Reviewed by Richard L. Pacelle, Jr. Department of Political Science, Georgia Southern University. Email: rpacelle [at] georgiasouthern.edu
To the extent that there has been a recent paradigm in Political Science, it is likely to have been the attitudinal model of judicial decision making. But in The Constrained Court, Michael Bailey and Forrest Maltzman have launched a frontal assault on the citadel. Their book is a tour de force that will likely supplant the attitudinal model and become a basis for a new paradigm for understanding decision making. For decades, analysts and scholars have dismissed the ubiquitous scope of the attitudinal model, while conceding the primacy of the preferences of the justices. But analysts struggled to show empirically viable alternatives to the attitudinal model. Political scientists were left with the functional equivalent of Potter Stewart’s description of obscenity – we knew exceptions to the attitudinal model when we saw them. In this remarkable, but relatively brief, book, Bailey and Maltzman have armed and empowered critics of the attitudinal model.
The idea that justices are unconstrained actors who vote their sincere policy preferences became a logical conclusion of the early empirical work of C. Herman Pritchett. Glendon Schubert (1965) built sophisticated models of judicial behavior with i points and j points. Jeffrey Segal and Harold Spaeth (2002) have advanced and refined the models to their current status. Proponents of the attitudinal model constructed a parsimonious explanation based on psychological theory. They based their theory on the fact that justices have reached the pinnacle of their careers and have life time tenure, thus freeing them to act on their sincere preferences. Empirically and anecdotally, it was clear that most justices were ideologically consistent in their decision making. Segal and Spaeth argued that the legal model, the primary alternative to the attitudinal model, was simply a normative construct and not falsifiable.
Analysts were quick to find exceptions to the influence of the attitudinal variables: unanimous decisions were excluded from attitudinal models, inconsistent decisions by ideological justices could simply be re-scaled, measures of attitudes were based on the votes they were trying to explain, anecdotal evidence contradicted the rigid model, and even Segal and Spaeth admitted that some justices seem to change their sincere preferences as their tenure on the Court lengthened (Epstein, Hoekstra, Segal, and Spaeth (1998)). Subsequent analysis argued that justices were strategic in their decision making whether internally among their colleagues or in response to the elected branches. [*202]
Theoretically, public law scholars could accept that “law matters” and justices are cognizant of the institutional limitations of the judiciary. Part of the continued viability of the attitudinal model, however, has been tied to the results of previous studies that have challenged it. The results of separation of powers models have been mixed, to be charitable. But the aggregate conclusions have not been sufficient to undermine the attitudinal model. The legal model was even more tenuous. Basically, there was a dearth of empirical studies because there were no valid measures of “the law.” Bailey and Maltzman argue convincingly that they have conclusive results for the former and valid measures of the latter. Following a careful and creative process, they have developed refined measures based on “bridge observations” that bring a wealth of new data to understanding judicial decision making. Indeed, the authors have just under a half-million observations to bring to bear, drawn from sources such as presidential papers, solicitor general filings, statements in the Congressional Record, roll-call votes, and justices’ votes as recorded in the Spaeth dataset. They demonstrate the differences between their measures and the traditional measures that have governed this area of research. Thus, Bailey and Maltzman are able to animate the legal model and examine the impact of external influences. One can quibble with some of their means but the result is a dynamic new way of understanding Supreme Court decision making.
Bailey and Maltzman start with a simple question that they appear to answer in the title: are Supreme Court justices constrained? As with the attitudinal model, the unit of analysis is the individual justice, so determining whether the Court is indeed constrained is done by extension. This is traditionally the missing link in judicial decision making studies. Proponents of the attitudinal model examine individual decision making; implicitly the outputs of the Court are the product of nine individuals pursuing their sincere preferences. If that was the case, then the Court should discard precedents with greater frequency. Bailey and Maltzman, by contrast, posit that justices have different levels or thresholds of support for precedent and deference to the elected branches. Their ability to make the connection between the individual and institutional levels lends credence to the study.
The Constrained Court is wide ranging. The authors tread the traditional theoretical roots of judicial decision making. The book is painstaking in discussing the methodological problems that have plagued analysts and in explaining their means of resolving those concerns. In fact, the narrative that discusses the actual results is rather sparse in places. There are numerous appendices to detail the research design. The centerpiece of the study, the Bailey bridge scores, is a fascinating invention. The authors avoid some of the major dilemmas that have plagued scholars trying to devise valid and reliable measures for understanding decision making. The public statements and positions of members of Congress and the president as well as the decisions of justices who have since left the Court are used to identify the ideological component of the cases. The ability to specify cut points is a major advance. The authors create precise preference estimates that hold across time and [*203] across institutions. They claim that “The payoff is that the method produces preference estimates that avoid the anomalies found with other widely used measures, estimates that can be used to address a broad array of questions in the literature” (p.43).
Bailey and Maltzman identify stare decisis, judicial deference, and strict interpretation of the First Amendment as potential legal components of decision making. They demonstrate that respect for precedent has influenced every justice. They find considerable variation in how these doctrines affect different justices. Such variation is a function, in part, of the differing experiences justices have brought to the bench. Justices with prior judicial experience are more likely to be influenced by precedent than their colleagues who did not come from lower courts. The results have some measure of face validity. The justices who show up as being most influenced by “the law” tend to be the ones that have been identified as such anecdotally.
Just the ability to provide empirical evidence that law matters makes this a profound book. The authors go much further. They show that justices are constrained by political forces. Justices are not isolated from what happens in the legislative and executive branches, and instead respond to changes in the preferences of Congress and the president. Knowing that the justices are influenced by these constraints invites another question: are the justices deferential because they consider deference to be a good idea normatively or is it because they are leery of potential retaliation from one of the other branches? Bailey and Maltzman are able to differentiate between the two. This is another major advance for the study of judicial decision making. Justices can be constrained by legal values or external actors: the core of the legal and strategic models respectively.
The authors conclude that “Justices act in an environment shaped by constraints. Some constraints, such as the law, are not binding. But they are influential and often separate justices from their co-ideologues in the elected branches. Other constraints, like the strategic influence of Congress and the president … push justices in different directions as well” (p.155). The authors find that the constraints on the justices are conditional. For instance, in statutory cases, the justices appear to be deferential to the elected branches. The demonstrated differences between normatively based deference and strategically based deference have a temporal component as well. The authors contend that strategic based deference is dominant more recently, while normatively based deference was the rule in previous periods. There is also evidence of the Court moving in the ideological direction of the occupant of the White House, perhaps as a hedge to avoid legislative retaliation.
That I have a couple of concerns should not detract from the excellence of this work. The bridge scores are a significant advance, but the use of statements by members of Congress is a bit troubling. Position taking is one of the means by which members pursue their electoral designs. And watching Senators on the presidential campaign trail trying to spin their votes sometimes on the same issue gives pause. They also ascribe more political authority to the solicitor general than may be warranted. It is common to [*204] examine the amicus curiae briefs that the SG files on the theory that there are fewer constraints and thus the SG can follow the president. But amicus briefs take a variety of forms and most are not used simply to push the president’s agenda cases.
The authors also have results that proponents of the attitudinal model could claim are consistent with their findings. What Bailey and Maltzman argue is a cut point or the influence of legal doctrine, the attitudinalists could counterclaim is a threshold or a factual situation that separates a liberal vote from a conservative one. As noted, the authors examine First Amendment cases and a proponent of the attitudinal model could claim that the support (or lack thereof) the First Amendment could be based on policy preferences rather than legal factors. The authors are careful to note that the line between law and politics is blurry, if it exists at all. They contend that legal values are not independent of politics. Conservatives will be more sympathetic to precedent when it supports their policy preferences. That has a certain attitudinal hue to it.
But I want to underline that is one of the most important studies in the field in the last decade. Neither Bailey nor Maltzman is a trained public law scholar, which makes it so infuriating that they have written such a path breaking study. The book should be mandatory for public law scholars and graduate students and highly recommended, as the authors suggest, for Chief Justice John Roberts.
Epstein, Lee, Valerie Hoekstra, Jeffrey Segal, and Harold Spaeth. 1998. “Do Political Preferences Change? A Longitudinal Study of U.S. Supreme Court Justices.” Journal of Politics 60: 801-818.Schubert, Glendon. 1965. The Judicial Mind. Evanston, IL: Northwestern University Press.
Segal, Jeffrey and Harold Spaeth. 2002. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press.
Copyright 2012 by the Author, Richard L. Pacelle, Jr.