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Abstract:
Empirical scholars of the United States Supreme Court, Jeffrey Segal and Harold Spaeth, have long contended that Supreme Court decisions are based primarily upon the ideological beliefs of the justices, and that ideology alone accounts for the bulk of choices made in civil liberties cases. However, this conclusion results from the misinterpretation of an ecological regression model. The researchers never modeled the votes of the justices; they only analyzed an index of grouped aggregates. When announcing conclusions, however, scholars equated variation in a voting index with the frequency distribution of binary observations that comprised it. As a result, model conclusions were exaggerated and disciplinary misinformation was created. This work exposes and corrects this problem by re-estimating the relationship between justice ideology and votes with a multilevel approach that uses a logistic regression to directly examine the dependent variable prior to its manipulation into grouped data. The findings demonstrate that ideology models lose about two-thirds of the level of explanation researchers previously proclaimed. This new understanding supports a more limited critique of the role that ideology plays on the Court - one that has a long history in political science that predates the more value-dominant "attitudinal" framework.

Attitudinal Model, Segal and Spaeth, Political Science, Ecological Regression, Bivariate Ideology Model, Ecological Fallacy, Exaggeration

Abstract:
The resurgence of the new "originalism" among conservative American law professors is an intellectual movement that fundamentally misunderstands philosophy of language and law. The central problem is that most constitutional words are what Wittgenstein called "family resemblance ideas." This means that they consist only of a cluster of ideas that can be carried forth or implemented in numerous ways and formats. For example, what "cruel punishment" means linguistically are those choices, X, selected from an array of options, any combination of which bears a family resemblance to each other, had they been X. When generations make these choices to assemble their cruel-punishment "products," they are making "protocol choices." The central mistake of the new originalism is that it equates the protocol choices made by the framing generation with the meaning of the words in the constitution that necessitated the protocol election in the first place. This is a language fallacy. The meaning of language is always its use within the language culture, not the election of its cluster protocol. Hence, all that the framing generation ever gives us by way of their specific policy choices are illustrations of constitutional ideas. They do not give us the meaning of those words. Therefore, any generation that implements a legal rule containing a family-resemblance idea can only provide subsequent generations with suggestive guidance on how to carry out the rule. The new generation is always free to construct its own family protocol, so long as what it chooses belongs linguistically to the word's family-resemblance. What this means is that more than one culture across time can follow the same law differently, with each being obedient to its "original meaning." Also, unless law specifically says so, it never enacts any generation's cultural protocol. This is because the purpose of law is to regulate culture, not to sanctify it. Hence, culture is free to evolve and create new protocol that does not violate the grammar of the constitution.

originalism, philosophy of language, philosophy of law, jurisprudence, Wittgenstein, family-resemblance, cluster concept, linguistics, the original meaning of the constitution

Abstract:
Quantitative scholars of the Court purport to be engaged in empirical science. Yet, the great majority of works regarded as elite within the political science social network are deficient in one fundamentally critical way: their works do not generate scientific vocabulary. The key feature of science is that it creates a reductionist vocabulary that rigidly designates some phenomenon in the external world (e.g., water is H2O). Words like politics and ideology are not scientific terms. They do not rigidly designate. This causes or contributes to serious disciplinary problems. If scholars want to scientize their field, they have to begin jargonizing their phenomena of interest in the external world.

Of particular concern are the works in judicial politics that purport to study the influence of ideology on judicial decision making. Scholarship in this area routinely suffers from the following flaws: (1) the inability of the scholarly community to agree about what phenomenon in the external world its empirical works actually observe; (2) the adoption of perspective science that works not unlike certain forms of creation science; (3) the use of adversarial or group-driven author citation in journal articles; (4) the frequent deployment of reification; and (5) the practice of studying something in the external world with techniques that do not allow counterfactuals to exist.

Moreover, any scholar who constructs a quantitative model with ideology as an independent variable is engaging in a kind of nonsense or rhetoric. This is because quantitative methods cannot be used to demonstrate that a person's beliefs or actions are caused by ideology. This is because when the concept of ideology is deployed as a causal assertion, its grammar offers only normative criticism. Science can no more directly observe ideology in this sense of talking than it can concepts like integrity or virtue. The best that ideology scholars can ever hope for, therefore, is good normative criticism. Although behaviorism can contribute to a normative discussion, the simple fact is that quantitative models simply cannot ever directly estimate the effect that ideology has on beliefs or behavior, because this is fundamentally a normative conclusion.

quantitative ideology models, political science, attitudinal model, behaviorism, supreme court decision making, philosophy of science, wittgenstein