The Intersection of Judicial Attitudes and Litigant Selection Theories: Explaining U.S. Supreme Court Decision Making

Abstract

Two prominent theories of legal decision making provide seemingly contradictory explanations for judicial outcomes. In political science, the Attitudinal Model suggests that judicial outcomes are driven by judges' sincere policy preferences - judges bring their ideological inclinations to the decision making process and their case outcome choices largely reflect these policy preferences. In contrast, in the law and economics literature, Priest and Klein's well-known Selection Hypothesis posits that court outcomes are largely driven by the litigants' strategic choices in the selection of cases for formal dispute or adjudication - forward thinking litigants settle cases where potential judicial outcomes are readily discernable (e.g. judicial attitudes are known), hence nullifying the impact of judicial ideological preferences on case outcomes. We believe that the strategic case sorting process proposed in the law and economics literature does, in fact, affect the influence of judge ideology or attitudes on judicial outcomes. However, these two perspectives can be effectively wed to provide an integrated model of judicial decision making that accounts for the influences of both the strategic behavior of litigants and the attitudinal preferences of judges. We test this integrated model of decision making on case outcomes in the U.S. Supreme Court and employ an interactive specification to assess the influence of judicial ideology on Supreme Court outcomes while simultaneously accounting for litigants' (and justices) strategic case sorting behavior.

Keywords: selection hypothesis, litigants, judicial, politics, political, ideology, attitudinal, decision, supreme court, criminal procedure, criminal, regression, empirical, interaction, legal, strategic

JEL Classification: D74, C22, K14, K41