Über die Autorin bzw. den Autor

Michael A. Bailey is the Colonel William J. Walsh Professor in the Department of Government and Institute for Public Policy at Georgetown University. Forrest Maltzman is professor of political science at George Washington University. He is the author of "Competing Principals" and the coauthor of "Crafting Law on the Supreme Court" and "Advice and Dissent".

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"Do Supreme Court justices base their decisions on law or politics? Using clever measurement strategies and relentless coding of cases, Bailey and Maltzman answer this question: both. They are to be commended for careful political science that also takes the idea of law seriously. This book is a must-read for scholars and students who care about what motivates the justices of the Supreme Court."--Barry Friedman, New York University

"Using innovative methods, Bailey and Maltzman address fundamental issues about the forces that shape Supreme Court decisions. The book's findings are striking, and the authors' discussions of issues and findings are interesting and insightful. This is one of the best and most important books yet written about judicial behavior."--Lawrence Baum, Ohio State University

"This is one of a small number of the finest books I have read on judicial politics. It uses cutting-edge methods and smart arguments to bring an impressive and sophisticated perspective on political behavior to the study of the Supreme Court. Debunking the most extreme views of political scientists, it will attract a lot of attention."--Gregory Caldeira, Ohio State University

"The Constrained Court marks a major contribution to our understanding of the behavior of the U.S. Supreme Court. Providing important methodological innovations and previously unexplored findings, the authors examine novel ways in which external constraints limit the Court. This book genuinely breaks new ground."--Kevin T. McGuire, University of North Carolina, Chapel Hill

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The Constrained Court

PRINCETON UNIVERSITY PRESS

Contents

Preface........................................................................................ix1. Introduction................................................................................12. The Measure of Law: Estimating Preferences across Institutions and Time.....................173. Disentangling Law and Policy Preferences....................................................474. Law Matters.................................................................................645. Causes and Consequences of Diverse Legal Values.............................................806. Separation of Powers and the Strategic Constraint...........................................957. Signals from the Executive..................................................................1218. Conclusion..................................................................................140Appendix. Statistical Details..................................................................156Notes..........................................................................................175References.....................................................................................185Index..........................................................................................203

Chapter One

Immediately following the Supreme Court's ruling in Bush v. Gore (2000), George Washington University law professor Jeffrey Rosen expressed shock that the justices in the majority did "not even bother to cloak their willfulness in legal arguments intelligible to people of good faith." Rosen believed that the decision "made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor" (2000).

Rosen was not alone within the legal academy. Over five hundred law professors wrote a public letter "as teachers whose lives have been dedicated to the rule of law" to condemn the Court's decision (Berkowitz and Wittes 2001). They argued that the majority of justices had acted as "political proponents for candidate Bush, not as judges." One signatory "deplored the fact that one of his primary teachings to his students over a 40-year career in constitutional law-that the U.S. Supreme Court acts as a nonpartisan institution despite differing judicial philosophies-had been rendered null and void by the actions of the five justices who stopped the count" (Dickenson 2001).

Not all Court critics think justices are right-wing partisans. Conservatives, too, routinely attack the Court for pursuing political, not legal, aims. Onetime Supreme Court nominee and conservative icon Robert Bork characterizes the Supreme Court as "an active partisan on one side of our culture wars" (quoted in Boot 1998, vi). Conservative columnist Thomas Sowell claims "Supreme Court decisions suggest that too many justices are not satisfied with their role, and seek more sweeping powers as supreme policy-makers, grand second-guessers or philosopher-kings" (2010).

Many political scientists see politics on the Court as business as usual. Much of the discipline has long embraced the notion that judicial outcomes primarily reflect judicial policy preferences (see discussions in Friedman 2006; Tamanaha 2010). Indeed, seven years before Bush v. Gore political scientists Jeffrey Segal and Harold Spaeth predicted that "if a case on the outcome of a presidential election should reach the Supreme Court, ... the Court's decision might well turn on the personal preferences of the justices" (1993, 70). Bush v. Gore made Segal and Spaeth look like the oracles of Delphi.

If justices are indeed pursuing their personal policy preferences, those who believe that an independent judiciary undermines our democratic system have a strong argument. And the fears that were expressed at the founding will have come to pass. Federalist 78 noted that if the courts "should be disposed to exercise will instead of judgment, the consequence would be the substitution of their pleasure for that of the legislative body." The only democratic recourse would be the appointments process, which would, we could hope, elevate individuals to the bench who share the views of the people (Dahl 1957). However, if justices are unconstrained policymakers they need not remain in accord with popular wishes. And with the recent trends of appointing younger justices and the greater longevity of sitting justices, there is more reason to worry that the policy preferences of the Court could become disconnected from the popular will.

Not everyone believes justices are unconstrained policymakers, however. Many believe justices feel constrained to follow established legal principles. The operation of the Court and the norms of the legal community clearly support this. Justices parse legal doctrine in detailed opinions. Law students and journals analyze legal doctrine. Sitting judges express bafflement at the idea that law does not matter (Edwards 1998; Wald 1999). And we suspect that the law professors who objected to Bush v. Gore continue to teach that legal doctrines provide useful tools for understanding Court decisions.

One reason the legal model may rise above the ashes of Bush v. Gore is that justices routinely make decisions that appear to be inconsistent with their policy preferences. For example, in Dickerson v. United States (2000) the Court assessed the constitutionality of a law overturning Miranda v. Arizona (1966). Conservatives had long railed against Miranda and many saw Dickerson as a chance for conservative, Republican-appointed justices to reshape constitutional law. Surprisingly, though, the Court stood behind Miranda by a 7-2 majority. No less a conservative than Justice Rehnquist wrote an opinion that defended precedent and argued that since Miranda was a constitutionally based decision, Congress could not alter the Court's ruling by statute.

In addition, the Court is often unanimous. From 1950 to 2004, about 38 percent of Court decisions had no votes against the majority (Epstein, Segal, Spaeth, and Walker 2007, 227). This suggests that justices share legal values that can supersede policy preferences. While it is possible that policy-motivated justices can be unanimous if the alternative or legal status quo (e.g., upholding the lower court) has policy implications that are so extreme that no justice views this as a viable alternative, it is unlikely that they would do so as frequently as they do. The legal explanation of unanimous votes is that the "roughly similar forms of legal education and professional experience" of justices lead them to agree on cases for legal, not policy, reasons (Breyer 2005, 110).

Justices may also be subject to external constraints. In particular, the legislative and executive branches may be able to push the Court in favored directions with threats and persuasion, thereby attenuating the danger that the Court becomes a policymaker divorced from public will. Perhaps the most prominent example of such external influence is the "switch in time that saved nine" on West Coast Hotel v. Parrish (1937). After the Court struck down several New Deal laws, elected leaders became increasingly aggressive toward the Court, culminating in President Roosevelt's plan to "pack" the Court with more justices (Friedman 2009). One of the justices who frequently voted to strike government intervention in the economy, Justice Owen Roberts, suddenly voted to allow a Washington state minimum wage law. Roberts's change in tune relieved political pressure on the Court and sunk Roosevelt's Court-packing plan.

Hence we are faced with competing views about the role of the Supreme Court in the constitutional order. Many political scientists view the Court as a largely unconstrained policymaking body. Others believe there are constraints, either internal or external. Can empirical analysis resolve this debate? We believe it can. As social scientists, we agree with Segal and Spaeth (1994), who wrote that "it is a basic tenet of science, whether social, political or natural, that an untestable model has no explanatory power." We do not believe there is-nor does social science promise-an easy and definitive answer, but we are optimistic that advances in theory, data collection, and measurement can help us progress.

There are many benefits to understanding whether policy, law, or interinstitutional pressure shapes decisions made by justices. First, we can better explain the development of law. Many important cases have been decided by 5-4 votes, from Lochner v. New York (1905) to Escobedo v. Illinois (1964) to Miranda v. Arizona (1966) to Furman v. Georgia (1972) to Regents of the University of California v. Bakke (1978) to Texas v. Johnson (1989) (see, e.g., discussion in Tribe 1985, 32). If legal or political constraints switched votes in these cases, history and politics in the United States would be quite different.

Second, understanding the constraints faced by justices helps us assess and possibly even reform the Court. Whether justices simply follow their policy preferences affects the manner in which Congress and the president should interact with the judiciary. The optimal appointment process for justices who act as unelected policymakers looks different than one for justices who operate within legal and institutional constraints. If justices are purely political beings, judicial term limits may make sense in order to ensure that voters and their elected representatives have regular opportunities to influence who sits on the bench. Likewise, if justices are unconstrained policymakers the nomination and approval process for justices should perhaps be even more political. In addition, some argue that limits on the jurisdiction of the Court or challenges to its authority are reasonable if the Court is primarily policy oriented (Tushnet 1999).

Finally, how we view constraints on the Court affects our normative views of the Court. Is the Court legitimate? The executive and legislative branches derive their legitimacy from elections. Some argue that the Court can represent the public as well as the elected branches (Peretti 1999), but most believe that the Court derives its legitimacy from fealty to the Constitution and the law. A Court that is no different from a legislature may not have any moral standing (Ely 1991). As John Adams wrote in the Massachusetts Constitution of 1780, "the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men" (Adams, Adams, and Bowdoin 1780). Even Rosen (2006, 3-7), who believes that the Court does and should follow public opinion, believes that the legitimacy of the Court depends on judicial decisions being "accepted by the country as being rooted in constitutional principles rather than political expediency."

The Attitudinal Model and the Absence of Constraints

We begin our consideration of constraints on the Court with a model that says there are none-the attitudinal model. This model assumes that justices are "decision makers who always vote their unconstrained attitudes" (Epstein and Knight 1995, 2). As Segal and Spaeth summarize it, "simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he is extremely liberal" (1993, 65).

Attitudinal Model Claim: Justices' decisions reflect their unconstrained policy preferences.

Empirically oriented scholars have produced decades of research indicating that policy motivations best explain Supreme Court behavior (Spaeth 1961, 1964, 1979; Rohde and Spaeth 1976; Hagle and Spaeth 1992, 1993; Segal and Spaeth 1993, 2002; Segal and Cover 1989). Segal and Spaeth's book The Supreme Court and the Attitudinal Model has become required reading for students of the Court. The model is so influential that empirically oriented political scientists have "an almost pathological skepticism that law matters" (Friedman 2006, 261; see also Tamanaha 2010, 232). The attitudinal model builds on two intellectual foundations. First, legal realism in the early twentieth century highlighted the indeterminacy of law. This indeterminacy allows justices to inject their personal views (perhaps unconsciously) into the development of the law (Frank 2009 [1930]; Llewellyn 1962; Stephenson 2009; Tamanaha 2010). Second, the behavioral revolution in the middle of the twentieth century moved political science away from simple description and proscription toward theory building and testing (see Maltzman, Spriggs, and Wahlbeck 1999, 44; Tamanaha 2010, 111). Research in this vein emphasized observation and measurement, with Spaeth (1965) famously urging scholars to look at what justices do rather than what they say.

The attitudinal model is based on three premises. First, Supreme Court justices are subject to little or no oversight. Within the judicial branch justices face no oversight given the Supreme Court's position at the top of a judicial hierarchy (Segal and Spaeth 2002, 111; Posner 2005, 42). They arguably face little beyond the judicial branch due to the practical difficulty of overturning Supreme Court cases. Former solicitor general Ken Starr (2002) goes so far as to consider the Court "first among equals" in the constitutional order. While we will discuss the possibility of political oversight in both this chapter and chapter 6, it is plausible that, practically speaking, the Court has the final say on constitutional law in the United States given the relatively few instances in which Congress or a constitutional amendment has explicitly overruled the Supreme Court (J. Barnes 2004).

Second, the law is ambiguous enough to permit multiple interpretations (Segal and Spaeth 2002, 72). This is due not only to constitutional and statutory vagueness but also to the winnowing process that sends only a small fraction of all legal disputes to the Supreme Court. These are the truly tough cases and they are only before the justices because the proper legal conclusion is not straightforward (Cross 1997, 285). Posner (2005, 40) sums up this view when he writes, "Almost a quarter century as federal appellate judge has convinced me that it is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly." If both sides of a case have plausible legal grounds (and justices are subject to no oversight), justices can easily choose the side they prefer on policy grounds while maintaining an appearance of upholding the law.

The third premise of the attitudinal model is that justices care only about policy (Segal and Spaeth 2002, 111). Court cases often have profound policy implications-touching issues ranging from terrorism to segregation to abortion to elections to the death penalty and beyond-and attitudinalists argue that justices focus only on policy when deciding cases. In the attitudinal model, the legal views justices express in their opinions are simply smoke screens to cover their pursuit of policy.

In this book, we focus on two predictions of the attitudinal model. The first is that law does not matter. In The Supreme Court and the Attitudinal Model, Segal and Spaeth scoured Supreme Court history looking for influences of law. They concluded "we have not discovered any narrowly defined issues in which variables of a non-attitudinal sort operate" (1993, 359). They went on to write a book-length refutation of the claim that precedent influences Supreme Court behavior (Spaeth and Segal 1999; see also Brenner and Spaeth 1995). Bolstered by the partisan outcomes in Bush v. Gore, they describe a Supreme Court that is "activist and conservative ... [and] blatantly partisan" (2002, 430). Law in this view is "a low form of rational behavior," no more science than "creative writing, necromancy or finger painting" (Spaeth 1979, 64; cited in Gillman 2001, 470).

A second prediction of the attitudinal model holds that external actors do not influence justices. This prediction implies that a host of potential influences does not matter, including the legislative and executive branches. It is consistent with the Founders' intent of creating an independent judicial branch by providing justices with lifetime appointments and protection from a salary reduction (Hamilton, Madison, and Jay 2011, #78, #79). This corollary suggests that Congress will not be able to otherwise threaten the Court and the president will not be able to use the power, prestige, and legal infrastructure of the executive branch to influence the Court.

Neither of the attitudinal model predictions is foreordained. Segal and Spaeth developed the attitudinal model based on empirical evidence. It is possible that justices follow legal values or defer to Congress and the president; attitudinalists claim that as a matter of fact justices do not exhibit these behaviors.

Constrained by Legal Values

Not everyone agrees that justices are unconstrained. Many in law argue that the main constraint on justices "is an internal one: the judge's integrity and degree of commitment to engage in an unbiased search for the correct legal answer" (Tamanaha 2010, 189). Even legal realists thought that such constraints could and should matter (Stephenson 2009, 206). In its starkest form, this view suggests that justices vote in accordance with legal principles, irrespective of the policy implications. Justice Elena Kagan expressed such a view during her confirmation hearings. After admitting that "I've been a Democrat my whole life, my political views are generally progressive," she said her policy preferences would not influence her decisions as a judge: "You are looking at law all the way down, not your political preferences, not your personal preferences" (Kagan 2010).

(Continues...)

Excerpted from The Constrained Courtby Michael A. Bailey Forrest Maltzman Copyright © 2011 by Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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