The Evolving View of the Law and Judicial Decision‐Making
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The Evolving View of the Law and
Judicial Decision-Making
JUSTINE D’ELIA-KUEPER and JEFFREY A. SEGAL
Abstract
Attitudinalists and legal realists initially saw the law, not as something that constrained judges, but rather as a nuisance that judges could easily avoid in order to
make decisions consistent with their personal policy preferences. As the study of law
and judicial decision-making has evolved, however, scholars are beginning to realize
that judges may actually use the law to help them secure their most favored outcomes
(Bueno de Mesquita & Stephenson, 2002; Hansford & Spriggs, 2006). As scholarship
on the law and judicial decision-making continues to evolve a key issue going forward will be how to measure the law. Text-based analysis and citation analysis are
promising new approaches in this regard.
INTRODUCTION
For legal realists, such as Frank (1949) and Llewlleyn (1931), studying all
levels of the judiciary as well as for attitudinalists, such as Rohde and Spaeth
(1976) and Segal and Spaeth (1993, 2002), studying the Supreme Court law
and legal reasoning was little more than a nuisance that judges and justices
could readily avoid due to the ability in the common law realm to find
precedents on both sides of any case that comes to court or to distinguish
and if necessary overrule unfavorable precedents. In the statutory realm,
the highly fluid “canons of construction” (Llewellyn, 1950) allowed judges
to do the same.
These arguments, convincing as they were too many, were based entirely
on anecdotal evidence, largely because scholars had trouble conceiving of
falsifiable tests of the tenets of legalism. Scholarship toward the turn of the
century (Segal & Howard, 2002; Segal & Spaeth, 1996) broke with this trend,
albeit controversially (see Friedman, 2006 and Gillman, 2001 for critiques).
More recent scholarship, noting the potential lack of legitimacy in the decisions of unelected judges (and here, we are determined to be the first people
Emerging Trends in the Social and Behavioral Sciences. Edited by Robert Scott and Stephen Kosslyn.
© 2015 John Wiley & Sons, Inc. ISBN 978-1-118-90077-2.
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
to write about the potential lack of legitimacy who do not quote Hamilton’s
statement on this from Federalist 78), has argued that judges and justices use
legal reasoning, not as a nuisance to be readily discarded on their way to
reaching their policy goals, but as a tool that helps them better reach those
goals (Bueno de Mesquita & Stephenson, 2002; Hansford & Spriggs, 2006).
SUMMARY AND OVERVIEW OF FOUNDATIONAL RESEARCH
There has been a considerable debate between scholars over how, and even if,
the law influences judges and justices. Proponents of the legal model argue
that judges make decisions based primarily on legal factors such as precedent, the plain meaning of the text, or the original intent of the founders
(Bailey & Maltzman, 2011; Kahn, 1999; Scalia & Garner, 2012). Attitudinalists, on the other hand, see judges and justices as being able to get around the
law and make decisions based predominantly on their personal policy preferences. The influence of policy preferences on case decisions is the strongest
for Supreme Court justices, because they have complete control over their
docket. As a result, the Court only hears cases in which the legal factors are
inherently ambiguous. In addition, Supreme Court justices enjoy considerable independence, because of their lifetime tenure and lack of ambition for
higher office, which allows them to consider their personal policy preferences when making decisions without fear of reprisal (Segal & Spaeth, 1993,
2002).
While the strong evidence linking justices’ ideology to their case decisions
supported the attitudinal model, the legal model often went untested. This
was due, in part, to the difficulty of devising a falsifiable test of the idea that
judges do use the law to guide their decision-making. This was by and large
the status quo in the field, until Segal and Spaeth (1996) empirically tested
one of the most important components of the legal model: the idea that justices are influenced by precedent when making case decisions. To measure
the influence of precedent on the justices, the authors looked at landmark
cases that established new precedents, and then considered the subsequent
behavior of the justices who dissented from those decisions. If precedent had
any impact at all, then they expected to find that the judges who initially dissented in the landmark case would gravitate, at least partially, toward the
majority position once it had been established as an official precedent of the
court. What they found instead was that precedent seemed to have very little
impact. For the most part, justices who dissented from the landmark ruling
failed to support the new precedent in the following cases (excepting Justices Stewart and Powell). In addition, only about 12% of the justices’ votes in
their sample could be classified as being precedential, whereas the other 88%
of votes were better characterized as preferential. Nevertheless, Spaeth and
The Evolving View of the Law and Judicial Decision-Making
3
Segal (1999) found that the low precedential rate nearly doubled in the least
salient of the Court’s decisions (ordinary statutory cases, as compared with
landmark or ordinary constitutional cases, and ordinary economic cases, as
compared with landmark and ordinary civil liberties cases). Thus with these
studies, the authors raised considerable doubts about the overall veracity of
the legal model by finding little to no support for one of its main predictions
that justices would be influenced by precedent.
While Segal and Spaeth’s studies were significant for being the first studies to empirically evaluate and uncover a lack of evidence to support the
legal model, it is important to remember that their study tested just one tenet
of the legal model, the effect of precedent on the justices. Justices, however,
according to the legal model, may also be influenced by the text of the constitution and the intent of the framers (Bailey & Maltzman, 2011; Cox, 2003).
The effects of these legal factors on the justices were evaluated in a study
by Segal and Howard (2002). Using the case briefs filed by both the respondent and the petitioner, they were able to identify arguments concerning text
and intent in support of the petitioner or the respondent, and also whether
the validity of these arguments was disputed by the opposing party. Then
they compared the presence of these legal factors to the case outcomes and
found that most justices did not support text or intent arguments that would
lead them to take a position contrary to their ideological preferences. Thus
they concluded that justices, rather than basing their decisions on arguments
about text and intent, use these arguments selectively to support the outcome
that is in line with their personal policy preferences. They did find that conservative justices were more likely to support the liberal side in a case when
that party made an undisputed claim that the plain meaning of the text supported him or her. They found no similar results for conservative justices on
undisputed claims about the intent of the framers or by liberal justices about
either text or intent. Because Segal and Howard did not have a priori beliefs
about that specific finding, they did not make much about this, following the
inferential rule that while it is proper to claim support for a hypothesis that
has been expanded in light of empirical findings if it fits more circumstances
than originally believed, it is improper to claim support for a hypothesis that
has been narrowed in light of empirical findings if it fits fewer circumstances
than originally believed (Epstein & King, 2002, p. 54).
Bailey and Maltzman (2008) pioneered another approach to test for the
influence of legal factors on judicial decision-making. They make the
assumption that the president and members of Congress who take a position
with respect to how a certain Supreme Court case should be decided are
being influenced primarily by their personal policy preferences and not at
all, or at least less, by legal factors than are Supreme Court justices. This
assumption allows them to generate bridging observations and compare
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
the impact of legal factors, such as the importance of the First Amendment,
judicial restraint, and respect for precedent, on Supreme Court justices as
compared to elected officials. They find that the Supreme Court justices do
differ from elected officials in ways that are predicted by the legal factors
they consider. Thus, Bailey and Maltzman conclude that while Supreme
Court justices are still influenced by their personal policy preferences,
legal factors involving the First Amendment do matter to the justices as
well.
These conclusions, that Supreme Court justices are, for the most part, not
systematically influenced by precedent text, or the intent of the framers, supported the view of legal realists and attitudinalists that the justices were easily able to sidestep legal factors that threatened their ability to decide cases
based on their policy preferences. In addition, these findings provided suggestive evidence that the legal model could not accurately explain the behavior of Supreme Court Justices, Cognizant of these this, some scholars have
argued for a different interpretation of the legal model. This postpositive
view of the legal model argues that the legal model can be true as long as
the justices themselves believe that they are using appropriate legal criteria as the basis for their decisions (Gillman, 2001). This approach to the legal
model, however, is nonfalsifiable and thus is not at all useful (Segal & Spaeth,
2002, p. 433). In addition, with what we know about motivated reasoning it
would not be surprising if the justices did sincerely believe they were basing
their decisions on legal factors, even if their personal preferences were really
driving their decision-making (e.g., Baumeister & Newman, 1994; Braman &
Nelson, 2007; Kunda, 1990).
While the evidence for the operation of the legal model on the Supreme
Court was often lacking, scholars studying lower courts did uncover some
effects of legal factors on judges. Benesh and Martinek (2002), for example,
looked at a sample of confession cases decided by state supreme courts
between 1970 and 1991 and found an effect of Supreme Court precedent
on these decisions. Moreover, they find that this effect is not explained by
the judges’ desire to avoid reversal, but rather can be attributed to sincere
attempts by the judges to apply the precedent of the Supreme Court. Cross
and Tiller (1998) also find compliance with Supreme Court precedent by
judges at the Federal Court of Appeals. They, however, find compliance
is most likely when a so-called whistleblower, a judge of a different party
than the other two on the panel, is present. This, they argue, is because
the whistleblower can alert the other two judges to the fact that they are
letting their policy preferences guide their decision-making rather than legal
doctrine. Then, once this is evident to the judges, they will disregard their
personal policy preferences in favor of appropriate legal factors. Songer,
Segal, and Cameron (1994) likewise find evidence of the importance of
The Evolving View of the Law and Judicial Decision-Making
5
Supreme Court doctrine to judges on the United States Courts of Appeals
(USCA). Looking at a random sample of search and seizure cases decided
between 1961 and 1990, they find that the case facts (i.e., existence of a
warrant, justification for the search, location of the search) that influence
Supreme Court decisions on search and seizure cases similarly influence
decision-making on the USCA. They interpret this as evidence of congruence between Supreme Court decision-making and decision-making at
the USCA. They also find a high degree of responsiveness between the
Supreme Court and the USCA, because as the Supreme Court gets more
conservative so too does the USCA even after controlling for the makeup
of the appeals court judges. Thus, although very little evidence supports
the legal model at the Supreme Court level, there is some evidence to
suggest that legal factors do influence lower court judges in the hierarchy of
justice.
CUTTING-EDGE WORK ON THE LAW AND JUDICIAL
DECISION-MAKING
Despite the lack of evidence for the legal model in early studies, scholars
have responded by theorizing and testing new ways and new reasons why
legal factors may influence judicial decision-making. The most prominent
and controversial of these approaches is jurisprudential regime theory (JRT).
Developed by Richards and Kritzer (2002), JRT argues that the justices create different regimes that structure decision-making for a particular set of
cases by specifying which case facts are the most important and also which
level of scrutiny the justices should apply. Richards and Kritizer test their
theory by applying it to free speech cases. They identify Grayned v. City of
Rockford (1972) as the case in which the justices created a new jurisprudential regime to govern how they would decide free speech cases in the future.
The regime set up in Grayned, according to Richards and Kritizer, identified the type of speech as an important case fact and specified that regulations of less protected speech should be evaluated by a rational basis test,
while content neutral speech regulations would be subject to intermediate
scrutiny and content-based restrictions to strict scrutiny. To test and see if the
impact of case facts, including type of speech, differ before and after Grayned,
Richards and Kritizer use a Chow test to see if the slope coefficients of the
case change significantly through the period of study. Using this approach,
they identify several important structural breaks, with a large break occurring at Grayned. Thus, they conclude that there is an evidence for the existence of jurisprudential regimes, at least with respect to free speech cases.
Their attempts to apply this theory to others substantive areas of law, such as
establishment, administration, and search and seizure cases, have produced
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
mixed results (Richards & Kritzer, 2003, 2005; Richards, Smith, & Kritzer,
2006).
Although JRT identifies and tests a new way in which the law may
affect judicial decision-making, this theory has not been without its critics.
Theoretically, JRT has been criticized for assuming that Supreme Court
decision-making as primarily stable, interrupted only by a few breaks in
which new regimes are formed (Lax & Rader, 2010). In addition, although
it may be shown that legal factors matter differently following a regime
change, the regimes are created by the justices and thus may be affected by
the policy preferences of the justices (Baum, 2011; Richards & Kritzer, 2002).
Most of the criticism of JRT, however, has made methodological. Lax and
Rader (2010) in particular question Richards and Kritzer’s use of the Chow
test, because their data clearly violates the critical assumption of independence. Lax and Rader develop a new and more appropriate randomization
test, which does not require the independence assumption. By randomly
shuffling the data into before and after groups, they find significant Chow
test results from data that could not have any systematic differences. They
thus conclude that many of the changes identified by Richards and Kritizer
as significant could well have occurred by chance, with the probability of
Type I errors being as high as 90%.
Beyond JRT, scholars have also been formulating other new theories about
when and how legal factors will impact judicial decision-making. Bartels
(2009), in particular, has articulated a new theory about when legal factors
can be expected to constrain the justices from implementing their personal
policy preferences. According to Bartels, this is dependent on the level of
scrutiny adopted by the court. He tests two different possibilities. The first
is the idea that the justices will be more constrained when there is a greater
presumption about the outcome of the case. This occurs when the court uses
either strict scrutiny or the rational basis test. The second possibility is that
the justices will be more constrained as the level of scrutiny increases. This
suggests that the justices would be the most constrained in strict scrutiny
cases, followed by intermediate scrutiny cases, and lastly by cases that use
the rational basis test. Bartels finds support for the idea that the justices are
more constrained in strict scrutiny cases, then they are in either intermediate
scrutiny or rational basis test cases. He nevertheless fails to find a difference in the extent to which the justices are constrained between intermediate
scrutiny and rational basis test cases. This leads him to conclude that only
in strict scrutiny cases are the justices effectively constrained from following
their personal policy preferences by legal factors.
Another new approach to the study of law and decision-making is based on
the idea that the justices do adhere to precedent, but do so for the policy benefits it brings, rather than out of a legal obligation to do so. This approach was
The Evolving View of the Law and Judicial Decision-Making
7
first explicated by Bueno de Mesquita and Stephenson (2002), who used a formal model to show that even justices assumed to be motivated solely by their
personal policy preferences will sometimes follow precedents that deviate
from their ideal points. The justices do so because there is a value in upholding precedent. Specifically, longer standing and more developed precedents
communicate more information to lower courts than do new decisions. Thus,
the justices are in effect compromising a little on their policy preferences in
the hopes that the lower courts will be better suited to make decisions consistent with the preferences of the Supreme Court. Essentially, the upper court
judges in this model use a mean squared error criterion, trading off a little bit
of bias for great greater efficiency. Hansford and Spriggs (2006) similarly see
precedent as something that justices can use to their own benefit. They argue
that the justices use precedent to move policy closer to their ideal points and
also to enhance the legitimacy of their rulings, which makes their decisions
more difficult for the other branches to ignore. In both instances, the justices
are able to use precedent to produce outcomes that are more favorable to
their own policy preferences.
KEY ISSUES GOING FORWARD FOR RESEARCH ON THE LAW AND
JUDICIAL DECISION-MAKING
Cleary, there has been a lot of progress in research aimed at understanding
how, when, and why legal factors impact judicial decision-making. However,
there are still many issues and exciting new avenues for further research
on this topic. One issue that has yet to be resolved, but has intriguing new
possibilities, is the issue of how scholars should measure legal doctrine
(Friedman & Martin, 2011). One new approach that scholars in the field are
beginning to use involves text-based analysis of Supreme Court opinions.
Text-based analysis offers researches several advantages, including the ability to analyze large amounts of text without relying on coders and to focus
on the content of opinions, where legal influences may be more apparent,
rather than the just on case outcomes (McGuire & Vanberg, 2005). There
are a variety of text-based analysis programs now being used by scholars.
For example, Wordscores can be used to generate an ideological score for
a certain piece of text. Wordscores works by first counting the words in
reference texts that are prespecified by the researcher as either a liberal or
conservative text. The words in the reference texts are then assigned ideological scores based on their frequency in the liberal or conservative references
texts. Then the new texts can be scored by calculating a weighted average
of the ideological scores of its words. This approach, however, requires the
assumption that texts of similar ideological positions use similar words
(McGuire & Vanberg, 2005). This program has been applied to the field of
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
judicial research by McGuire and Vanberg (2005) who attempt to assign
ideological scores to Supreme Court opinions on free exercise cases. They
find that while the program does not differentiate well between cases of
different ideological directions, because of the tendency of the Court to use
similar language in both types of cases, the program can deduce the relative
ideological ordering of cases decided in the same ideological direction.
While this study did not directly use Wordscores to examine the influence
of legal factors on judicial decision-making, it is easy to see how having
ideological scores of Supreme Court opinions could potentially be used
to assess the impact of both the judges’ ideology and legal factors on case
opinions.
Wcopyfind, a plagiarism detection program, is another text-based software
that has been gaining popularity in judicial research as an alternative way
to measure legal doctrine. It has been used by scholars, however, to measure
how legal arguments make their way through cases (Collins, Corley, & Hamner, 2013; Corley, 2008; Corley, Collins, & Calvin, 2011). This allows scholars
to evaluate the legal text directly rather than just analyzing precedents, which
may not be as informative (Braman & Pickerill, 2011). Corley (2008) used
this software to examine whether the legal arguments made in the parties’
briefs affect Supreme Court opinions. She finds that the Court does sometimes use language that is very similar to the language used in the parties’
briefs. Moreover, she finds that the Court is more likely to incorporate language from the parties’ briefs when the briefs are of better quality and pertain
to highly salient cases. This suggests that legal factors can affect the content
of Supreme Court opinions. However, there is a role for ideology to play as
well. Corley also finds that the Court is more likely to use similar language
when the party filing the brief is ideologically closer to the Court. Using similar methods, Corley, Collins, and Calvin (2011) examined what impact the
legal arguments contained in lower court decisions had on Supreme Court
opinions. They find that Supreme Court does have a tendency to use similar
language to lower courts, and that the tendency is heighted when the judges
on the lower court are more prestigious, when the lower court opinion is a
majority opinion, and when the lower court opinion is published. This suggests that the development of legal doctrine by the federal courts is not just
a top-down process, but involves bottom-up processes as well (Beim, 2013;
Mak, 2009).
A more recent study also uses Wcopyfind to test whether the legal arguments used in amicus curiae briefs contain original arguments. They find
that for the most part they do and speculate that this may explain why amicus curiae beliefs are so influential on the Court (Collins, Corley, & Hamner, 2013). Although Wcopyfind has been used already in several studies to
see how legal arguments affect the Supreme Court, its potential is far from
The Evolving View of the Law and Judicial Decision-Making
9
exhausted. In particular, it could be used to test the new argument that precedent is a tool used by justices to help them achieve their policy preferences.
This could be done by assessing whether the opinions issued by lower courts
are more similar to the decisions of the Supreme Court when they are based
on longer standing and more developed precedents.
Citation analysis is another new method that allows scholars to measure
legal doctrine. Citation analysis involves estimating ideological scores for
case opinions based on the type and treatment of the precedents cited by the
various cases. The use of this type of model requires assuming that the Court
is more likely to cite and treat a precedent positively if it is ideologically closer
to the Court (Clark & Lauderdale, 2010). Clark and Lauderdale (2010) use this
approach to score search and seizure and freedom of religion cases. They find
that the opinion scores they generate are highly comparable to the directional
variable in the Spaeth database. Similar to this approach is network analysis. Network analysis involves examining the relationship between different
opinions based on the cases that an opinion cites and the cases that cite those
opinions (Fowler et al., 2007). While neither of these methods have yet been
applied to the study of how the law influences judicial decision-making, their
potential to contribute to the debate, by making it easier to measure legal
doctrine, is great.
CONCLUSION
Research on the influence of the law on judicial decision-making has come
a long way since its inception. While the law was initially regarded as
a nuisance that the justices were easily able to get around in order to
make decisions based on their own policy preferences, scholars are now
recognizing how justices may actually be able to use the law to pursue
their polices preferences. In addition, scholars are constantly refining their
measures of legal doctrine and the development of several new approaches,
such as text-based analysis and citation and network analysis, all have the
potential to contribute substantially to the field. Already as a result of better
measures and methods, scholars have been increasingly able to pinpoint
specifically when, how, and importantly, why legal factors might affect
justices. In addition, scholars have made a lot of progress in understanding
what types of courts are more constrained by legal factors and which judges
from which courts are freer to let their personal policy preferences guide
their decision-making. Although much is now known about how the law
may influence judges and how the judges may use the law, many more
questions remain unanswered and these questions await the work of future
scholars.
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EMERGING TRENDS IN THE SOCIAL AND BEHAVIORAL SCIENCES
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JUSTINE D’ELIA-KUEPER SHORT BIOGRAPHY
Justine D’Elia-Kueper received her BA in political science from Ramapo College of NJ. She is currently working toward her doctorate in political science
at SUNY Stony Brook.
JEFFREY A. SEGAL SHORT BIOGRAPHY
Jeffrey A. Segal is SUNY Distinguished Professor and Chair of the political
science department at Stony Brook University. He is probably best known for
being one of the leading proponents, with Harold Spaeth, of the attitudinal
model of Supreme Court decision-making. He has twice won the Wadsworth
Award for an article or book published at least 10 years earlier that has had
a lasting impact on the field of law and courts, first for “Predicting Supreme
Court Decisions Probabilistically: The Search and Seizure Cases (1962–1981)”
(1984 American Political Science Review) and next for The Supreme Court and the
Attitudinal Model (with Harold J. Spaeth, 1993 Cambridge University Press).
He has also won Green Bag’s award for excellence in legal writing, plus an
ABA-sponsored national award for innovation in teaching law and courts,
and was a Guggenheim fellowship award recipient for 2011–2012. He was
elected to the American Academy of Arts and Sciences in 2012.
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