Debunking the Myths Surrounding the Attitudinal Model of Supreme Court Decision Making

34 Pages Posted: 19 Jul 2010 Last revised: 29 Aug 2010

See all articles by Donald R. Songer

Donald R. Songer

University of South Carolina

Jessica Link

University of South Carolina

Date Written: 2010

Abstract

According to the most prominent proponents of the Attitudinal Model, justices on the United States Supreme Court decide cases based solely on their political preferences and ideology. Law and precedent, these advocates say, provide no more than convenient rationalizations. At this point, there is little doubt that the political attitudes and ideology of the justices on the United States Supreme Court have a substantial effect on many of the outcomes adopted by the Court and on the votes of individual justices. The evidence in support of the proposition that the political values of the justices have a significant effect on many Supreme Court decisions is extensive. The myth of the Attitudinal Model is jumping from this well established fact to the conclusion that the Attitudinal Model is a complete explanation of Supreme Court decision making. Thus, the debate now seems to focus on whether the claim of Segal and Spaeth that attitudes comprise “a complete and adequate model of Supreme Court’s decisions on the merits” is supported by the evidence.

In recent years there has been accumulating evidence that contrary to these claims, non-strategic considerations other than attitudes do appear to influence many of the decisions of the justices. Attitudes alone cannot explain why there are statistically significant associations between “jurisprudential regimes” and Court decisions; or why close to 40% of the Court’s decisions are unanimous; or why the extent of “disordered voting” is so common among the non-unanimous decisions.

We contribute to this ongoing debate by examining the problem of The Dog That Did Not Bark. If the Attitudinal Model was correct and the justices cared primarily about the ideological content of legal policy, they certainly would not leave standing important policy that is contrary to the political preferences of the majority of the members of the Court. But the analysis in this paper demonstrates that a large number of controversial civil liberties policies adopted by the Warren Court have been left standing by the Supreme Court for almost four decades after the majority of the Court was ideologically hostile to those policies.

Suggested Citation

Songer, Donald R. and Link, Jessica, Debunking the Myths Surrounding the Attitudinal Model of Supreme Court Decision Making (2010). APSA 2010 Annual Meeting Paper, Available at SSRN: https://ssrn.com/abstract=1644573

Donald R. Songer (Contact Author)

University of South Carolina ( email )

701 Main Street
Columbia, SC 29208
United States

Jessica Link

University of South Carolina ( email )

701 Main Street
Columbia, SC 29208
United States

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