A presentation on the different theories of Supreme Court decision making as well as the procedures the Supreme Court uses to decide cases.

1. Appellate CourtsAppellate Courts
Deciding CasesDeciding Cases

2. Overview of Appellate CourtOverview of Appellate Court
Decision MakingDecision Making
 First-level Appellate CourtsFirst-level Appellate Courts
 Easy casesEasy cases
 Second-level Appellate CourtsSecond-level Appellate Courts

3. Factors Affecting Appellate CourtFactors Affecting Appellate Court
Decision MakingDecision Making
 The Legal ModelThe Legal Model
 The Attitudinal ModelThe Attitudinal Model
 Rational Choice ModelsRational Choice Models
 Separation of Powers ModelSeparation of Powers Model
 Institutional ModelInstitutional Model
 Role TheoryRole Theory

4. The Legal ModelThe Legal Model
 Uses text, intent, precedent, or stareUses text, intent, precedent, or stare
decisis as an explanation of court decisiondecisis as an explanation of court decision
makingmaking
 Values: reliability, efficiency, equalityValues: reliability, efficiency, equality
 Methods:Methods:
 OriginalismOriginalism
 TextualismTextualism
 Intent of FramersIntent of Framers

5. The Attitudinal ModelThe Attitudinal Model
 Judges make decisions based in part on their personalJudges make decisions based in part on their personal
policy preferences rather than solely according to thepolicy preferences rather than solely according to the
law.law.
 Development of the Attitudinal Model in Political ScienceDevelopment of the Attitudinal Model in Political Science
 Legal RealistsLegal Realists
 Behavioral RevolutionBehavioral Revolution
 Political science can ultimately become a science capable ofPolitical science can ultimately become a science capable of
prediction and explanationprediction and explanation
 Political science should concern itself primarily, if not exclusively,Political science should concern itself primarily, if not exclusively,
with phenomena which can actually be observedwith phenomena which can actually be observed
 Data should be quantified and “findings” based on quantifiable dataData should be quantified and “findings” based on quantifiable data
 Research should be theory oriented and theory directedResearch should be theory oriented and theory directed
 Herman Pritchett (1948)Herman Pritchett (1948)
 Glendon SchubertGlendon Schubert

6. The Attitudinal Model (cont’d)The Attitudinal Model (cont’d)
Justices
1 2 3 4
Case 1 + + + +
Case 2 + + + -
Case 3 + + - -
Case 4 + - - -

7. Attitudinal Model (cont’d)Attitudinal Model (cont’d)
Liberal-------------------------------------------------------------------------
Conservative
J1 J2 J3 J4

8. Attitudinal Model (cont’d)Attitudinal Model (cont’d)
Percentages of Liberal Votes Cast by Justices, 1994 – 2004
Terms
Justice Liberal Votes
Stevens
Ginsburg
Souter
Breyer
O’Connor
Kennedy
Rehnquist
Scalia
Thomas
67.1
61.9
61.7
57.9
42.3
41.9
33.9
30.9
28.7
Source: U.S. Supreme Court Database, compiled by Harold
Spaeth, Michigan State University at
www.as.uky.edu/polsci/ulmerproject/sctdata.htm
Note: Cases are included if they were decided on the merits
with full opinions and if votes could be classified as
liberal or conservative. Criteria for classifying votes are
those used in the database.

9. Attitudinal ModelAttitudinal Model
 Harold Spaeth (1976)Harold Spaeth (1976)
 Psychological influencePsychological influence
 Attitude - “An enduring interrelated set of beliefs about an object or situation. ForAttitude - “An enduring interrelated set of beliefs about an object or situation. For
social action to occur, at least two interacting attitudes, one concerning the attitudesocial action to occur, at least two interacting attitudes, one concerning the attitude
object and the other concerning the situation must occur.”object and the other concerning the situation must occur.”
 Rational Choice TheoryRational Choice Theory
 Segal and Cover (1989)Segal and Cover (1989)
 Martin and Quinn (2002)Martin and Quinn (2002)
 Markov Chain Monte CarloMarkov Chain Monte Carlo
 Epstein, Martin, Segal, and Westerland (2007)Epstein, Martin, Segal, and Westerland (2007)
 Judicial Common SpaceJudicial Common Space

10. The Attitudinal ModelThe Attitudinal Model
 Marbury v. MadisonMarbury v. Madison
(1803)(1803)
 Vote: 6 – 0Vote: 6 – 0
 Ex Parte McCardleEx Parte McCardle
(1869)(1869)
 Vote: 8 – 0Vote: 8 – 0
 Powell v. AlabamaPowell v. Alabama
(1932)(1932)
 Vote: 7 – 2Vote: 7 – 2

11. The Attitudinal ModelThe Attitudinal Model
 Nixon v. United StatesNixon v. United States
(1993)(1993)
 Vote: 9 – 0Vote: 9 – 0
 Bush v. Gore (2000)Bush v. Gore (2000)
 Vote: 5 – 4Vote: 5 – 4
 Republican Party ofRepublican Party of
Minnesota v. WhiteMinnesota v. White
(2002)(2002)
 Vote: 5 – 4Vote: 5 – 4
 Caperton v. MasseyCaperton v. Massey
Coal CompanyCoal Company
 Vote: 5 – 4Vote: 5 – 4

12. Attitudinal ModelAttitudinal Model
 Why is the Attitudinal Model Particularly Applicable to the UnitedWhy is the Attitudinal Model Particularly Applicable to the United
States Supreme Court?States Supreme Court?
 The Supreme Court controls its docketThe Supreme Court controls its docket
 No electoral accountabilityNo electoral accountability
 Immune from political accountabilityImmune from political accountability
 No justice ever removed from officeNo justice ever removed from office
 Only 5 Constitutional Amendments have ever overturned Supreme CourtOnly 5 Constitutional Amendments have ever overturned Supreme Court
Decisions (11Decisions (11thth
, 14, 14thth
, 16, 16thth
, 19, 19thth
, 26, 26thth
))
 No ambition for higher officeNo ambition for higher office
 Supreme Court is the court of last resortSupreme Court is the court of last resort
 Why are ideology and attitudes not as prevalent on other courts?Why are ideology and attitudes not as prevalent on other courts?

13. Separation of Powers ModelSeparation of Powers Model
 Courts make decisions with a concern for other actorsCourts make decisions with a concern for other actors
 Other CourtsOther Courts
 LawyersLawyers
 Interest GroupsInterest Groups
 PresidentPresident
 CongressCongress
 Public OpinionPublic Opinion
 Why?Why?
 Other branches of government can have a potential impact on what courts doOther branches of government can have a potential impact on what courts do
 Determine court budgets/salariesDetermine court budgets/salaries
 Overturn (on statutory matters) or limit court decisionsOverturn (on statutory matters) or limit court decisions
 Pass legislation with regard to judges’ working conditionsPass legislation with regard to judges’ working conditions
 Promoting judgesPromoting judges
 The public may have a potential impact over courtsThe public may have a potential impact over courts
 Is the judge elected?Is the judge elected?
 Result: judges modify their preferred preferences in light of external factors.Result: judges modify their preferred preferences in light of external factors.

14. Separation of Powers (cont’d)Separation of Powers (cont’d)
Liberal Conservative
Law Status
Quo
PresidentHouseSenate
Supreme
Court

15. Separation of Powers (cont’d)Separation of Powers (cont’d)
Liberal Conservative
Law Status
Quo
President
(.525)
House
(-.107)
Senate
(-.1285)
Supreme
Court
(.181)
Employment Division v. Smith
(1990)

16. Separation of Powers (cont’d)Separation of Powers (cont’d)
Liberal Conservative
Law Status
Quo
President
(-.441)
House
(-.112)
Senate
(-.125)
Supreme
Court
(.101)
Religious Freedom and
Restoration Act (1993)
Law Status
Quo

17. Separation of Powers (cont’d)Separation of Powers (cont’d)
Liberal Conservative
Law Status
Quo
President
(-.441)
House
(.122)
Senate
(.173)
Supreme
Court
(.096)
City of Boerne v. Flores (1997)
Law Status
Quo

18. Institutional PerspectiveInstitutional Perspective
 Institutions influence the political strategiesInstitutions influence the political strategies
adopted by individuals, firms, groups, andadopted by individuals, firms, groups, and
governments, and thereby affect politicalgovernments, and thereby affect political
behavior and policy outcomes.behavior and policy outcomes.
 Strategic InteractionStrategic Interaction
 Two goals:Two goals:
 Achieve majorityAchieve majority
 Achieve desired outcomeAchieve desired outcome
 Example: Norm of ConsensusExample: Norm of Consensus
 Example: Institutional Differences between CourtsExample: Institutional Differences between Courts
 Example: Role of Chief JusticeExample: Role of Chief Justice

19. Role TheoryRole Theory
 Gibson (1978)Gibson (1978)
 Justices view about what constitutesJustices view about what constitutes
appropriate behavior for the court and itsappropriate behavior for the court and its
membersmembers
 Views regarding unanimous decisionsViews regarding unanimous decisions
 Views on lobbying colleaguesViews on lobbying colleagues
 Views on asking questions during oral argumentsViews on asking questions during oral arguments
 Views on the role of precedent and attitudesViews on the role of precedent and attitudes

20. The Supreme Court Process andThe Supreme Court Process and
Applying Decision Making ModelsApplying Decision Making Models
 Oral ArgumentOral Argument
 Historical ChangesHistorical Changes
 ScheduleSchedule
 Conference on theConference on the
MeritsMerits
 Role of the Chief JusticeRole of the Chief Justice
 The Original Vote onThe Original Vote on
the Meritsthe Merits
 Opinion AssignmentOpinion Assignment
 Four Factors thatFour Factors that
influence opinioninfluence opinion
assignment:assignment:
 WorkloadWorkload
 IdeologyIdeology
 SpecializationSpecialization
 Self-assignmentSelf-assignment

21. The Supreme Court Process and ApplyingThe Supreme Court Process and Applying
Decision Making Models (cont’d)Decision Making Models (cont’d)
 Draft OpinionsDraft Opinions
 Factors that influence the length of time to writeFactors that influence the length of time to write
 The importance and divisiveness of the caseThe importance and divisiveness of the case
 The size of the voting majority at the conferenceThe size of the voting majority at the conference
 Whether one or more justices switched their voteWhether one or more justices switched their vote
 Whether a case had to be reassigned or carried over toWhether a case had to be reassigned or carried over to
another termanother term
 Reactions to Draft OpinionsReactions to Draft Opinions
 Agree to joinAgree to join
 Agree to join with the condition of minor revisionsAgree to join with the condition of minor revisions
 Ask for substantive alterationsAsk for substantive alterations
 ““Dear Clarence, I disagree with everything in your opinionDear Clarence, I disagree with everything in your opinion
except your name, Justice Blackmun”except your name, Justice Blackmun”

22. The Supreme Court Process and ApplyingThe Supreme Court Process and Applying
Decision Making Models (cont’d)Decision Making Models (cont’d)
 Changing VotesChanging Votes
 Final Vote on the Merits andFinal Vote on the Merits and
Announcement of the OpinionAnnouncement of the Opinion