On the Nature of Supreme Court Decision Making

Abstract

How does the U.S. Supreme Court reach decisions? Since the 1940s, scholars have focused on two distinct explanations. The legal model suggests that the rule of law (stare decisis) is the key determinant. The extralegal model posits that an array of sociological, psychological, and political factors produce judicial outcomes. To determine which model better accounted for judicial decisions, we used Supreme Court cases involving the imposition of the death penalty since 1972 and estimated and evaluated the models' success in accounting for decisional outcomes. Although both models performed quite satisfactorily, they possessed disturbing weaknesses. The legal perspective overpredicted liberal outcomes, the extralegal model conservative ones. Given these results, we tested another proposition, namely that extralegal and legal frameworks present codependent, not mutually exclusive, explanations of decision making. Based on these results, we offer an integrated model of Supreme Court decision making that contemplates a range of political and environmental forces and doctrinal constraints.

The Constraining Capacity of Legal Doctrine on the U.S. Supreme Court

“…Therefore, it is charged with the responsibility of providing guidance and clear signals to lower court judges and lawyers about how its doctrines should be interpreted. Efficient management of the lower courts and an instinct to maintain its institutional legitimacy prevents the Court from producing frequent, wholesale reversals of its precedents.Adopting some of these arguments in response to the attitudinal model, alternative perspectives contend that although ideology influences justices' choices, the law exerts an independent and concurrent influence as well (e.g., Bailey and Maltzman 2008;Baum 1997;George and Epstein 1992;Pritchett 1954;Richards and Kritzer 2002). I refer to such models as "hybrid models," and one of the most influential is Richards and Kritzer's (2002) "jurisprudential regimes theory," which posits that certain precedents create jurisprudential regimes-essentially legal doctrines created by the justices to structure future decision making-highlighting how legal standards should apply to certain types of fact situations.…”

Does the U.S. Constitution Need an Equal Rights Amendment?

“…Indeed, the extant social science literature on judging typically defines institutions as sets of rules that structure interactions (see, for example, Epstein and Knight 1998;Murphy 1964), not as rules that establish outcomes, and it typically views the choices judges make as a function of many other forces, including the judges' own political preferences and personal attributes, features of the external environment in which they deliberate, and the characteristics of the particular suits they must resolve (see, for example, Caldeira, Wright, and Zorn 1999;Cross and Tiller 1998;George and Epstein 1992;Gryski, Main, and Dixon 1986;Pinello 2003;Revesz 1997;Segal, Cameron, and Songer 1995).…”

“…What we do mean to suggest, rather, is that in none of these studies, or in any others we can identify, are the authors contending (in contrast to ERA supporters) that institutions determine outcomes in all circumstances and in all matters. In fact, a central message in the extant literature on judging (see especially George and Epstein 1992;Pinello 2003;Segal, Cameron, and Songer 1995) and the basic point of Mansbridge's (1986) analysis of the potential effect of an ERA is that rules may constrain courts, but they do not-as so much commentary on the amendment seems to maintain-mechanically lead them to make particular choices; many other factors may come into play.…”

Case Law versus Statute Law: An Evolutionary Comparison

“…More recently, Zywicki (2003), albeit conceding that common-law courts may have aimed at efficiency in the nineteenth century, concludes that they can no longer do so, being too influenced by idiosyncratic preferences and direct pressure from litigants. A vast literature has all but proved that Supreme Court decisions are shaped by ideology at least as much as by precedent (George and Epstein 1992;Brenner and Spaeth 1995;Songer and Lindquist 1996;Segal andSpaeth 1996, 2002;McGuire and MacKuen 2005;Posner 2005b;Hansford and Spriggs 2006). 1 Recent 1.…”