Problemática y situaciones generadas de la aplicación estricta del marco

In order to ascertain a clearer understanding of where future rational choice judicial research is heading, it may be useful to assess the evolution of this type of scholarship. In terms of general political science literature, classic rational choice texts are Anthony Downs‘ An Economic Theory of Democracy (1957) and William Riker‘s The Theory of Political Coalitions (1967) (Epstein and Knight, 2004, 205). While multiple definitions of rational choice theory may pervade the social sciences today, in short, it is an economic concept applied to the behavior of human beings. Specifically, rational choice theory attempts to explain the behavior of political actors through a model known as ―economic man‖ (Ostrom and Ostrom, 1971, 209).

Essentially, this theory operates on the following assumptions: individuals are self-interested;

they can rank all known alternatives available to them in a given situation; they can choose the best alternative for their interests (which means that they are utility-maximizers); and, their individual behavior will aggregate to collective action (Ostrom and Ostrom, 1971, 205) (with the last idea described elsewhere as ―methodological individualism‖ (Fredrickson and Smith, 2003, 187)).

According to Epstein and Knight, if these components of rational choice theory were made specific to the behavior of justices, they might read as follows: Supreme Court justices are policy

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oriented; they act strategically to further their own goals; they can have multiple goals (which is a clear break from the attitudinal model); and, their interactions are structured by institutions (Epstein and Knight, 2004, 200-204). Embedded in these statements are two possible ―frames‖

for rational behavior: the first is interaction with other justices sitting on the Court, and the second is interaction with actors in the other institutions that are responsible for implementing judicial decisions (e.g., the president or legislators). Ultimately, it seems as if the majority of rational choice scholarship has been concerned with the former, while the latter has formed the crux of New Institutionalist literature; the former will be discussed in this section, while the latter will be discussed in the subsequent section (Section 2.5).

Walter Murphy‘s 1964 book Elements of Judicial Strategy is widely regarded as a critical text in the genesis of rational choice literature as it applies to judicial behavior (Epstein and Knight, 2004, 205). However, without detracting from the importance of this work, it is imperative to note that at least one scholar has suggested that Charles Beard‘s An Economic Interpretation of the Constitution (1913), which ―portrayed both the Framers and subsequent judges as consciously using judicial review as a device to secure economic privileges for the propertied class,‖ was actually the first work to address the notion of strategic behavior on the part of justices (Clayton, 2004, 306). Beyond that, two judicial articles that preceded Murphy‘s text could be said to contain elements of rational choice theory. Specifically, a 1960 conference paper from David Danelski examined the role that the Chief Justice could play in influencing the vote choices of other justices, and a 1963 article from Tanenhaus et al., entitled ―The Supreme Court‘s Certiorari Jurisdiction: Cue Theory,‖ examined what factors lead justices to grant certiorari in the first place (see Carp, 2004, 148 for further discussion of these early works).

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Nevertheless, it was Murphy‘s 1964 text that crystallized the basic principles that would come to define rational choice theories of judicial decision-making. In simplistic terms, according to Murphy, ―Justices were political beings, they have public policy goals, they want to see certain policies established or affirmed, and they act to achieve these goals‖ (as quoted in Wrightsman, 2006, 135). Murphy backed these assertions with anecdotal evidence, but no substantive research or quantitative models. According to Hammond et al., the ―central purpose‖ of Murphy‘s book was merely to address the following question: ―How can a justice of the Supreme Court most efficiently utilize his resources, official and personal, to achieve a particular set of policy objectives?‖ (Hammond et al., 2005, 29, as derived from Murphy, 1964, 3-4). In approaching this query, Murphy used Court records and the justices‘ personal papers to evaluate the dynamics that molded vote choices from the certiorari vote through judicial conferences to the final culmination of a written opinion—essentially to highlight the fact that a variety of influences played a role in a justice‘s arrival at the ultimate destination: a final vote.

Even so, as proponents of the attitudinal model began to churn its quantitative research during the 1970s and 1980s, some have suggested that the ―strategic‖ accounts of Murphy, Howard and others were ―essentially set aside‖ (Wrightsman, 2006, 135; Clayton and Gillman, 1999, 282), perhaps because of the paucity of empirical evidence derived from them. However, there were isolated attempts to keep this line of inquiry alive. For example, two articles from David Rohde in 1972 offered quantitative approaches to studying rational choice theory. In ―Policy Goals and Opinion Coalitions on the Supreme Court,‖ Rohde, by drawing on Luce and Raiffa‘s Games and Decisions (a 1957 primer on game theory), used scaling techniques—the preferred tool of many early attitudinal scholars—to assess conditions that led to minimum winning coalitions (or 5-4

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decisions) (Hammond et al., 2005, 55). Further, in a subsequent 1972 article, ―Policy Goals, Strategic Choice and Majority Opinion Assignments in the U.S. Supreme Court,‖ Rohde used scaling techniques to analyze whether justices assigned opinions to those ideologically closest to themselves (Brenner, 2004, 270-283). Rohde was not entirely alone in examining these concerns during the 1970s, as Sidney Ulmer‘s 1979 article ―Researching the Supreme Court in a Democratic Pluralist Society‖ also emphasized the need for researchers to look beyond the final decision (Bradley, 2004, 111). Even so, a discernable ―drought‖ in judicially-based rational choice literature is evident during the ensuing twenty years following the publication of this piece.

Eventually, it was Lee Epstein and Jack Knight‘s 1998 book, The Choices Justices Make, which proved to be a landmark volume for resuscitating the application of rational choice theory to judicial behavior. This work focused on the fact that:

[Supreme Court justices] are not unsophisticated characters who make

choices solely on their own political preferences. Instead, justices are strategic actors who realize that their ability to achieve their goals is dependent upon a consideration of the preferences of others, of the choices they expect others to make, and of the institutional context in which they act. In other words, [their] choices can best be explained as strategic behavior, not solely as responses to either personal ideology or apolitical jurisprudence…. The law, as it is

generated by the Supreme Court, is a long-term product of short-term strategic decision-making (Epstein and Knight, 1998, xiii, also quoted in Wrightsman, 2006, 135).

Within this statement, Epstein and Knight delineate the key tenets of their rational choice purview: justices make choices to achieve certain goals; justices act strategically in that their choices depend upon what they expect other actors to do; these choices are constrained by the institutional setting in which they are made (Epstein and Knight, 1998, 10-11; Wrightsman, 2006, 136). Ultimately, Epstein and Knight delineate the scope of these choices when they

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imply that ―justices have to be strategically rational in all aspects of the Court‘s decision-making process [from the grant of certiorari to the assignment of opinions to coalition formation to the final vote] if they are going to pursue their most-preferred policies‖ (Hammond et al., 2005, 58).

In their 1998 book, Epstein and Knight are, for the most part, content to offer theories and analysis of individual case studies—but they do provide some quantitative work to back their assertions. This includes, for example, a table entitled ―Changes in Select Landmark Cases,‖

which cites justice preferences in three categories: ―First Draft,‖ ―Reaction to First Draft,‖ and

―Published Opinion.‖ This table is designed to highlight the fact that justices will shift their preferences at different stages of deliberation (Epstein and Knight, 1998, 100-105). Another example of Epstein and Knight‘s empirical work is a table which illustrates the probability of a particular justice being assigned a majority opinion, based on final vote count (Epstein and Knight, 1998, 129). Their sources for the information contained in these tables include analysis of the Court‘s public records and the voting records of individual justices (Wrightsman, 2006, 137), as well as assignment sheets, docket sheets, circulation records and, most notably, private papers donated by Justices William Douglas, Thurgood Marshall, Lewis Powell, and William Brennan (Maltzman et al., 2000, 26). It is important to note, though, that the few statistical examples which are offered in The Choices Justices Make are themselves specific to cases that occurred during the Burger Court, and thus have limited external validity.

However, in spite of their small quantity of empirical findings, Epstein and Knight‘s conceptual declarations are noteworthy for cementing the foundation of future empirical research in rational choice judicial literature. Further, it is important to remember that they were essentially reviving an inert theory in judicial politics, one that had been dormant for nearly

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twenty years. Perhaps this is why the opening declaration to their work suggests that, ―The primary purpose of our book is to develop a conception of judicial decision-making‖ (Epstein and Knight, 1998, xiv), a statement they later amend with the caveat that theirs is not ―a book…

about complete explanations‖ (Epstein and Knight, 1998, 18). Epstein and Knight also note that,

―This book marks a beginning, not the end‖ (Epstein and Knight, 1998, 184) and they express satisfaction in having demonstrated that, ―Strategic rationality is a plausible approach to study the range of judicial choices‖ (Epstein and Knight, 1998, 182).

In short, the most important idea that arises from this book is nestled in the following statement: ―Strategic decision-making is about interdependent choice; an individual‘s action is, in part, a function of her expectations about the actions of others‖ (Epstein and Knight, 1998, 12). Those ―others‖ could refer to both other members of the Court or to other actors in government (although, as mentioned earlier, rational choice accounts generally focus on the former, while New Institutionalist accounts focus on the latter). Ultimately, in either case, a

―strategic‖ justice must engage in ―forward thinking,‖ in the sense that he or she must ―pay some heed to the preferences of others and the actions they expect others to take‖ (Epstein and Knight, 1998, 79). That is the essence of Epstein and Knight‘s message in The Choices Justices Make.

In Crafting Law on the Supreme Court (2000), Maltzman, Spriggs and Wahlbeck expound upon the work of Epstein and Knight. To highlight what ―strategic behavior‖ in the context of judicial politics means to them, they open with a discussion of Pennsylvania v. Muniz (496 U.S.

582, 1990), in which the Court ruled that even though a drunk driving suspect had not been given his Miranda Rights prior to interrogation, prosecutors could still present, at trial, a videotape that showed him speaking incoherently during questioning. The Court held that this type of evidence

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was akin to physical evidence, such as blood at a crime scene, rather than a self-incriminatory statement that deserved protection under the Fifth Amendment. In effect, this was described as a

―routine booking question exception‖ to the Miranda Rights. The unexpected occurrence for many Court observers was that the opinion in this case was written by the liberal Justice Brennan, who had supported the government in only 28% of Miranda-based cases during his long tenure on the Court. He explained this decision by saying that, ―I made the strategic judgment to concede the existence of an exception, but to use my control over the opinion to define the exception as narrowly as possible.‖ He added that, ―If Sandra had gotten her hands on the issue, who knows what would have been left of Miranda (Maltzman et al., 2000, 3-4;

Wrightsman, 2006, 137).

Essentially, in this case, Brennan was acting in line with the following principle: Justices are likely to support a ―ruling that comes close to their preferences than to see their colleagues [or actors in other branches of government] take positions that move policy well away from their ideal [position]‖ (Wrightsman, 2006, 153-154, paraphrasing Epstein and Knight, 1998, 13). The underlying theory here (one that I will use in forming statistical models later in this dissertation) is that ―a justice must respond to constraints placed [upon] him or her‖ (Maltzman et al., 2000, 153).

Maltzman et al. address this idea by examining conference papers, private papers, and docket notes from the Burger Court (as Epstein and Knight did in The Choices Justices Make). Their descriptive analysis of this information leads them to assert findings like the following: ―Court opinions matter,‖ largely because they create ―expectations about future Court behavior and sanctions for noncompliance,‖ and thereby ―have implications for the behavior of private parties

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and decision makers in all three branches of government‖ (Maltzman et al., 2000, 5). This focus on the opinion is an important component of rational choice literature in the field of judicial politics, a fact which Rohde and Spaeth denoted two decades earlier when they declared that,

―The Opinion of the Court is the core of the policy making power of the Supreme Court‖ (Rohde and Spaeth, 1976, 172). In Crafting Law on the Supreme Court, the authors extend the concern for written opinions by attempting to offer explanations that are applicable to all four stages of the decision-making process on the Supreme Court: opinion assignment, strategic responses to the first draft, ―accommodation‖ of other justices‘ views, and ―coalition formation‖ among justices (Maltzman et al., 2000, vii).

Unfortunately, in terms of deriving findings with any significant level of external validity, their work is limited in that it addresses singular cases, and beyond that, it is difficult for any scholar examining these stages of decision-making to generate variables that accurately quantify actions like ―accommodation‖ or ―bargaining.‖ Those are not easily-coded variables like ―Chief Justice‖ or ―Democratic appointee‖ (Maltzman et al., 2000, 154)—and as a result, it is difficult to make findings from Maltzman et al.‘s ―four-stage decision process‖ applicable to a wider range of situations.

Nevertheless, Maltzman et al. are able to find statistical evidence that a Chief Justice is more likely to assign a case opinion to a distant ideological counterpart as the size of the initial majority coalition in a conference vote gets smaller (Maltzman et al., 2000, 36). They also note that the smaller the concurrence at conference, the more likely it is that a justice will circulate a

―wait statement,‖ dissent, or concurrence (Maltzman et al., 2000, 73). In addition, they determine that opinion writers working on behalf of small coalitions will be more likely to

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accommodate suggestions from colleagues (Maltzman et al., 2000, 101). Finally, they demonstrate that a justice will be more willing to join the majority if he or she is ideologically closer to the opinion author—with controls for political salience, caseload, proximity to the end of the court‘s term, and years of tenure included in this study (Maltzman et al., 2000, 133).

The authors describe these findings as noteworthy because their information paints a portrait of justices who are ―not deterministically responding to psychological or sociological forces‖

(Maltzman et al., 2000, 13); in other words, justices are not just voting their attitudes, nor are they simply following precedent. However, the authors do concede that justices ultimately

―prefer opinions that reflect their policy preferences‖ (Maltzman et al., 2000, 17). In fact, in attempting to relate their ideas to those of the attitudinal model, Maltzman et al. suggest that

―preferences influence the choices justices make as the Court crafts its opinions,‖ but add that

―preferences are not omnipotent‖ (Maltzman et al., 2000, 151). On the whole, then, they do not negate the underlying principles of the attitudinal model—and they even note that Spaeth himself has admitted that non-attitudinal variables may play a role in opinion assignment and opinion writing (Maltzman et al., 2000, 151). Maltzman et al. would add that, ―A strategic justice is one who pursues his or her policy preferences within the constraints determined by the interdependent nature of decision-making on the bench‖ (Maltzman et al., 2000, 18). Therefore, the rational choice approach can be seen as merely delineating parameters within which the attitudes of a policy-seeking justice are limited, but not vitiated. At the same time, rational choice accounts travel beyond the boundaries of the attitudinal model in the sense that the former take into account the shifting of preferences that may occur during the process of judicial decision-making (Maltzman et al., 1999, 59).

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