is used to defend very strong forms of legal realism, it’s worth noting that the model only applies to Supreme Court votes on the merits. Given that virtually by definition cases in the modern era only reach the Supreme Court when there is substantial legal ambiguity involved, it’s not surprising that politics generally drives votes in politically ambiguous cases. But the law matters significantly more in determining what kind of cases the Supreme Court hears and which it doesn’t, and politics alone also can’t explain why votes on the merits are structured around some issues than others. (Although Scalia and Thomas presumably believe that abortion should be illegal, their jurisprudence doesn’t require states to make it illegal.) There are also times when legal policy preferences aren’t the same as policy preferences per se. If you look at it as a case about federalism, the attitudinal model gets 7 of the 9 votes on Raich right; if you look it as a case of whether the federal government should strictly enforce anti-marijuana statutes, it arguably gets 7 of 9 votes wrong. Bush v. Gore is the absolute poster child for purely political jurisprudence, and yet if you look at it as an equal protection case it gets all 9 votes wrong.

For those interested, I’d strongly recommend Mark Graber’s brilliant and very readable essay on models of decision-making and judicial deference during wartime. One crucial limitation of political science modeling is that there’s no objective way of determining what constitutes sound legal practice or of effectively isolating “law” from “politics.” Supreme Court justices always have some discretion, and they’ve always been constrained in many ways from voting pure political preferences.

Comments (22)

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  1. Ed Marshall says:

    The model doesn’t just hold up at the Supreme Court. There was a study that showed some insane (in social science terms) correlation between the sentences people received for dodging the draft in Vietnam and the popularity of the war.

    A study on school desegregation found that the correlating factor between how severely a judge forced schools to comply with the law was completely tilted toward “The school is in the judge’s community”.

    Most of the interesting work going on right now in terms of legal realism is studying how lower courts are making law under the radar.

  2. Hogan says:

    But Alito is still a flaming hack, right?

  3. [...] This post was mentioned on Twitter by jtlevy and LG&M, Scott Lemieux. Scott Lemieux said: The Supreme Court and PoliSci revisited @ezraklein http://bit.ly/iigokD [...]

  4. Paul Campos says:

    One way I try to get students to think about this issue is by making a distinction between the politics of law and politics more generally.

    In this frame, a general political question is something like “should marijuana be legal?” while a question about the politics of law is “should the federal government defer to states regarding issues such as whether marijuana should be legal?”

    Now of course ultimately the second question is every bit as political as the first one, but legal actors are good at fooling themselves into believing that the second question really has a formally correct legal answer in a way that the first obviously doesn’t.

    Indeed one of the ways in which legal formalism defines itself is by advertising this distinction, in situations where the preferences of decision makers regarding the politics of law are in tension with their political preferences on more overtly political questions (Raich is an excellent example).

    • Scott Lemieux says:

      Yes. And, of course, you’re right that neither question is any less “political” in the sense of being answerable by some formal or technical legal reasoning. The only issue is that “law” and “politics” can’t be neatly separated in the ways that both formalists and attitudinalists would prefer to do.

    • CJColucci says:

      But some of those questions look like legal questions in ways the others don’t. For some questions, there’s no semi-plausible way to use anything that remotely resembles even the loosest notion of “legal reasoning” to come to (or rationalize) a decision. Whatever a judge thought income tax rates ought to be, trying to write an opinion justifying a 39% v. a 33% top rate would be impossible. A lot of questions have, and need, no more justification than “we think it’s a good idea, and we have more votes.” Where it’s too clear that that’s all there is, and enough people are willing to accept that, we regard the question as “political” rather than “legal.” Not to say that it’s always clear which is which, but a large number of cases are clear enough.

    • chris says:

      a question about the politics of law is “should the federal government defer to states regarding issues such as whether marijuana should be legal?”

      But technically, the SC isn’t supposed to be answering *that* question either, but the even narrower one of “does the Constitution *require* the federal government to defer to states regarding issues such as whether marijuana should be legal?”

      It’s perfectly possible to believe that it would be good policy for Congress to leave the issue to the states, but that Congress *has the authority to* stick their foot in if they feel like it, and if they screw things up in the process, it’s for the next Congress to fix.

      That’s the whole point of not sitting as a superlegislature (for judges who actually take that idea seriously) — the issue is what Congress could do if it wants, or what Congress actually did do, not what you want Congress to do.

  5. Joe says:

    an equal protection case it gets all 9 votes wrong

    Not sure since the actual minorities warranting protection (as Ginsburg implied in a removed footnote) were the ones screwed by the ruling.

    Politics affects votes but as you say, and what some seem to miss, the range of cases where that becomes an issue is limited. In the book that Linda Greenhouse co-authored looking back to Roe v. Wade, we learn some deemed it unconstitutional to allow abortions. But, Scalia et. al. never say that.

    Noah Feldman says some interesting things about this subject in his new book on the FDR Court too.

  6. David Kaib says:

    I think you are being too generous. The model only applies to Supreme Court votes on the merits in non-unanimous cases.

  7. Bruce Wilder says:

    “Although Scalia and Thomas presumably believe that abortion should be illegal, their jurisprudence doesn’t require states to make it illegal.”

    But, if they are just politicians, they don’t really have a constraining jurisprudence, they have an fluid, enabling one.

    So, if they move the law far enough, to eliminate any constitutional right to privacy covering abortion (I’m sure the “privacy” of corporations is secure), then their jurisprudence will predictably adapt to circumstances, and they may very well start moving toward requiring the state to “protect the unborn”, etc.

  8. [...] Revisiting the Supreme Court and the Attitudinal Model : Lawyers … [...]

  9. rea says:

    A good example may be health care reform. There are 5 justices who would likely have voted against the statute if they had been Congressmen. On the Court, though, they face other constraints that will likely prevent them from holding that the statute exceeds the powers of Congress under the Commerce clause. They are not likely to want to role commerce clause jurisprudence back to the year 1900, or issue a ruling that would have the effect of rendering all federal drug laws unconstitutional–they are somewhat constrained by the need to have a plausible, coherent body of law

    • Ben says:

      There’s also the Robert McCloskey argument that the Court follows public opinion, and either rules with what it thinks the broad sweep of public opinion wants (Plessy) or smacks down regional outliers that go against broad public opinion (Lawrence v. Texas).

      Based on that analysis, the Court probably won’t want to insert itself in a very partisan political debate, which means either finding some reason to avoid a ruling on the law or allowing it to stand.

  10. Incontinentia Buttocks says:

    they are somewhat constrained by the need to have a plausible, coherent body of law

    Perhaps. But Bush v. Gore suggests that, when push comes to shove, the constraint of the need for apparent coherence or plausibility is pretty weak.

  11. rea says:

    But Bush v. Gore suggests that, when push comes to shove, the constraint of the need for apparent coherence or plausibility is pretty weak.

    Bush v Gore is sort of the proverbial exception that proves the rule. A lot of the Supreme Court’s power in our society is moral–people respect and obey the Supreme Court precisely because its decisions are perceived as recognizing and applying objective principles of law. We may not always agree with the Supreme Court’s results, but we think of the Court as engaging in legal reasoning, not simply the raw exercise of power.

    Bush v Gore was a unique decision–nothing quite like it in Aemrican history. The majority wss very careful to preclude applcition of Bush v Gore as precedent. If the Supreme Court does too many times what it did in Bush v Gore, it will destroy its authority.

    • mpowell says:

      Just to say it: I doubt that the SC will treat HCR the way it treated Bush v Gore. It’s not important enough to further compromise the authority of the court. They couldn’t get away with another of their, “but this doesn’t create any precedent” kind of crap. Well, they could, but I think there would be substantial ramifications through out the system if they did.

      • Paul Campos says:

        I tend to doubt this, for a couple of reasons. First, striking down parts or even all of HCR on commerce clause grounds wouldn’t be nearly as “out there” as the majority’s equal protection argument in Bush v. Gore. The reason Bush v. Gore was so outrageous wasn’t because the equal protection arguments in the case were particularly outrageous on their face — it’s because they were being made by justices who in any other context would have considered those arguments preposterous.

        The parallel for HCR would require the court’s “liberal” (cough cough) justices to, for example, strike down a conservative legislative initiative on commerce clause grounds, that went far beyond the rationales put forth by the Court’s conservatives in Lopez and Morrison.

        I also very much doubt that doctrinal arguments make any difference at all in regard to the Court’s overall perceived political legitimacy. 99.5% of the population knows nothing about commerce clause doctrine, and even among the tiny minority that does there’s considerable support for revivifying the enumerated powers doctrines, at least when doing so produces what they consider politically desirable results.

        • rea says:

          Well, trash enough of commerce clause jurisprudence and you begin to have effects that even your 99.5% of the population notices. But I didn’t mean to suggest that it would not be possible to overturn the health care law without replicating Bush v Gore.

          Rather, Bush v Gore is the most extreme example in history of the Supreme Court discarding law in favor of raw power. Even Dred Scott had more claim to legal (although not moral) legitimacy. Nevertheless, nobody rioted in the street after Bush v Gore, and the Supreme Court did not have to calculate whether the army would obey Bush as president. If the Supreme Court had issued a McCain v Obama decision in ’08, awarding McCain the presidency on spurious grounds, I’m not sure the country would have accepted that in the same way it accepted the 2000 result.

    • Holden Pattern says:

      Bush v Gore was a unique decision–nothing quite like it in Aemrican history. The majority wss very careful to preclude applcition of Bush v Gore as precedent. If the Supreme Court does too many times what it did in Bush v Gore, it will destroy its authority.

      I think you’re mistaken as to why the majority made Bush v. Gore a “one-time offer, good for today only”. They didn’t do that because they thought “Gosh, this looks like the exercise of raw power to pervert the political process, better make sure this doesn’t happen again.” They did it because the rationale they employed — equal protection analysis for voters — is one that the movement conservative majority in the case never ever ever ever wants to be applied to the wrong sorts of people, who would be the natural plaintiffs in most situations.

      That’s precisely what makes Bush v. Gore a naked power play. The decision is indefensible on the merits, but it’s obscene when you consider that the movement conservative majority tried to make sure that the legal theory they used to achieve the desired outcome could never be relied upon by people who would actually have meaningful equal protection claims on the electoral process. Because those sorts of people don’t vote Republican.

  12. [...] discussed the limitations of positivist political science, I attempt to figure it out using my highly sophisticated “educated guess” method. [...]

  13. […] would say something similar, incidentally, about political science and the Supreme Court. I’m glad that the attitudinal model is getting attention from journalists, because if the […]

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