The Roberts Court, Economic Issues, and the Attitudinal Model
Theoretically, we should expect that Roberts and Alito will vote in a probusiness direction in a manner similar to Rehnquist and O’Connor, because all four have been identified as having conservative policy preferences. The fact that Roberts and Alito vote in the conservative direction in business cases, and that we should expect the Roberts Court to be more likely to hand down decisions in favor of— as opposed to against—business or economic interests is not breaking news. The Rehnquist Court evolved into a fairly reliable conservative Court on a range of issues. Probusiness conservatives Rehnquist and O’Connor were replaced by Roberts and Alito, whose conservative bona fides were most certainly part of the criteria upon which President Bush appointed them. And when President Obama appointed Sotomayor and Kagan to replace Souter and Stevens, it would have been anticipated that they would be somewhere in the center-left portion of the ideological spectrum.
Among political scientists, the dominant theory of Supreme Court decision making has long been the attitudinal model. The attitudinal model is by now familiar to, and well understood by, legal academics as well as political scientists. As the leading proponents of the attitudinal model, Jeffrey Segal and Harold
Spaeth, explain, “This Model holds that the Supreme Court decides disputes in light of the facts of the case vis-a-vis the ideological attitudes and values of the justices. Simply put, Rehnquist vote[d] the way he [did] because he [was] extremely conservative; Marshall voted the way he did because he was extremely liberal.”
The theoretical framework underlying the attitudinal model has its roots in the legal realism movement, but also it is formulated from insights derived from research in political science, psychology, and economics. Segal and Spaeth provide a detailed theoretical explication of their attitudinal model, as well as rigorous empirical tests of the model. In short, Segal and Spaeth argue that the justices are free to vote their true policy preferences—or “attitudes”—because they (l) have life tenure and a guaranteed compensation and are therefore not beholden to the other branches of government or public opinion; (2) are at the top of their profession and thus not seeking promotion; and (3) preside in the Court of last resort that cannot be overturned by a higher court, and is unlikely to be overridden through other means, such as constitutional amendments. Therefore, legal rules and canons of interpretation such as plain meaning and stare decisis do not limit discretion in Supreme Court decision making. Judicial attitudes are usually conceptualized as falling along a single conservative-liberal dimension in which, among other things, conservative judges are more likely to favor the government in cases involving civil liberties and the individual or businesses in cases involving economic regulations; in contrast, liberal justices are more likely to vote in favor of the individuals and minorities in civil liberties and civil rights cases and in favor of government regulation in cases involving economic regulations.
Although there are a number of limitations to the theory, the empirical analysis of Segal and Spaeth, among many others, does indeed support the argument that, in general, the voting behavior of justices can often times be explained by policy preferences, or something like ideology. Indeed, commentary about the Roberts Court often focuses on the ideological direction of the
Court’s decisions, and the Roberts Court has even been dubbed the most conservative Supreme Court since the New Deal Court. It is well documented that the appointments of Richard Nixon began a shift to the right on the Court, and the appointments made by Ronald Reagan and George H. W. Bush solidified a conservative majority on the Court. The Rehnquist Court was on balance a conservative court. From the 2005 Term of the Court until the 2009 Term, the Roberts Court was composed of the same justices who served on the Rehnquist Court since 1994, less Sandra Day O’Connor and William Rehnquist, who were replaced by John Roberts and Samuel Alito. O’Connor was considered a moderate-conservative ideologically and Rehnquist one of the most conservative members of the Court. Commentary on Roberts suggested that he is generally conservative, although his jurisprudential approach also seems to be marked by pragmatism and “minimalism,” suggesting some moderation in judicial attitudes. However, when Alito was nominated, he was typically described as “undeniably a conservative whose presence on the Supreme Court is likely to produce more conservative results than we would like to see” and “a thoughtful conservative, not a raging ideologue.” Indeed, one commonly used measurement of the ideology of the justices among political scientists, the Segal-Cover scores, confirms those commentaries. The Segal-Cover Ideology Scores are based on a scale with a range from zero (most conservative) to one (most liberal). O’Connor’s score is a .415; Rehnquist’s score is .045; Roberts’s score is .120; and Alito’s score is .100. These scores indicate that we would expect that Rehnquist would be the most conservative justice, followed by Alito, Roberts, and lastly O’Connor, who is considered moderately conservative. In short, we should expect the Roberts Court to act similarly to the Rehnquist Court, meaning that it should favor business interests over government regulation and over labor interests at least as often as the Rehnquist Court, and perhaps slightly more so given the departure of the relatively moderate O’Connor.
-  Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the AmTUDiNALModel Revisited 86 (2002).
-  Id. at 87-97; see also Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and theAttiTUDiNAL Model (1993).
-  Segal & Spaeth, supra note 21, at 92-96.
-  The so-called strategic model of Supreme Court decision making is essentially a modified version of the attitudinal model rooted in rational choice theory. In essence, the strategic model suggests that justices sometimes modify their votes for strategic reasons but still try to maximize theirpolicy preferences or votes when they cannot otherwise achieve their ideal outcome. See generallyLee Epstein & Jack Knight, The Choices Justices Make (1998).
-  See generally Chemerinsky, supra note 20.
-  See Donald Grier Stephenson, Jr., Campaigns and the Court: The U.S. SupremeCourt in Presidential Elections (1999); Thomas Keck, The Most Activist SupremeCourt in History: The Road to Modern Judicial Conservatism (2004).
-  See Cass R. Sunstein, The Minimalist, L.A. Times, May 25, 2006, at B11; Ronald Dworkin, JudgeRoberts on Trial, N.Y. Rev. of Books, October 20, 2005; Jeffrey Rosen, Roberts's Rules, Atlantic,January-February 2007, at 104.
-  Editorial, Confirm Samuel Alito, Wash. Post, January 15, 2006, at B06.
-  For a discussion of how the Segal-Cover Scores are operationalized and measured, seeJeffrey A. Segal & Albert D. Cover, Ideological Values and the Votes of Supreme Court Justices, 83 Am.Pol. Sci. Rev. 557, 559-61 (1989); for updated scores, see Jeffrey Segal, Perceived Qualificationsand Ideology of Supreme Court Nominees, 1937-2005, available at http://www.stonybrook.edu/