Crucial and Routine Decisions: A New Explanation of Why Ideology Affects U.S. Supreme Court Decision Making the Way it Does
Tulane Law Review, Vol. 84, pp. 1491-1515, 2010
25 Pages Posted: 4 May 2010
Date Written: April 19, 2010
Models using judicial ideology to explain Supreme Court decision-making remain controversial due to their apparently limited explanatory scope. Civil liberties and civil rights decisions and those concerning economic policy appear to be well explained by the ideological attitudes of the justices. However, decisions in other areas show little relationship to these attitudes.
I suggest that this is due to the differing character of the decisions made by the Court in different areas. I hypothesize that decisions made in the civil rights and liberties and economic policy areas are crucial decisions; i.e. decisions by the justices that creatively change their environments through the exercise of judicial review. Long and short term expectations for issues dominated by crucial decisions cannot be generated efficiently since the outcomes are truly uncertain. Instead, each justice’s deliberations in these cases will concentrate on the possibility of highly detrimental or favorable outcomes that might occur. Since reliable probabilistic expectations cannot be generated justices use their ideological preferences to evaluate these “focus outcomes”. Thus, in types of cases where the justices are more likely to make crucial decisions, it is more likely that ideology will affect decision making. In issue areas where more stable environments are present, the justices can make routine decisions, i.e. decisions that follow probabilistic expectations and that stabilize over time. For these issues, ideology is less likely to be a useful explanation. I test this theory with an analysis of Supreme Court cases in different issue areas and end with some observations concerning the consequences of my findings.
Keywords: supreme court, decision making, uncertainty, attitudinal model
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