Sunday, October 23, 2016

Supreme Court Justices are Not the Objective Arbiters of the Law that They are Made Out to Be

"The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, alterable when the legislature shall please to alter it. It is emphatically the province and duty of the judicial department to say what the law is. This is the very essence of judicial duty." - John Marshall

"Presidents come and go, but the Supreme Court goes on forever." - William Howard Taft

"It is entirely illogical to assume that a judicial candidate appointed by a political official, who is known to support a given political ideology, whether publicly or privately, will be entirely objective when they make rulings on important legal cases. Their political ideologies play a much bigger role in their decision making processes than is currently projected by the present American legal establishment." - Harold Spaeth

"Yes, I will bring the understanding of a woman to the Court, but I doubt that alone will affect my decisions." - Sandra Day O'Connor

What exactly is the Attitudinal Model? What does is attempt to measure? Is it the only model that attempts to do what it sets out to do, or are there other models that exist that attempt to do the same thing? Very basically, the Attitudinal Model is a social science model. Its primary goal is to explain the behavior of judges who make decisions on important legal cases that have the potential to alter the manner in which the law is read in the United States. This model focuses primarily on United States Supreme Court justices who, through a unique set of circumstances, lifetime tenure being one of the most important, are able to provide an extensive pool of data that assists social scientists dramatically in their efforts to explain how and why these justices behave the way that they do on the bench. This model focuses, more specifically, on judge’s ideological attitudes and social values to determine how they will decide the various cases that come before the Supreme Court. Harold Spaeth and Jeffrey A. Segal outline this model very effectively in The Supreme Court and the Attitudinal Model Revisited, published in 2002. There is also the Legal Model, whose goal it is to do the same thing. However, it relies on the concept that judges are impartial arbiters of the law who make their decisions on the separate merits of each individual case that they hear. Richard Seamon, et al outlines this model in The Supreme Court Sourcebook published in 2013. In each section comparisons will be made, and there will also be a look at some of the positive and negative aspects of each concept. There will then be a comparison between Judicial Behavioralism, another model, and the Attitudinal model. The piece will conclude with a summary that will briefly tie everything up and then offer up a suggestion as to how all of this separation in the field can be rectified. It will also very briefly address the, now, very corporate nature of the Supreme Court.

The Attitudinal Model

Jeffrey Segal and Harold Spaeth published their first book on the Attitudinal Model, The Supreme Court and the Attitudinal Model, in 1993. In this text, they indicated that they sought to offer a scientific analysis of the behavior of the United States Supreme Court and to address what they felt was a major gap in past attempts by scholars, of all kinds, to accurately predict the voting behavior of Supreme Court Justices. This, of course, was not the first time that frustrations about predicting the Supreme Courts’ voting behavior had been made known. In 1978, James L. Gibson made his discontent with the available models quite clear in his piece, “Judges' Role Orientations, Attitudes, and Decisions: An Interactive Model,” published in the journal of the American Political Science Association. He is quoted as saying “Despite almost two decades of behavioral research, our models relating the key variables in judicial decision making are incomplete and inadequate. In particular, the impact of two widely used variables, judges' attitudes and role orientations, is poorly understood. While there appears to be a consensus that attitudes and role orientations are important predictors of behavior, no research has been successful in developing a comprehensive model capable of predicting judges' behaviors.” In 1989, Segal published an article, with Albert D. Cover, “Ideological Values and the Votes of U.S. Supreme Court Justices,” also published in the journal of The American Political Science Association, where it was their goal to provide the very model that Gibson felt was missing. The two men first assumed that a judges’ vote on a case was indicative of their social values. They then collected the voting records of justices from Earl Warren to Anthony Kennedy. Using their voting history, they were able to scientifically confirm each of these justices’ votes on given cases to a ratio of about eighty percent. This level of accuracy had not yet been heard of to that date, and was only a sign of very important improvements to come.

By 1993, with the publication of The Supreme Court and the Attitudinal Model, Segal and Spaeth had been able to take another four years to refine their procedures, gather more data on the voting records of various justices, and increase the accuracy of their predictions to nearly ninety percent. More importantly, however, they had done enough work on the model that they were able to respond to various criticisms with well documented accuracy. The first criticism that they received the most early on in their work was that judges were not supposed to be policy makers. Citing the work of Craig Ducat and Harold Chase in their book, Constitutional Interpretation, 4th Edition, published in 1988, they refused to give this criticism any further credence, as they felt that the question had already been sufficiently proven that judges to do in fact make policy. The next criticism that they faced was that their work was time bound. This criticism was rejected fairly quickly. They mentioned, first, the judicial vote database set up by Spaeth, through the University of Michigan, Ann Arbor, which he was actively adding to as of the publication of their 1993 text. Spaeth cited the United States Supreme Court Judicial Database, 1953- Terms, the database that he helped to construct. This database contains all of the behavioral and policy data that he and his teammates have collected throughout the years, and it is still active and continues to be augmented. It is an amazing and highly useful piece of work. They then quoted the first work on the Attitudinal Model done by Glendon Schubert. He covered the Vinson Court, from 1946 to 1952, in works published in 1965 and 1979. His latest piece, Quantitative Analysis of Judicial Behavior, published in 1979, was the most accurate, as well as, the mostly closely related support of their work to be found.

The next way the Attitudinal Model has received criticism is through what scholars like to call Institutional Criticism, in that they argue that the Attitudinal Model governs only the actions and behaviors of the Supreme Court itself. The most significant response to this criticism is that the study of the Supreme Court has a unique barrier that does not exist for the study of lower courts. When a person is appointed to the Supreme Court, there is no position higher than that upon which they can then sit. Segal and Spaeth quoted Sandra Day O’Connor, perfectly, when she said, “I have no next career step. This is it.” Justice O'Connor is quoted by Lawrence Bodine in his piece entitled, “Sandra Day O’Connor,” published in the journal of the American Bar Association, in 1983. Their basic point was that yeah, things will be a little different when one is studying judges who have nothing left to prove and whose job description comes with a lifetime tenure. The next criticism that is made against the Attitudinal Model is that in some cases, it does not account for Non-Attitudinal factors that may be influencing the justice’s behavior. This is a point where Segal and Spaeth, in 1993, admit that their model had not yet properly accounted for decisions on things like unions, economic activity, judicial power, federalism, and federal taxation. They did admitted that more work was yet to be done; however, they also argued that they were not the only ones making progress in this field of research. They quoted the work of C. Herman Pritchett, “The Development of Judicial Research,” published in Joel B. Grossman and Joseph Tanenhau's book, Frontiers of Judicial Research, in 1969. They noted that he had actually made positive progress in the areas where they were lacking long before they had ever written their book.

The next criticism is that the Supreme Court is still a court. They refer back to C. Herman Pritchett who, while he does admit that attitudinal factors can play a big role in how judges make their decisions, also argues that it is incumbent upon scholars to remember that these judges are also influenced by the need to maintain an image of impartiality when making their decisions. Segal and Spaeth respond by citing a number of cases where the exact opposite happened when the justices made their decisions in regards to certain cases, to the point of even being comical. They cite United States v. Butler, 297 U.S. 1 (1936)Flood v. Kuhn (407 U.S. 258 (1972)Nix v. Hedden, 149 U.S. 304 (1894), and United States v. Maine, 469 U.S. 504 (1985). In each of these cases, Spaeth and Segal argue, the Supreme Court justices' attempts to mask their decisions with impartiality served to prove even more conclusively that they were, in fact, extremely biased in their opinions when making rulings on the cases that come before their court. It is their professional opinion that there has never once been a case that has gone before the Supreme Court that has not suffered the wrath of the biased jurisprudence involved. The people that sit atop the highest appeals court in the United States are human beings, after all. To believe that they would not be affected by their own biases and political ideologies is to assume that they are robots, and of course, they indeed, are not.

Of all the criticisms that Segal and Spaeth recognize against the Attitudinal Model, it is the criticism that the model is guilty of circular reasoning that they both agree is the most damning. They admit that the attitudes used to explain the justice’s votes are based on those selfsame votes. They explain that earlier on, behaviorists who did work on this model used cumulative scales and factor analyses to explain the justice’s votes, with the scales and factors used to evidence the explanatory power of the Attitudinal Model. Essentially, this circular reasoning issue has always been a problem with the model. They quote the work of Epstein, Walker, and Dixon, “The Supreme Court and Criminal Justice Disputes: A Neo-Institutional Perspective,” published in the American Journal of Political Science, in 1989, to give credit to their detractors. To help eliminate this problem, they have included three different things to minimize critic’s ability to levy this argument against the Attitudinal Model. They include the use of facts derived from the lower court records of cases decided by the Supreme Court Justices earlier on in their careers, they use content analysis of editorials appearing in advance of a nominee’s confirmation, and they use the justice’s past voting behavior to predict their votes in subsequent cases. They outline this in further detail in their book, an all of this data is available for review in their database at the University of Michigan.

In 2002, just under ten years after the original publication of The Supreme Court and the Attitudinal Model, Segal and Spaeth published an updated version of their work entitled, The Supreme Court and the Attitudinal Model Revisited. In this text, they provided a very clear definition of the Attitudinal Model, which, by then, had been given a lot more time to prove itself. The Attitudinal Model was now defined as a melding together of key concepts from legal realism, political science, psychology and economics. The Attitudinal model is rooted in the Legal Realist movement of the 1920s, led by Karl Llewellyn and Jerome Frank. These men and others were responding negatively to the conservative and formalist nature of American jurisprudence that was then the style. This was a period when the law was seen as a static entity in which judges merely found the needed statutes to make rulings rather than making law with their rulings. Legal Realism argued that law could not possibly exist this way, and Karl Llewellyn is quoted as saying that he had a “conception of law in flux, of moving law, and of judicial creation of law.” He is quoted from his piece, “Some Realism about Realism: Responding to Dean Pound,” published in the Harvard Law Review, in 1931. Legal realists have since argued further that the judicial creation of law does not create bad jurists out for self-empowerment. What it actually does is develop intuitive judges who create law as they make their decisions. Segal and Spaeth argue that this makes for a broader way to study judicial decision making, which can help to make predictions about their behavior in the court room dramatically more effective.

Scholars of the Attitudinal Model saw the potential flaws in just relying on Legal Realism to make their predictions about the judicial behavior of the Supreme Court, so they turned to a more scientific approach to making their predictions. These men became known as Behavioralists, and their work became known as Behavioralism. Segal and Spaeth quote the work of Albert Somit and Joseph Tanenhaus to enumerate the points made by Behavioralists, who felt that Political Science, and thus, the work of predicting judicial actions, should become more scientific. In their text, The Development of Political Science, published in 1967, they outlined what they argued were the four key adjustments to the study of politics that would help political scientists to better explain and predict what goes on in the courts. Political science must, ultimately, become a science capable of prediction and explanation. Political science should concern itself primarily, if not exclusively, with phenomena which can actually be observed. Data should be quantified and “findings” based on quantifiable data. Research should be theory oriented and theory directed. There is then, of course, the Psychological Influence on the process of predicting judicial behavior. This is where the individual justice’s attitudes and beliefs began to come into play in attempting to predict their behavior in a given Supreme Court case. The judge’s attitude came out of this. In a book of his own, An Introduction to Supreme Court Decision Making: Revised Edition, published in 1972, Harold Spaeth defined an attitude as an “interrelated set of beliefs about an object or situation. For social action to occur, at least two interacting attitudes, one concerning the attitude object and the other concerning the attitude situation, must occur.”

Finally, there is the influence of economics. In this case, the justices are influenced by their career goals. This is, of course, case policy formation. The rules of the game step in next. If a justice must be elected to a limited term in office or appointed for a limited term, their behavior is going to be different from that of a justice who is appointed for a life term and has nowhere else to go. This means, specifically, any other justices on any other court in the land will be measured differently from a Supreme Court Justice. Such freedom can allow a Supreme Court Justice to behave differently than any other justice in any one of the other given situations that may occur in a lower court. Spaeth and Segal argue that this makes the Supreme Court prime for the use of the Attitudinal Model because it frees Justices from the bounds of having to meet the expectations of either a voting public or a nominating official. They can revert to their own ideologies and vote in whichever way most makes them comfortable. In other words, if you really want to see how a judge feels about a given topic area, put them on the Supreme Court, and their decisions on related cases will give you a pretty good idea of where they actually stand on political and social issues.

The Legal Model

Frank B. Cross, in his piece, “Decision Making in the U.S. Circuit Courts of Appeals,” published in the California Law Review, in 2003, argues that the most obvious and straightforward theory of judicial decision making is the Legal Model. According to this theory, judges decide cases through systematic application of the external objective sources of authority that classically comprise the law. When judges write opinions or orally explain their decisions from the bench, they justify their conclusions by reasoned application of those authorities to the facts of the instant case. This model reflects the theory of judicial decision making commonly taught in law school: judicial decisions are the product of impartial, reasoned analysis, grounded in accepted sources. As support for this, Cross quotes Kathleen M. Sullivan, from her piece, “The Supreme Court, 1991 Term-Foreword: The Justices of Rules and Standards,” published in the Harvard Law Review, in 1992. She says, "Courts are to stick to law, judgment, and reason in making their decisions and should leave politics, will, and value choices to others.” The idea behind repeating, though rewording, the definition is that it seems to be all that this model can really rely on to get its point across to the reader. It’s as if its defenders already know that there is something missing. Its seems in the basic definitions that they give, they know there is something lacking, like they know that they are leaving out the reality that judges are human beings before they are anything else. They know that what they are teaching is naive and needs revision but are sticking to the script, so as to avoid professional and scholastic criticism that could possibly damage their careers. It also seems like they are attempting to guard a secret which, woefully unbeknownst to them, has already long been revealed to the public.

Cross also quotes Anthony T. Kronman from his book, The Lost Lawyer: Failing Ideals of the Legal Profession, published in 1993. Kronman says about judicial rulings that “Such legal analysis can and should be free from contaminating political or ideological elements." Immediately, this speaks of the period of critical analysis of the law that existed when political scientists began seeking out a better understanding of the judicial decision making process. One might also see it as an attempt to revitalize the “Good Ole’ Days” of jurisprudence, or something to that effect; however, every time someone pushes this ideology, it just seems more and more na├»ve. People whose last names are followed with the suffix, JD, have been around long enough to know that human beings, no matter how high minded they might be, do not work like this. People that support this theory as the end all be all of describing how judges make decisions, are somehow forgetting that judges are human, and are thus, subject to the environment in which they exist, as well as, their own biases. They also seem to forget that they have an absolutely terrible record when it comes to predicting outcomes in court cases at every level. Objectivity is at best a shield. Segal and Spaeth have offered criticism on the Legal Theory, as well. To them, the Legal Theory collapses under its own weight because a lot of the concepts that Cross mentions, accompanied by things like judicial activism and restraint, mentioned by Segal and Spaeth, which cannot be empirically measured. This makes it impossible to determine their scientific effectiveness in predicting the outcome of the judicial decision making process in any legal case, let alone, a case that has made it all the way to the United States Supreme Court.

How can one credit such a model as being worth the paper it is written on when it ignores such a glaringly important factor? Spaeth and Segal, in their own words, consider sticking to the Legal Model to be naive. The biggest way to compare the two models to one another, is to say that the legal model is the model from which grew the Attitudinal model because of the dissatisfaction in which scholars were locked as they sought new ways to accurately predict the voting behavior of Supreme Court justices. This is so because while the Legal Model relies on the old axioms that assume that justices are always objective in their thinking, the Attitudinal Model not only assumes that justices are human and will act accordingly, it can measure this behavior with an accuracy that surpasses all other models. Another comparison between the two models is that the Legal Model assumes that justices do not make law, they just find an interpret existing statutes; whereas, the Attitudinal Model assumes that justices make law from the bench, and this should be considered not only normal, but legally and professionally appropriate.

Judicial Behavioralism and the Attitudinal Model

The goal set by judicial behavioralists is the attainment of a scientific explanation of judicial behavior. Their systems discussion alerts them to the impossibility of completely imitating the definition of science, but they still want their work to mirror science as closely as is possible. Many behavioralists emphasize the goal of understanding, rather than prediction and control. It seems like they want their work to resemble that of a chemistry experiment, where a given set of conditions, combined with a given set of stimuli, will produce the same outcome each time an experiment is performed. Bahavioralists seek to develop a model for the prediction of judicial behavior that accounts for self-conscious ambition and that resembles, to them, the very similar goals of natural scientists, who seek to create a set of highly determinate theories for the explanation of empirically observable phenomena. Yet, without demonstrable predictive power, with concomitant implications of the ability to control, is an explanation scientific? Ovid C. Lewis outlines this idea in his piece, “Systems Theory and Judicial Behavioralism,” published in the Case Western Reserve Law Review, in 1970. There seems to be a contradiction in the field itself. Behavioralists recognize the need for prediction while; at the same time, they devalue prediction's ability to enhance the scientific nature of their work.

Dr. Bernard Diamond, in his piece, “The Scientific Method and the Law,” published in, Proceedings: The Thirteenth National Conference of Law Reviews, in 1967, refutes the idea that this kind of work is even scientific. The essence of science is prediction. Observation and description of what has happened is only history: history becomes science when man is able to utilize his observation of things past to predict what is going to happen next. It is through this power of prediction, through his ability to interpolate the past into the future, that he acquires the ability to manipulate the present, and so, manipulate the future. Essentially, behavioralists want to make the process of understanding judicial behavior a scientific process, while eliminating one of most scientific parts of the process, prediction. From what has already been seen of the Attitudinal Model, the absence of prediction would seem to make the Behavioralist Model both incomplete, and frankly, obsolete. Forrest Dill, in his piece, “Judicial Policy-Making: A Critique of the Behavioralist Approach,” published in the Berkeley Journal of Sociology, in 1967, contends that while there are behavioralists that argue that building up a collection of studies over time can lead to more accurate assumptions about present behavior, this does not make their work scientific. Whereas, it is the immediate ability to predict an outcome that makes an experiment scientific; enter the Attitudinal Model. One can imagine that Spaeth and Segal would not be far behind Dill in calling the Attitudinal Model the more scientific of the two models.


This piece has examined, thoroughly, the Attitudinal Model of Judicial Behavior. It has also reviewed the Legal Model of Judicial Behavior. The primary basis for the understanding of these models was the work of Jeffrey Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited. The Attitudinal Model assumes that Supreme Court Justices are actual living human beings who very rarely make decisions without referring to their own personal biases and political ideologies first. The Legal Model assumes that justices are unbiased arbiters of the law, who read the law as it is and who remain objective at all times. They also differ on how judicial law is made. The Legal Model says that justices only find and interpret existing statutes; whereas, the Attitudinal Model assumes that justices make law from the bench. There is then, also, the Behavioralist Model, which seeks to make the study of judicial behavior a scientific process. They fail to do so, however, because they do not to pay the appropriate amount of respect to the need for prediction. As of yet, the Attitudinal Model is by far the most effective model because it does everything the other models don’t. It recognizes human bias, the need for prediction, the ludicrous nature of the notion that statutes are all that determine the outcome of a legal case, and recognizes its own limitations when there are gaps in the available research.

Moving forward, the only real problem that the Attitudinal Model will continue to face is that its primary field of study is limited to the Supreme Court; however, with time, extensive research, and study, this too can be overcome. Perhaps, if more scholars, from all ranges of the field, will put some more effort into this work, they can help to silence the pundits of the other models, as when it comes down to it, the reality is that the Attitudinal Model is the result of a plethora of research that was motivated by the inadequacies of, first, the Legal Model, and then, the Behavioral Model, only to come around to its present understanding. The key to all of this is, as has already been alluded to, is the realization that Supreme Court justices are not mindless robots. They are, in fact, fallible human beings who can just as easily bring their emotions to work as anyone else. Recognizing this fact should help to begin the process of breaking down the philosophical divides that exist between the scholars of these three models. Who would know what can happen when a healthy amount of collaboration actually begins to take place?

Another key, but not quite as academically pursued, factor in determining how a justice, siting on any court in the country, will vote, is the ability to keep a keen eye on who supports them both politically and financially. This is especially the case for justices that sit on lower courts where their position is subject to elections and financial implications. Local judges who have to participate in elections that threaten their jobs are more likely than not to adopt views on various issues that are in tune with the people that are responsible for voting them in or out of office. These judges are also beholden to the people that fund their campaigns. So, if a particular company donates a large sum of money to their campaign, when they get into office, one should expect their opinions on given cases, especially cases that involve the interests of that company, will be altered accordingly. Now, especially after the Citizens United Case, decided in 2010, Citizens United v. FEC, 558 U.S. 310 (2010), many people are applying these very same conditions to the United States Supreme Court. Given the power over election financing that this ruling has given corporations, one cannot blame those people for thinking so. However, as a scholar, one must point back to the Attitudinal Model of Judicial Behavior. The five justices who ruled in favor of corporate donations to political campaigns, Justices Scalia, Kennedy, Thomas, Stevens, and Chief Justice Roberts, were already known to be pro business justices. It is less likely that they were paid off, and more likely that they were put in the position that they are in by politicians, the George Bush, Jr. Administration, who knew full well how they would vote when the case made its way to the Supreme Court. The subsequent argument over whether or not the Bush Administration was paid to put them there is an entirely different story.

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