Ideological Voting Applied to the School Desegregation Cases in the Federal Courts of Appeals from the 1960's and 1970's

58 Pages Posted: 5 Sep 2012 Last revised: 26 Mar 2014

See all articles by Joseph A. Custer

Joseph A. Custer

Case Western Reserve University School of Law

Date Written: March 25, 2014


This article considers a research suggestion from Cas Sunstein to analyze segregation cases from the 1960's and 70's and whether three hypothesis he projected upon contemporary United States Court decisions in the article "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation," 90 Va. L. Rev. 301 (2004), involving the Attitudinal and Panel Effects Models of judicial ideology, would pertain.This article recognizes the importance of the Attitudinal Model amongst Circuit Court Judges in the 1960's and 70's and disavows the Panel Effects Models in consideration of the earlier decade decisions. Since the Panel Effects Model hypothesis were disproved, this study went further to analyze three other well-known judicial ideologies: Legal, Personal Attributes and Strategic. This article reports on the study of 103 United States Circuit Court cases from all Eleven Circuits in the 1960's and 70's. The issue of school desegregation was decided in all the Eleven Circuits but it was mostly concentrated in the Circuits that represented the most Southern states, this included the Fifth, Sixth, Eighth and Fourth Circuits. Some opinions decided in these four Circuits snaked their way through the turbulent civil rights decades of the 1950's, 60's and 70's and this study only reflected the seed cases, otherwise this study could have represented over three hundred cases.

The study in this article focused closely on thirty eight judges who voted on at least three panel decisions involving the issue of school desegregation. One additional Circuit Court judge, Ben Cameron, was included in this analysis despite the fact that he sat on only two school desegregation panel decisions due to the impact that this particular segregationist had upon civil rights and in particular his contentious relationship he had with the Fifth Circuit Four, a progressive group of Justices in the Fifth Circuit, that largely led the fight for school desegregation in the 1950's, 60's and 70's when the United States Supreme Court had been ineffective in offering direction in how desegregation should be implemented after the decisions in Brown.

Since one of the contentions of the study was the importance of the Attitudinal Model on Justices I decided to research how far back this particular ideology may have had an impact upon justices and found that it had been a factor since Marbury v. Madison. I also analyzed the Legal, Personal Attributes and Strategic Models with the Marbury case. In regard to the school desegregation cases, There were several findings that connote some interesting relationships in regard to the Personal Attributes Model. The Legal Model and Strategic Model seemed to be disproved in the school desegregation study due ti the fact that there was no clearly established precedent in guiding the Circuit Courts in implementing Brown in the 1960's and 70's. In conclusion, the future researcher will need to be careful in connoting a political party with a particular ideology. Sunstein's simple proxy stating that Democratic Presidents will appoint liberal judges and vice verse does not work for the 1950's, 1960's and 1970's.

Suggested Citation

Custer, Joseph A., Ideological Voting Applied to the School Desegregation Cases in the Federal Courts of Appeals from the 1960's and 1970's (March 25, 2014). 16 Scholar 1 (2013), Saint Louis U. Legal Studies Research Paper No. 2012-25, Available at SSRN: or

Joseph A. Custer (Contact Author)

Case Western Reserve University School of Law ( email )

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