How does the U.S. Supreme Court reach decisions? Since the 1940s, scholars have focused on two distinct explanations. The legal model suggests that the rule of law (stare decisis) is the key determinant. The extralegal model posits that an array of sociological, psychological, and political factors produce judicial outcomes. To determine which model better accounted for judicial decisions, we used Supreme Court cases involving the imposition of the death penalty since 1972 and estimated and evaluated the models' success in accounting for decisional outcomes. Although both models performed quite satisfactorily, they possessed disturbing weaknesses. The legal perspective overpredicted liberal outcomes, the extralegal model conservative ones. Given these results, we tested another proposition, namely that extralegal and legal frameworks present codependent, not mutually exclusive, explanations of decision making. Based on these results, we offer an integrated model of Supreme Court decision making that contemplates a range of political and environmental forces and doctrinal constraints.

On the nature of supreme court decision making

political attitudes. Jurisprudential regimes identify relevant case factors and/or set the level of scrutiny or balancing the justices will use. These jurisprudential regimes have the potential to make a significant difference in the decisions of the justices. We identify a candidate jurisprudential regime, content-neutrality, which appears to govern the general area of free expression law. The Court applies the strictest standard of review to regulations of expression that target the content or viewpoint of expression. Relying on a series of statistical tests using logistic regression, we find that the justices take seriously this jurisprudential regime. oes law influence the justices of the U.S. Supreme Court as they decide cases? Some leading scholars of the Supreme Court assert that law makes little difference. According to the most extreme version of this position, justices largely follow their personal ideological preferences-a view that the Supreme Court itself did much to enhance in Bush v. Gore (2000). If this is true, then the Supreme Court differs from a small legislative body only in the selection and tenure of its members, its technical rules of procedure, and its inability, at least formally, to initiate issues to consider. Whether or not courts generally, and the Supreme Court specifically, differ from legislative bodies has major implications for how we think about the role of courts and analyze their processes and outputs. We contend that courts, including the Supreme Court, are different, and that part of this difference is the role of law in decision making. In this article, we describe and test a new approach to incorporating law into statistical models of Supreme Court decision making. At the same time, we do not reject the importance, or even the dominance, of attitudinal influences on the Court's decisions. However, we argue that one must move beyond the images of the role of law as a mechanistic, autonomous force to arrive at a legal model that is relevant at the Supreme Court level. Segal and Spaeth (1993, 1994; Spaeth and Segal 1999), the leading proponents of the attitudinal model of Supreme Court decision making, argue that justices of the Court are free to decide cases solely in line with their policy (attitudinal) preferences and almost always do so decide. According to this interpretation the justices' freedom to pursue their own policy goals is due to their specific institutional situation: They possess life tenure, sit at the pinnacle of the judicial hierarchy, seldom have ambition for higher office, choose which cases they will decide, and have little fear of being overturned by the elected branches of government, particularly in constitutional interpretation cases (Spaeth and Segal 1999). We do not dispute that the Supreme Court's institutional setting frees justices from the kinds of constraints that are faced by lower court judges, elected officeholders, or appointees serving either fixed terms of office or at the pleasure of some other officeholder. However, freedom from review or electoral accountability does not prevent the justices themselves from erecting other constraints that shape

http://epstein.wustl.edu/research/courses.judpol.Richards.pdf

Jurisprudential Regimes in Supreme Court Decision Making

[Behavioral research has] the potential to engender serious confusion over judicial decision making. Even worse, [it] may mislead the unsuspecting … into thinking that judges are lawless in their decision making, influenced more by personal ideology than legal principles…. I have no doubt that careful statistical analysis, cautiously interpreted, may conceivably shed some light on judicial decision making. But serious scholars seeking to analyze the work of the courts cannot simply ignore the internal experiences of judges as irrelevant or disingenuously expressed. (Edwards 1998, 1337-38)

[E]ven if Chief Judge Edwards is accurately reporting his perceptions, one must worry about whether those perceptions are in fact an accurate portrayal of the work of his court…. [W]hen leaders tell the public that their institutions function well and that the views of potential critics should be disregarded, skepticism and empirical testing are appropriate. (Revesz 1999, 845)

What's Law Got to Do with It? Judicial Behavioralists Test the "Legal Model" of Judicial Decision Making

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S026144480000464X

Language of the law

This essay was originally presented at the Conference on American and German Traditions of Sociological Jurisprudence and Critical Legal Thought organized by the Center for European Legal Policy, Bremen, Federal Republic of Germany, July 10-12, 1986. Subsequent versions were discussed at the Department of Sociology, Northwestern University (February 1987) and the Workshop on Legal Theory at the University of Virginia Law School (March 1987). Comments by participants at these events, members of the Amherst Seminar, Boaventura Santos, Kristin Bumiller, and G. Edward White are gratefully acknowledged. An earlier version of the paper appears in Joerges & Trubek, eds., Critical Legal Thought in Germany and America: A German-American Debate (Baden-Baden: NOMOS, 1989).

“Critical Empiricism” in American Legal Studies: Paradox, Program, or Pandora's Box?

This book examines theories of language for their contribution to understanding the interpretation of constitutional law by the Supreme Court.

John Brigham

Papers

Constitutional Language: An Interpretation of Judicial Decision