Whither the Attitudinal Model?
NEW INSTITUTIONALISM AND JUDICIAL
DECISION-MAKING:
A COMPARATIVE ANALYSIS OF EXPLANATORY
MODELS AT THE U. S. SUPREME COURT AND
U. S. COURT OF APPEALS
Donald M. Gooch, University of Missouri
William Schreckhise, University of Arkansas
Hypotheses


NULL: The attitudes of judges and justices at
the Supreme Court and Court of Appeals do
not differ substantively.
ALTERNATIVE: The attitudes of judges and
justices explains significantly less of the
variation in judicial decision-making at the
Court of Appeals level than it does at the
Supreme Court level.
Hypotheses (con’t)






NULL: Attitudinal variables fail to significantly account for
variation in judicial decision-making
ALTERNATIVE: Attitudinal variables significantly account for
variation in judicial decision-making
NULL: Strategic variables fail to significantly account for
variation in judicial decision-making
ALTERNATIVE: Strategic variables significantly account for
variation in judicial decision-making
NULL: Constitutive variables fail to significantly account for
variation in judicial decision-making
ALTERNATIVE: Constitutive variables significantly account for
variation in judicial decision-making
Importance

It is important to answer these kinds of
questions:



because it extends our understanding of
judicial decision-making to other levels of
analysis
because it provides a better predictive tool
for decisions in the courts
because it has implications for the
democratic nature of the U.S. government
Literature


Herman Pritchett’s landmark study on the
relationship between judicial attitudes and
decision-making paved the way for future
scholars.
Segal & Spaeth challenge the ‘legal model’
and suggest that the most significant causal
variable in judicial decision-making is the
attitudes of judges/justices.
Legal Model


The legal model posits that judges are neutral
administrators applying the law, and decisions
are determined by the legal precedents,
statutes, and the constitution as opposed to
judge-centered variables.
However, there is some dispute over whether
the legal model is an actual predictive model
rather than simply an expressed ideal.
CONSTITUTION,
STATUTES, LAWS,
AND LEGAL
PRINCIPLES
DECISION
IN THE
CASE
Attitudinal Model

The attitudinal model posits that judicial
attitudes (personal policy preferences of
the judges) are the most significant
explanatory factor in judicial decisionmaking.
ATTITUDE
DECISION
OF
JUDGE
IN THE
CASE
Strategic Model

The strategic model suggests that attitudes
significantly determine votes, but that these policy
preferences are constrained and influenced by the
‘institutional setting’ in that judges must bargain with
and accommodate fellow judicial actors (voting
fluidity) in attempting to see their preferences
realized in judicial outputs.
Strategic Bargaining
and Accommodation
DECISION
IN THE
CASE
ATTITUDE OF
JUDGE
ATTITUDES OF
OTHER JUDICIAL
ACTORS
Constitutive Model

INSTITUTIONAL
INFLUENCES
ON JUDGE
The judicial ‘perspective’ determines votes
according to the constitutive model. This
mind-set is influenced by the institutional role
of the judge and results in decisions made
based on such concepts as stare decisis, a
sense of obligation to the institution itself,
normative considerations, and institutional
‘missions.’
VIEWPOINT
ON JUDICIAL
ROLE
DECISION
IN THE
CASE
Judicial Decision-Making
Continuum
ATTITUDINAL
MODEL
ATTITUDES
DETERMINE
VOTES
STRATEGIC
MODEL
CONSTITUTIVE
MODEL
LEGAL
MODEL
ATTITUDES
DO NOT
DETERMINE
VOTES
JUDICIAL DECISION-MAKING MODELS
CONCEPT
Legal
Model
Attitudinal
Model
Strategic
Model
Constituti
ve Model
POLITICAL
ATTITUDES
OF JUDGES
Non-factor in
judicial decisionmaking
The explanatory
variable in judicial
decision-making
Most important
explanatory
variable, but
constrained by
strategic factors
A significant
explanatory
variable, but other
variables as
significant
PRECEDENTS,
STATUTES, AND
CONSTITUTION
The explanatory
variable in judicial
decision-making
Non-factor in
judicial decisionmaking
Barriers that must
be over-come or
accommodated
Institutional
influences on
judicial mind-set
OTHER JUDICIAL
ACTORS
Irrelevant in
judicial decisionmaking
Not a significant
factor in judicial
decision-making
Potential allies to
bargain with and
accommodate
Part of the
institutional
context
INSTITUTIONAL MINDSET
Viewpoint of the
judge as decision
maker dependent
on the law
Not a significant
factor in judicial
decision-making
Not a significant
factor in judicial
decision-making
An important
variable in judicial
decision-making
CASES
Disputes among
litigants resolved
according to
apolitical
interpretation of
the law
Opportunities to
advance political
preferences and
make significant
impacts on
important policies
Opportunities to
advance political /
policy preferences
constrained by
preferences of
other judges on
the court
A setting for
applying their
culturallydeveloped
interpretive
methodology
BARGAINING AND
ACCOMMODATION
Non-factor in
judicial decisionmaking
Not a significant
factor in judicial
decision-making
How judges
attempt to
persuade or be
persuaded by
fellow judges in
decisions.
Not a significant
factor in judicial
decision-making
JUDGE MOTIVATION
Impartial
application of the
law
Personal policy
preference of the
judge
Rational pursuit of
policy preference
in strategic
context
Internalized
institutional
mission w/n
historical context
Assumptions in
Judicial Decision-Making Models



Ideological values are static and stable over
time.
Variation in cases in terms of precedential
value, policy importance, history of
precedent, do not significantly impact the
explanation of judicial votes.
Variation within an issue area in terms of the
ideological implications of the case do not
significantly impact the explanation of judicial
votes.
Data


The data on Supreme Court justice decisions
was extracted from the USSC Judicial
Database and includes cases coded by
ideological direction of the vote and a variable
on the ideological scores of the justices.
The cases were selected based on the civil
liberties issue area (1st Amendment, criminal
procedure, etc.)
Data (con’t)



The Court of Appeals cases were drawn from
the USCA database and includes cases coded
by the ideological direction of the vote.
This data was merged with the ‘Auburn’ data
that contained various demographic variables
(including a dummy variable on the party of
the appointing president) on the judges at
the USCA level.
The cases were selected based on the civil
liberties issue area (1st Amendment, criminal
procedure, etc.)
Data (con’t)



The Poole-Rosenthal NOMINATE scores are 2dimensional dynamic coordinates estimated such that
each legislator’s point is allowed to move as a linear
function of time as measured by the Congress
number.
The NOMINATE scores for the presidents, House, and
Senate were obtained from Dr. Poole’s website at:
http://voteview.uh.edu/default_nomdata.htm
The D NOMINATE scores were utilized in this study
as they are comparable across Congresses. See also
Poole & Rosenthal, 1998.
Methodology


The model for the Supreme Court utilizes a
MLE statistical analysis by regressing the
independent variables (attitudinal, strategic,
etc.) along the dichotomous variable of the
direction of the justices’ votes.
The model expresses the dichotomous i as a
non-linear function of the explanatory
variables X1 +…Xi (Gujarati, 1995). This is
the conditional probability that the event will
occur given X1 +…Xi that is:

Pr (Yi = 1 ½ X1 +…Xi).
Methodology (con’t)
LOGIT () =  + b1X1 + b2X2 + b3X3 + b4X4
 = 1 if predicted vote is a liberal vote
= 0 if predicted vote is a conservative vote
X1 = Attitudinal Variable [Segal & Cover ideological scores for USSC Justices
ranging from –1 (conservative) to +1 (liberal)]
X2 = Strategic Environment variable [the ideological balance of the Supreme
Court ranging from –9 (conservative) to +9 (liberal) minus the
ideological score for the justice whose decision is being predicted]
X3 = Constitutive Environment variable (public approval of the Supreme
Court ranging from 0 to 100)
X4 = Strategic Environment 2 [median chamber nominate score for the
House ranging from a –1 (conservative) to a + 1 (liberal)]
Methodology (con’t)


A similar non-linear regression model was utilized to
test the judicial decision-making model in the Court
of Appeals data set.
At both levels of analysis:
1) a parsimonious attitudinal model was
estimated,
2) a model including attitudinal and strategic
variables was estimated, and
3) a model specifying attitudinal, strategic, and
constitutive variables was estimated.
Methodology (con’t)
LOGIT () =  + b1X1 + b2X2 + b3X3 + b4X4
 = 1 if predicted vote is a liberal vote
= 0 if predicted vote is a conservative vote
X1 = Attitudinal variable (judge ideology using presidential nominate
proxy scored twice plus the median chamber nominate score for
the Senate at the time of the judge’s appointment) ranging from - 3
(conservative) to + 3 (liberal)
X2 = Strategic Environment variable {the ideological balance of the Supreme
Court ranging from –9 (conservative) to +9 (liberal)}
X3 = Constitutive Environment variable (public approval of the Supreme
Court ranging from 0 to 100%)
X4 = Strategic Environment 2 variable [median chamber nominate score for the
House at the time of the court decision ranging from –1
(conservative) to +1 (liberal)]
Average Ideological Vote In Civil Liberties
President - USCA
Appointing
President
N of Judges
Appointed
Ideological Proxy
Value
Civil Liberties Vote
(mean)*
B. Harrison
96
1.00
.53
Bush
65
1.00
.30
Carter
2566
.00
.54
Cleveland
1
.00
.00
Coolidge
2030
1.00
.54
Eisenhower
5397
1.00
.62
F. Roosevelt
5157
.00
.53
Ford
696
1.00
.61
Harding
278
1.00
.60
Hoover
2324
1.00
.53
Kennedy
2342
.00
.56
L.B. Johnson
4698
.00
.56
McKinley
3
1.00
.67
Nixon
3796
1.00
.61
Reagan
1426
1.00
.66
T. Roosevelt
389
1.00
.37
Taft
113
1.00
.66
Truman
2609
.00
.55
Wilson
1306
.00
.54
Per
* The civil liberties mean vote extends from a value of 0 (liberal vote) to a value of 1 (conservative vote).
Average Ideological Vote In Civil Liberties Per
President - USSC
Appointing
President
N of Justices
Appointed
Party of
President
Predicted
Ideological
Score
(mean)*
Civil Liberties
Vote (mean)*
Roosevelt
5
D
.598
.2914
Truman
3
D
.00
-.0948
Eisenhower
5
R
.55
.1384
Kennedy
2
D
.25
.4776
Johnson
2
D
1.00
.6208
Nixon
4
R
-.78
-.4626
Ford
1
R
-.50
.0039
Reagan
4
R
-.588
-.5502
Bush
1
R
-.34
.0610
* The civil liberties mean vote extends from a value of 1 (liberal vote) to a value of 0 (conservative vote).
Results


A great deal of the variation in voting remains
unexplained by the attitudinal model (ex.
Justices Stevens, Scalia).
The attitudinal model does not fully explain
the votes of justices at the USSC level,
leaving significant room for strategic and
constitutive theories as explanative factors in
the judicial decision-making of justices on the
Supreme Court.
Results (con’t)



While the estimates of strategic influence
were significant at the USSC & USCA, they
did not offer any substantial leverage on the
voting of justices above that offered by the
attitudinal model.
The USCA models offer no explanatory value
above that of the modal classifications.
However, strategic and attitudinal variables
are significant.
The Constitutive Variable was insignificant at
the USSC and USCA levels.
Results (con’t)


The smaller percentage of the variation in the civil
liberties vote, the more conservative nature of the
voting, and the smaller variation from president to
president (see Figure 9) are all differences in the
USCA data as compared to the USSC data that may
be due to constitutive factors or strategic influences.
While the attitudinal model presents a statistically
significant explanation for decision-making at both
the USSC and USCA levels of analysis and is, the
measure utilized here does not explain variation in
the DV at the USCA.
Results (con’t)
The smaller percentage of the variation in the civil liberties vote,
the more conservative nature of the voting, and the smaller
variation from president to president (see Figure 9) are all
differences in the USCA data as compared to
the USSC data
Figure 9 - Civil Liberties Vote Average* per President
are differences
USSC & USCA
that may help
1.50
explain the
1.00
0.50
attitudinal model’s
USSC
USCA
0.00
failure at the
USCA.
-0.50
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
Cautionary Tale

Problems with Analysis




Models are under-specified
Models do not utilize the same measure for
judge ideology
Measure of the direction of the case is
blunt (conservative/liberal)
Does not account for the full range of the
types of judicial decisions
Whither this Study?




Level of analysis (natural courts rather
than individual justices)
Types of decisions rather than direction
of case
Other IV’s
More nuanced DV’s & IV’s
Court Typologies
Homogenous Court
+1
+1
+1
+1
+1
+1
+1
+1
+1
Divided Court
+1
+1
+1
+1
+1
-1
-1
-1
-1
Heterogeneous Court
+1
+.80
+.65
+.38
+.05
-.20
-.30
-.72
-1
Bush v. Gore (USSC)
END THE COUNTING (5-4)
YES
YES
YES
YES
YES
NO
NO
NO
NO
EQUAL PROTECTION (7-2)
YES
YES
YES
YES
YES
YES
YES
NO
NO
ARTICLE 2 (3-6)
YES
YES
YES
NO
NO
NO
NO
NO
NO