It is Political: Using the Models of Judicial Decision-Making to Explain the Ideological History of Title VII
Nova Southeastern University Shepard Broad Law Center
May 22, 2014
St. John's Law Review, Symposium: Title VII at 50, Forthcoming
NSU Shepard Broad Law Center Research Paper No. 14-002
Scholars and observers often explain or interpret Supreme Court decisions based on the ideology of the sitting Justices. Many offer a similarly political account of the Court’s decisions in actions brought under Title VII of the Civil Rights Act of 1964 (“Title VII”). Certain events in the history of Title VII do suggest ideological decision-making by the Supreme Court. Dozens of the Court’s Title VII opinions are split between the conservative and liberal Justices. On three separate occasions, including most recently the Lilly Ledbetter Fair Pay Act of 2009, a more liberal Congress amended Title VII in order to override the Supreme Court’s conservative interpretation of the statute. Yet subsequent to each of these amendments, the conservative Justices continued to vote to restrict Title VII, apparently following their political preference over Congressional intent.
The full history of Title VII, however, does not conclusively establish that the Supreme Court is deciding cases according to ideological viewpoint. Although numerous split decisions fall along ideological lines, other cases, including a number of unanimous decisions, reflect votes contrary to political viewpoint and potentially indicate a different dynamic. The fifty years of Title VII jurisprudence therefore present the opportunity to assess whether Justices’ votes on issues of employment discrimination are determined by their respective ideology.
To answer this question, this article turns to the work of political science scholars, specifically, the models of judicial decision-making developed by political theorists over the past two decades. These models use sophisticated empirical techniques to test whether the Justices of the Supreme Court vote according to their ideology and to explain the circumstances when Justices vote contrary to their viewpoint. Their work can be divided into three predominant models, attitudinal, strategic and integrated, all of which agree that that ideology influences Supreme Court decisions, but offer different explanations for the exceptions when the Court’s ideological pursuit is apparently constrained. The political science models therefore offer the potential to explain Title VII’s varied jurisprudence.
This potential, however, is not fully realized. The strategic and integrated models fail to effectively explain a significant portion of the Supreme Court’s Title VII decisions because these models have generally failed to study the effect of statutory overrides on the Court’s decision-making. This article therefore draws on the few studies of overrides that are available, and some of the more context-specific analyses, to draw a more nuanced model for Title VII and to account for the apparent exceptions to ideological decision-making. Ultimately, this article asserts that the history of Title VII is not only political, but particularly so, with the Supreme Court exhibiting strong resistance to any restraint on their ideological voting in the area of employment discrimination.
Number of Pages in PDF File: 38Accepted Paper Series
Date posted: May 25, 2014
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