THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED

Vol. 13 No. 4 (April 2003)

THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED, by Jeffrey A. Segal and Harold J. Spaeth. Cambridge: Cambridge University Press, 2002. 459 pp. $70 Cloth. $25 Paper. Cloth ISBN 0-521-78351-8. Paperback ISBN 0-521-78791-0.

Reviewed by Craig F. Emmert, Texas Tech University. Email: craig.emmert@ttu.edu .

THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED, by Jeffrey A. Segal and Harold J. Spaeth, is a worthy successor to THE SUPREME COURT AND THE ATTITUDINAL MODEL (1993). Segal and Spaeth, two of the leading political scientists studying the Supreme Court today, maintain that the justices' attitudes are paramount in explaining their behavior. By far the most interesting and important changes in the new book are the authors' responses to the challenges raised by the rational choice approach to Supreme Court decision making.

THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED includes chapters on models of judicial decision making, the history of the Supreme Court, staffing the Court, case selection, decisions on the merits, opinion assignment and opinion coalitions, and the Court and constitutional democracy, along with introductory and concluding chapters. The new book includes one chapter focusing on the legal model and a separate chapter on the attitudinal and rational choice decision making models. The authors similarly employ two chapters to explore the utility of, first, the legal model, and then, the attitudinal and rational choice approaches for explaining decisions on the merits. These are appropriate changes from the previous book—in which the legal and attitudinal models were treated together—given the new book's increased attention to the rational choice approach. Segal and Spaeth have omitted the chapter on the impact of judicial decisions because, as they put it, "Everyone interested in impact is going to read Rosenberg's [1991] book, regardless of what we might say" (xvii-xviii). More to the point, omitting the impact chapter helps to keep the focus where it belongs, on Supreme Court decision making.

The chapter on Supreme Court history has been completely updated. Segal and Spaeth examine important recent cases such as SHAW v. RENO, U.S. v. LOPEZ, and, of course, BUSH v. GORE. The authors have thoroughly revised the chapters on choosing justices, case selection, and the Court and democracy. In updating these chapters, the authors have drawn on both their own and others' research from the last decade. In the chapter on the selection of justices, for instance, the authors briefly examine the appointments and confirmations of Justices Ginsberg and Breyer. The chapter on choosing cases for review includes an original analysis of aggressive grants of certiorari. All of these chapters retain useful information from the previous book, but they also provide much that is new, interesting, and important.

The most interesting parts of the book include Segal and Spaeth's responses to the rational choice approach. They address separately the critiques of the attitudinal model by the internal rational choice camp that "focuses on the interactions among the justices" and the external camp that "focuses on the constraints imposed on the Court by other political actors" (100).

In responding to the external camp, Segal and Spaeth provide a convincing critique of the separation of powers model in which the preferences of other actors, especially Congress, override those of the Court majority (e.g., Eskridge 1991; Spiller and Gely 1992). First, these models rely on several assumptions that, according to Segal and Spaeth, are unrealistic. These assumptions include that the justices have perfect and complete information about the preferences of Congress and other actors, that issues are unidimensional (when they can be reframed or bundled), that passage of new legislation is costless, and several others (106-110). Moreover, the separation of powers models do not measure judicial preferences adequately (340-341). Most critically, according to the authors, the regime change, switching regressions used to test the separation of powers model cannot distinguish sincere (attitudinal) behavior from strategic behavior (330-340). This is so because the models only take into account the Court's ideological position relative to the positions of the House and Senate; they do not include a separate measure of the Court's preferences. Segal and Spaeth demonstrate through their own analysis that once the justices' preferences are taken into account, the Court's position relative to those of the legislative chambers has no impact in explaining the Court's decisions (343-349).

The response to the internal camp is provided in the chapter on opinion assignment and opinion coalitions. This chapter can be seen as a response to research by Epstein and Knight (1998), Maltzman, Spriggs, and Wahlbeck (2000), and others that focuses on the interactions among the justices. Interactions include opinion assignment, circulation of opinion drafts, bargaining among justices regarding opinion language, and so on. Segal and Spaeth examine a number of aspects regarding opinion assignment. Not surprisingly, they conclude that attitudes are important for explaining opinion assignment decisions, while other factors are less so. Generally, however, their findings are not really very different from those of Maltzman, Spriggs, and Wahlbeck (2000).

Segal and Spaeth do not directly examine variables such as circulation of draft opinions, memos among justices regarding the wording of opinions, and the like. Instead they focus on inter-agreement, i.e., the justices' joining with their colleagues' opinions. The authors concede that "coalition formation takes place in an inherently interactive environment" (404). They nevertheless maintain that "the sincere preferences of the justices go a long way toward explaining their decisions, while interactive factors such as influence do not ... '[i]nfluence' seems to be a function of like-mindedness, for example, the Brennans and Marshalls, the Frankfurters and Harlans, and the Scalias and the Thomases" (404). This is a compelling point. But rational choice scholars concede that attitudes are important; they focus more attention on the interactions among the justices. Segal and Spaeth, on the other hand, emphasize the impact of attitudes while downplaying the importance of interactive factors. It seems that this aspect of the attitudinal/rational choice debate is far from over.

In sum, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED is an excellent book. Almost anyone with an interest in Supreme Court decision making will find a lot to like within its pages. Serious scholars of judicial behavior should definitely find a space for this book on their personal library shelves.

REFERENCES:

Epstein, Lee, and Jack Knight. 1998. THE CHOICES JUSTICES MAKE. Washington, D.C.:

Congressional Quarterly Press.

Eskridge, William N., Jr. 1991. Reneging on History? Playing the Court/Congress/President

Civil Rights Game. 79 CALIFORNIA LAW REVIEW 613.

Maltzman, Forrest, James F. Spriggs, II, and Paul J. Wahlbeck. 2000. THE COLLEGIAL

GAME: CRAFTING LAW ON THE SUPREME COURT. New York: Cambridge University

Press.

Rosenberg, Gerald. 1991. THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL

CHANGE? Chicago: University of Chicago Press.

Segal, Jeffrey A., and Harold J. Spaeth. 1993. THE SUPREME COURT AND THE

ATTITUDINAL MODEL. New York: Cambridge University Press.

Spiller, Pablo T., and Rafael Gely. 1992. "Congressional Control or Judicial Independence? The

Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988," 23 RAND

JOURNAL OF ECONOMICS 463.

CASE REFERENCES:

BUSH v. GORE, 148 L. Ed. 2d 388 (2000).

SHAW v. RENO, 509 U.S. 630 (1993).

U.S. v. LOPEZ, 514 U.S. 549 (1995).

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