Vol. 3, No. 9 (September, 1993) pp. 98-100

(Editor's note: The following is a comment on the recently published review by Bradley C. Canon of Segal and Spaeth, THE SUPREME COURT AND THE ATTITUDINAL MODEL. The REVIEW welcomes such comments and invites submissions to the editor.)

A Reply to Professor Canon's Review of THE SUPREME COURT AND THE ATTITUDINAL MODEL by Jeffrey A. Segal and Harold J. Spaeth (New York: Cambridge University Press, 1993).

Timothy M. Hagle (University of Iowa)

Professor Canon provides an interesting review of Segal and Spaeth's THE SUPREME COURT AND THE ATTITUDINAL MODEL. I did not attend the panel in which the book was critiqued, but I trust Professor Canon's review captures the gist of the major exchanges.

I must begin by quibbling with the notion that the scalogram is the best depiction of the attitudinal model. It is certainly true that this is where the attitudinal model was first tested. More recently, however, several studies (including many by Segal and Spaeth) have used more sophisticated methods, most notably the use of probit to estimate multivariate models. Such models do not suffer from the circularity that challenges the validity of scalograms. As such, they offer even more compelling support for the attitudinal model as an explanation of judicial voting behavior.

Next Professor Canon criticizes the authors for belaboring the obvious, namely, that "a great majority of federal judges fully realize they often make policy in deciding cases." This misses the point. Broadly defined, judges make policy every time they make a decision that has even the smallest element of discretion. Even with a much narrower view of what constitutes policy, however, the point is not whether judges realize (or admit) they are making policy. Rather, it is that they do so based on their attitudes.

Scalia's quotes are to the point. I would agree, however, that were these views only Scalia's, it would not be evidence of "widespread naivete" on the part of judges. Though Segal and Spaeth may not cite recent scholarship on this point, one need only to have tuned into any of the recent confirmation hearings for nominees to the Supreme Court to have seen ample evidence that judges tow the party line. Imagine the reaction had Ginsburg, Thomas, Souter, Kennedy, or any other nominee responded to a question thus: "Senator, I'm a liberal/conservative. As such, I'm going to vote for this party in this type of case and the other party in another type of case." Senators opposing the nominee would have had a field day and supporters would have found it difficult to confirm a nominee with such "unjudicial" attitudes.

While it's probably true that nominees are more likely to couch their responses in legal terms to avoid probing questions by Senators, this does not necessarily mean they are being dishonest in their responses. Like Scalia, many judges undoubt edly believe they are using objective legal criteria. If the phrase "objective legal criteria" is not an oxymoron, it must surely cause a raised eyebrow or knowing wink. As Segal and Spaeth point out (pp. 17-19), if such objective criteria exist, why do so many judges disagree with each other, either from one court to another or within the same court?

Judges in both the majority and dissent may claim THEY are the ones applying objective criteria. Both sides could be quite sincere in this belief. The difference lies in differing attitudes that shape how the judges view the legal landscape. To use a case mentioned by Professor Canon, what accounts for the change from PLESSY V. FERGUSON to BROWN V. BOARD OF EDUCATION? The Fourteenth Amendment had not changed in the intervening years. Was some new legal principle uncovered by the BROWN Court? Would the justices who decided PLESSY have accepted this new principle had they been present in 1954? I think not. The difference in result in these two cases was one of underlying attitude not legal principle.

Professor Canon argues that the legal model is nothing more than a straw man and that role theory should be the "enemy" of the attitudinal model. First, if the legal model is such is straw man, why does it continue to attract such attention. In addition, given comments of judges that they base their decisions on legal principles, we must continue to treat the legal model as an alternative to the attitudinal model. Second, role theory cannot be thought of as competing with attitude theory. I can think of only one (anecdotal) example where role theory might have explained a justice's vote. This example is given in Woodward and Armstrong's THE BRETHREN. Apparently, as a new justice Powell explained his vote in a case as a desire to follow the leadership of the Court (i.e., Burger). Stewart, so the story goes, then explained to Powell that the leadership on the Court belonged to the justices in the middle. To the extent Powell viewed his new role as subordi nate to the Chief Justice, it may have influenced his vote in that case. My guess, however, is that Powell only followed Burger's assumed leadership because he did not otherwise feel strongly about the outcome.

The final major criticism of the attitudinal model is that it does not account for differences in policy, as evidenced by court opinions. This isn't a particularly strong criticism, however, since no claim is made that the attitudinal model explains the content of opinions. To say, as Segal and Spaeth do, that opinions are merely verbal rationalizations of the justices attitudes does not imply opinions have no value at all. Referring to opinions as "verbal rationalizations" seems to invoke negative connotations for many people. If we consider opinions to be articulations of the justices' voting rationale, and thus their attitudes, we can see their value as a means of determining whether a justice is articulating consistent justifica tions for a series of votes.

In addition, it may be in the study of opinions where role theory can make its biggest impact. Given a particular result -- reached via a justice's underlying attitudes -- how broadly should the opinion be crafted? Depending, for example, on the author's view of role of the judiciary the opinion may be worded broadly to demonstrate the importance of the judiciary as the protector against the tyranny of the majority or it might be worded narrowly in deference to the states or other branches of government.

While Segal and Spaeth may prefer the power of quantitative analysis, this does not mean nonquantitative methods should not be taken seriously. The problem is that no other theory, quantitative or not, has, with respect to judicial voting behavior, the explanatory power of the attitudinal model. I agree that we must not stop our analysis with mere correlations (and most adherents of the attitudinal model do not), and it is here that nonquantitative methods may be quite useful. Nevertheless, as political SCIENTISTS, we are obligated to approach our subject with rigorous analytical techniques. This means that as a THEORY the attitudinal model may continue to be challenged. It also means, however, that it does little good to criticize the attitudinal model for what it does not do until a theory with greater explanatory power is proposed.