Justices Create Law According to their Ideological Preferences


Under Construction. This section and chapter will expand greatly.

Will also contain proper structuring and contents

The Judicial Mind [Schubert and Court, 1965] and The Judicial Mind Revisited [Schubert, 1974] provided the first working attitudinal model of Supreme Court decision making. He describes Judicial decision making as dependent upon ideological preferences and the context of facts of the case.


Consider the following cases:

  1. The police search an apartment in which they have probable cause to enter. While investigating the unit an officer eyes expensive stereo equipment. He believes this to be stolen property, therefore he moves the equipment in order to obtain the serial numbers. He later calls this information in, acquires a warrant, and seizes the equipment. [Scalia and of the United States, 1987]

  2. A man who had been observed by police officers to be transporting cocaine in his vehicle. Two months after being observed, the man is arrested at his place of work for an unrelated charge. The officers aware that the car had been used to carry contraband, seized it, claiming that they had probable cause to do so without a warrant. [Thomas and of the United States, 1989]

If we were to score these circumstance across ideological space we would find that the facts of the second case would lay to the left of the first. For instance, the less prior justification and the more intrusive the search (home vs. car) the further to the right in ideological space. The points along the line where t1. Political Science can ultimately become a science capable of prediction and explanation. 2. Political science should concern itself primarily, if not exclusively, with phenomena which can actually be observed. 3. Data should be quantified and “findings” based upon quantifiable data. 4. Research should be theory oriented and theory directedhe cases lie we call j-points.

Next, we score the ideological values of the Individual justices. For the sake of explaining the model, I choose the hypothetical justices A, B, and C. A is so liberal that he does not believe any evidence should be seized without a warrant. B, lies in the middle. His ideological preferences would allow for the seizure of evidence without warrant only when officers have probable cause and are not searching one’s home. Justice C lies to the Far right. She will support any seizure of evidence so long as the officers do not physically harm the suspect. These points are to be referred to as i-points (ideal points).

Schubert posits that a justice will accept any set of action to the left of his ideal and then disregard all to the right. Or in other words, a justice will only accept a set of actions bounded by a maximum level of intrusiveness. Action that falls beyond that set are morally unacceptable. Therefore, a justice if true to his own ideological preferences will not vote to affirm an action to the right of his own ideological values.

Judicial Attitudes and the facts of the case

Harold Spaeth

Harold Spaeth expands upon the influence of attitudes on judical behavior. He defines his core idea, the attitude, as a relatively enduring “interrelated set of beliefs about an object or situation. For social action to occur, at least two interacting attitudes, one concerning the attitude object and the other concerning the attitude situation must occur ([Spaeth, 1972], 65).” Objects are considered the “direct and indirect parties to the suit; situations are the dominant legal issue in the case ([Segal and Spaeth, 2002], 91).”

Spaeth and Peterson 1971

In practice, Spaeth and Peterson organize the Court’s decisions into individual sets of cases on basis of the “attitude situation.” “Attitude objects” then interact with “attitude situations.” The theory assumes that sets of these cases that form around similar objects and situations will correlate with one another to form issue areas (e.g., criminal procedure, First Amendment freedoms, judicial power, federalism) in which an interrelated set of attitudes – that is, a value – will explain the justices’ behavior (eg. Freedom, equality, national supremacy, libertarianism) [Spaeth and Peterson, 1971]


Rohde and Spaeth 1976

Building onto this psychological model, David Rhode and Harold Spaethe provide the explanation the structural systems which permits Justices to engage in attitudinal behavior. Influenced by the application of rational choice theory to politics they bounded attitudinal behavior to goals, rules, and situations.

Goals, to Rohde and Spaeth mean that “actors in political situations are outcome oriented; when they choose among a number of alternatives, they pick the alternative that they perceive will yield them the greatest net benefit in terms of their goals [Rohde and Spaeth, 1976]

The primary goals of Supreme Court justices in the decision-making process are policy goals. Each member of the Court has preferences concerning the policy questions faced by the Court, and when the justices make decisions they want the outcomes to approximate as nearly as possible those policy preferences ([Rohde and Spaeth, 1976], 72).”

In order for the justices to acquire their goals they must play by the rules of the game, “the various formal and informal rules and norms within the framework of which decisions are made. As such, they specify which types of actions are permissible and which are impermissible, the circumstances and conditions under which choice may be exercised, and the manner of choosing ([Rohde and Spaeth, 1976], 71).”