Toward A Cultural Theory of Judicial Behavior: Identifying and Overcoming Limitations in the Attitudinal Model

Abstract

Judicial ideology as conceptualized in the attitudinal model (AM) developed by Jeffrey Segal and Harold Spaeth remains the dominant explanation for US Supreme Court decisions. However, while there is consensus that judicial ideology is crucial in explaining Court behavior, the AM remains under-theorized, time-limited, and unresponsive to scholarly advances in the study of ideology. This paper argues that the cultural theory (CT) developed by Mary Douglas, Aaron Wildavsky, and others can help address these problems. CT promises to advance the study of judicial behavior by providing a theory of ideology, rather than only the application of ideological labels, and by providing a two dimensional account of ideological behavior that avoids the anomalies that arise from relying on the AM’s one dimensional, liberal-conservative conception. To illustrate problems with the AM and the plausibility of our proposed CT solution, we compare explanations provided by both approaches for Court interpretations of First, Fourth, and Fourteenth Amendment rights. In each constitutional area, the attitudinal orientations specified by CT — that is, egalitarian, hierarchical, and individualistic cultural biases valuing equality, order, and liberty, respectively — provide a richer and more valid account of judicial attitudes and legal change than liberalism and conservatism alone.