Two leading scholars of the Supreme Court explain and predict its decision making.
Panelists criticized and the authors defended THE SUPREME COURT AND THE ATTITUDINAL MODEL at an APSA panel in early September. I delayed writing until after attendance. The comments and lively exchanges have certainly enriched my review. Segal and Spaeth argue vigorously that the attitudinal model is the ONLY approach capable of revealing how Supreme Court decisions are made. It is this uncompromising argument that makes their work so controversial and leads commentators to give nearly exclusive attention to the authors' presentation of that model. Naturally, the panelists largely focused on the model and the bulk of what I write will do likewise. However, only five of the book's ten chapters directly argue for the attitudinal model. The authors also discuss the Court more generally and the book could be broadly used in an upper division or graduate course concerned with the Court. Thus at the end of this review, I will briefly note its strengths and weaknesses as a text. The attitudinal model rises from the work of Glendon Schubert and others (including Spaeth) in the 1960s. Borrowing theory from social psychology, they argued that judges' decisions are largely the product of their attitudes towards broad policies such as expansion of civil liberties or government regulation of business. The model is quite simple: the strength of justices' attitudes towards particular objects cause them to vote in a certain way in a given factual situation. The validity of the model is best depicted by the scalogram. The authors amass impressive evidence linking justices' attitudes to their votes. Most of it is drawn from previous research, with a not inconsiderable portion coming from earlier (but separate) works of Segal and Spaeth. There are some nice illustrations of the prevalence of attitudinal voting: e. g., Felix Frankfurter, the chief apostle of judicial restraint, is shown to have voted attitudinally in administrative agency cases. The authors make some progress getting around the circularity problem that plagued early research. (Researchers determined justices' attitudes by their votes and then explained their votes by their attitudes.) To do this, they measure attitudes through newspaper editorials at the time of appointment and through justices' earlier votes that are then validated through the prediction of later votes. And instead of relying on the Court's opinions to learn the facts of a case, they obtain them from lower court records. These do not fully solve the problem, but not too much else can be done with limited resources. Few who read Segal and Spaeth can plausibly deny some degree of causal linkage between attitudes and votes. Unfortunately, Segal and Spaeth preach attitude as if they were writing in 1963, not 1993. "The assertion that judges merely 'find' or 'discover' the law, and do not ever make it, continues to be propounded with the same vigor as of yore" (p. 5). While Justice Owen Roberts is once again hauled out for another round of target practice, no evidence from modern scholarship is cited in support of such widespread naivete. The authors do note a couple of passages in Justice Antonin Scalia's opinions indicating that he thinks HE decides constitutional cases by objective legal criteria and faulting other justices for failing in this respect. But a few Scalia quotes do not make a convincing case for mass self-delusion. Indeed, the authors cite evidence that the great majority of federal judges fully realize they often make policy in deciding cases. The upshot of their belaboring the obvious is that professional readers -- those reading this review -- may come to feel (as I did) that the authors are not taking our intelligence seriously. However, it is not preaching to the saved that makes THE SUPREME COURT AND THE ATTITUDINAL MODEL controversial. The rub is in the rigid and fundamentalist nature of the sermons. The attitudinal model, we are told, is the ONLY route to salvation. While conceding that Page 99 follows: "fleeting and idiosyncratic factors" will occasionally influence Supreme Court decisions, the authors assert that, "we are simply unable to demonstrate that [other] forces cause the justices to behave in any systematic way" (p. 363). Every fervent cause needs an enemy, so Segal and Spaeth create one by positing a so-called legal model as the only theoretical alternative to explaining the justices' behavior. They assert without references or follow-up discussion that "legalists do claim that their model not only should explain decisions, but also that it actually does do so" (p. 363). They then pose a test between the two models. But no test ever occurs. The legal model is too crippled to show up at the field and the attitudinal model wins by forfeit. The latter is a scientific model capable of being tested empirically. The legal "model" is not scientific; the authors concede that it cannot be empirically tested. It is not a model at all in the research sense of the term. It is merely a list of things such as textual meaning, drafters' intent and precedent that judges are said to consider when making decisions. Because no one can say what weight each of the legal components should contribute or how a judge should select the most relevant precedent (or the most relevant evidence of intent, etc.) from among those urged upon him or her, it is impossible to assess the strength of the legal model. In fact, the authors are not clear about the boundaries of the legal model. They include balancing as one of its components. To my mind, however, the justices' open use of balancing is an implicit admission of their subjectivity. Balancing occurs when prized values clash in a case. What else is balancing but a justice's own ranking of his or her attitudes toward those values in the factual situation at bar? Even though legal norms cannot be quantified, it does not follow that they contribute little or nothing to the justices' behavior. Segal and Spaeth write with an implicit bias against non-quantitative research; they see theoretical explanation as possible only when validated by data sets (see p. 67). Few of us quarrel with quantitative research and many of us pursue it ourselves. But if we insist that nothing else can be taken seriously, major segments of political science such as presidential studies (to say nothing of other social sciences such as anthropology) must be abandoned to the dilettantes. I believe that Segal and Spaeth's real "enemy" should be role theory, not the straw man of a so-called legal model. Unfortunately, they give this approach only marginal attention. While not particularly quantitative, role theory is a respected tool in the social sciences. Its most enthusiastic proponents argue that it explains much of human behavior, especially for people who occupy a societally defined occupational role such as a judgeship. J. Woodford Howard, James Gibson and others have applied role theory to judicial behavior (although little such work has been done about the Supreme Court). For judges, role theory would subsume the components of the so called legal model, but it is sophisticated enough to account also for incumbent role definitions as well as societal expectations and thus does not predict a single behavior pattern for all judges. Of course, there would be difficulties in comparing, quantitatively or otherwise, the predictions of role theory with those of the attitudinal model, but comparison would not be impossible as it is with the authors' unsubscribed and ill defined legal model. It must also be noted that Segal and Spaeth do not offer any explanation for a major facet of the Court's decisions. To the authors, decision making means which party wins, not what policy the Court's opinion establishes. They see opinions largely as verbal rationalizations designed to give the decision legal respectability and not as a true reflection of how the subscribing justices arrived at their vote. This is often the case, but it does not change the fact that it is the OPINION and not the vote that influences the behavior of lower court judges, administrative agencies, and the advice lawyers give their clients. Put otherwise, THE SUPREME COURT AND THE ATTITUDINAL MODEL is incomplete as a study of what the Supreme Court does. The attitudinal model may enable us to predict winning parties, but it does not let us predict Supreme Court policy. To Page 100 follows: illustrate, in BROWN V. BOARD OF EDUCATION the Court could have given victory to Linda Brown on grounds that black schools were physically inferior, but upheld the "separate but equal" doctrine so long as the schools were in fact equal. Segal and Spaeth's attitudinal model would have recorded the case as a victory for civil rights, but the Court would have been making a far different civil rights policy. Unfortunately, policy making cannot be detected adequately by the attitudinal model. As do attorneys, the authors worry more about prediction than explanation. But accurate predictions can occur without an understanding of cause and effect. Two and a half millennia ago, the Etruscans successfully predicted the tides solely on the basis of past tidal patterns and, in fact, the U. S. Weather Bureau follows essentially the same methods in predicting tides today. Isaac Newton gave us explanation, not accuracy. In fairness, much research necessarily begins with predictive models based upon correlations without initial worry about the nature of the independent variable. Moreover, Segal and Spaeth review the literature about the formation of judicial attitudes and find it rather unrevealing. Nonetheless, if attitudes are a major component in the explanation of judicial decision making and if as political scientists our charge is to explain cause and effect, we must seriously research (i.e., go beyond the barefoot correlation of votes with background variables) the processes by which judges acquire, maintain and change their attitudes. As noted at the beginning, THE SUPREME COURT AND THE ATTITUDINAL MODEL has potential use as a text in a class that focuses exclusively or in considerable part on the Supreme Court. With one exception, the authors cover the topics common to all texts about the Court. In some respects, they do an outstanding job. The chapter on "Getting Into Court" is quite detailed and answers many a student question (perhaps more accurately than an instructor can). A long chapter on the political history of the Court is especially valuable because most books about the Court's processes do not contain any direct discussion of its past. The one exception, not surprisingly, is that Segal and Spaeth completely ignore the opinion writing process and the exchanges between justices that often shape the final opinions. In sum, Segal and Spaeth have written a Bible for true believers and an inviting target for more ecumenical scholars of the Court. Even for the latter, however, THE SUPREME COURT AND THE ATTITUDINAL MODEL, brings together many findings from the literature that make an impressive case for the model's primacy. For some time to come, this book will be THE compilation of attitudinal research and THE exposition of the attitudinal model. It will be must reading in graduate seminars on the Court or judicial processes even for those professors who find it theoretically too uncompromising.