Perhaps a seminal work in precipitating research into those ―other internal and external influences‖ was J. Woodford Howard‘s 1968 article ―On the Fluidity of Judicial Choice.‖
―Fluidity,‖ he implied, incorporated the fact that judges can, and do, change their votes at various points during the decision-making process—from certiorari votes to initial conference votes to final votes (Maveety and Maltese, 2004, 232). For Howard, such changes meant that justices could not be described as actors who merely voted based on their attitudes, for if the process were that simplistic, vote shifting would not occur. The underlying implication, then, was that the flexible nature of voting behavior implied that it was driven by factors besides attitudes (because attitudes should not be subject to such capricious vicissitudes).
Hagle and Spaeth answer this criticism of the attitudinal model in a 1991 article (Hagle and Spaeth, 1991, 126), and Segal and Spaeth do the same in their 2002 book. In sum, both pairs suggest that fluctuation between conference votes and final votes is not extremely prevalent, with the latter offering empirical evidence from a roughly 40-year sample of cases (Segal and Spaeth,
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2004, 285).18 Even so, some vacillation is apparent in Segal and Spaeth‘s discussion, and their response notwithstanding, scholars have used ―fluidity‖ as an impetus to generate other theories about the nature of Supreme Court decision-making—including ones that examine the strategic dynamics of group interaction (see Maveety and Maltese, 2004, 230).
Rational choice theory is one of these approaches. Its principles have sprung from economic theories which suggest that actors are ―able to order their alternative goals‖ (Segal and Spaeth, 2002, 97), that they will then make choices to achieve those goals, and that those choices will depend upon the actions of others (Epstein and Knight, 2004, 200). The rational choice dimension of judicial analysis is succinctly summarized in Lawrence Baum‘s article ―What Judges Want,‖ where he notes that ―judges hold a multiplicity of goals that are potentially relevant to their behavior‖ (Baum, 1994, 760). These goals, as Gibson states, ―can lead to bargaining and interaction [among the justices]‖ (Gibson, 1983, 30).19 Further, in assessing the rational choice work of Danelski, Walker crystallizes the basic tenets of this concept by noting that ―individual [justices] cannot achieve their… policy goals by acting alone‖ (Walker, 2004, 252). Therefore, the collective statements of these rational choice theorists seem to indicate that justices must find ways to act strategically in order to have their preferred outcomes become manifest in society at large.
As a result, it is important to consider Wrightsman‘s assertion that ―central to the rational choice model is the phenomenon of ‗strategic voting,‘‖ a phenomenon which can be defined as
18 They provide their own statistical assessment of the Burger Court (1969-1985), and then rely on the work of Saul Brenner for analysis of earlier terms; the two works which are highlighted are Brenner‘s ―Fluidity on the Supreme Court, 1956-1967‖ (1982) and his later article, ―Ideological Voting on the Vinson Court: A Comparison of the Original Vote on the Merits with the Final Votes‖ (1989).
19 Along these lines, Ulmer was one of the first to incorporate the fact that ―individuals clearly behaved differently in group settings than on their own‖ as a relevant factor in the analysis of judicial decision-making (Bradley, 2004, 105).
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voting which is not necessarily motivated by policy preferences, but rather, is ―congruent with the achievement of long-term goals,‖ such as seeing a judicial decree implemented ―in a fashion that comes closest to a justice‘s desired result‖ (Wrightsman, 2006, 132). In essence, the differences between this idea and those espoused by the attitudinal model are significant, yet not absolute—in the sense that rational choice theories may be compatible with the attitudinal model in certain situations. For example, while conceding that justices at the level of the Supreme Court are at least ―partially motivated‖ by a priori attitudes (as the attitudinal model would posit), Wrightsman adds that ―votes are behavior, and any complex behavior has many causes, many of them extending beyond attitudes, values, and ideology‖ (Wrightsman, 2006, 131).
Hammond et al. even state that the rational choice model concedes the basic attitudinalist tenet that ―justices are usually described as having preexisting preferences over particular legal policies;‖ however, they add that a justice goes about ―pursuing his or her most preferred policy by making particular kinds of choices‖ (Hammond et al., 2005, 11). The implication here is that attitudes do drive behavior—but in more complicated ways than the attitudinal model intimates.
In The Puzzle of Judicial Behavior, Lawrence Baum adds that the attitudinal model is limited in its depiction of justices as ―single-minded,‖ an emphasis which he criticizes for its failure to take into account a justice ―deviating from those preferences for strategic reasons‖ (Baum, 1997, 25; also in Wrightsman, 2006, 134). Herein lies a key precept of the rational choice model of judicial decision-making: sometimes a justice may vote in a manner inconsistent with his or her attitudes (or policy preferences) in the hope of achieving some broader objective (often related to opinion language or policy implementation).
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In terms of crystallizing and empirically testing this idea, the seminal modern texts in the domain of rational choice theory and judicial behavior are Lee Epstein and Jack Knight‘s The Choices Justices Make (1998) and Forrest Maltzman, James Spriggs, and Paul Wahlbeck‘s Crafting Law on the Supreme Court (2000). These books, and articles spawned from them, have illustrated a number of diverse factors that may influence Supreme Court decision-making. For example, Maltzman et al. note that, ―Supreme Court decisions are crafted in a collaborative environment among the justices, and thus justices act strategically to get opinions that… closely mirror their policy expectations‖ (Maltzman et al., 2000, 93). The words ―closely mirror,‖ of course, seem to indicate that justices will not always vote their exact preferences.
By examining such strategic behavior, scholars have found that, under certain conditions, a justice may ―pass‖ during a conference vote to see how others will vote (Johnson, Spriggs, and Wahlbeck, 2005, 349)—perhaps to gain relevant information needed for making a rational choice regarding policy objectives.20 Other scholars have also demonstrated that judges will use responses to circulating opinion drafts, coupled with threats not to join a majority coalition, as a means to alter the language (and policy implications) of a written opinion (Spriggs, Maltzman, and Wahlbeck, 1999, 485). Some scholars have even assessed the matter of ―voting for damage control,‖ which involves subverting one‘s true preferences for the chance to join a majority and thereby influence the way an opinion is worded (Arrington and Brenner, 2004, 565).
An article from Bonneau et al. in the October 2007 American Journal of Political Science combined many such examples in a search to understand ―how and why the Court selects the
20 It is important to note that from a rational choice perspective—a justice‘s choices are dependent upon ―perfect and complete information‖ (Epstein and Knight, 2000, 650), particularly ―expectations about the choices of other actors‖
(Epstein and Knight, 2004, 200).
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content of its opinions‖ (Bonneau et al., 2007, 904). Bonneau et al. use a game theoretic model to show that it ―matters who writes the opinion‖ and that the ideology of an opinion involves a compromise between the ―author‘s ideal point and the ideal point of the median justice [in the winning coalition]‖ (Bonneau et al., 2007, 904). In addition, other rational choice research examines the use of ―strategic‖ certiorari votes by justices who simply want to prevent certain issues from reaching the Court in the first place—out of fear that an opinion contrary to their policy preferences may result (Silverstein and Ginsberg, 1987, 373). Again, policy preferences are not absent from the discussions offered herein, but they are modified through their interplay with other variables that are emphasized by the rational choice scholar.
Ultimately, a rational-choice theorist would stress the fact that ―the opinion sets policy‖ and would imply that a justice will attempt to exert an influence on, or to directly control, the opinion-writing process (Spriggs, Maltzman and Wahlbeck, 1999, 503). At this point, it is also important to mention that, in order to move beyond analysis of the final vote, rational choice scholars have been forced to use new ―tools‖ to help them examine the ―Court as a court‖
(Becker, 1963, 266). These include the ―use of justice‘s docket books and private papers‖ as well as the examination of draft opinions (Maveety and Maltese, 2004, 231). Alpheus Thomas Mason actually found value in the use of the ―dissenting opinion as an educational tool‖ (Davis, 2004, 320). Perhaps this is because, as Kritzer notes, ―What justices say in their opinions is more likely to be important in the long run than… who wins or loses the case‖ (Kritzer, 2004, 407).
Overall, rational choice models do not obviate the basic findings and principles of the attitudinal model; the former merely allow for the consideration of a more diverse set of goals
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than simply voting one‘s preferences. While this has allowed rational choice theory to spawn a variety of models for assessing the behavior of Supreme Court justices (including qualitative assessments), the use of the plural rational choice ―models‖ tells us that it has not offered a unified, parsimonious paradigm. Nevertheless, it has identified a number of factors other than attitudes that may be relevant for analyzing Supreme Court decision-making. It is up to future research to find a way to consolidate these findings.