appellate courts deciding cases

Appellate CourtsAppellate Courts

Deciding CasesDeciding Cases

Overview of Appellate Court Overview of Appellate Court Decision MakingDecision Making

First-level Appellate CourtsFirst-level Appellate Courts Easy casesEasy cases

Second-level Appellate CourtsSecond-level Appellate Courts

Factors Affecting Appellate Court Factors Affecting Appellate Court Decision MakingDecision Making

The Legal ModelThe Legal Model The Attitudinal ModelThe Attitudinal Model Rational Choice ModelsRational Choice Models

Separation of Powers ModelSeparation of Powers Model Institutional ModelInstitutional Model

Role TheoryRole Theory

The Legal ModelThe Legal Model

Uses text, intent, precedent, or stare Uses text, intent, precedent, or stare decisis as an explanation of court decision decisis as an explanation of court decision makingmaking

Values: reliability, efficiency, equalityValues: reliability, efficiency, equality Methods:Methods:

OriginalismOriginalism TextualismTextualism Intent of FramersIntent of Framers

The Attitudinal ModelThe Attitudinal Model Judges make decisions based in part on their personal Judges make decisions based in part on their personal

policy preferences rather than solely according to the policy preferences rather than solely according to the law.law.

Development of the Attitudinal Model in Political ScienceDevelopment of the Attitudinal Model in Political Science Legal RealistsLegal Realists Behavioral RevolutionBehavioral Revolution

Political science can ultimately become a science capable of Political science can ultimately become a science capable of prediction and explanationprediction and explanation

Political science should concern itself primarily, if not exclusively, Political science should concern itself primarily, if not exclusively, with phenomena which can actually be observedwith phenomena which can actually be observed

Data should be quantified and “findings” based on quantifiable dataData should be quantified and “findings” based on quantifiable data Research should be theory oriented and theory directedResearch should be theory oriented and theory directed

Herman Pritchett (1948)Herman Pritchett (1948) Glendon SchubertGlendon Schubert

The Attitudinal Model (cont’d)The Attitudinal Model (cont’d)Justices

1 2 3 4

Case 1 + + + +

Case 2 + + + -

Case 3 + + - -

Case 4 + - - -

Attitudinal Model (cont’d)Attitudinal Model (cont’d)

Liberal-------------------------------------------------------------------------Conservative

J1 J2 J3 J4

Attitudinal Model (cont’d)Attitudinal Model (cont’d)Percentages of Liberal Votes Cast by Justices, 1994 – 2004

Terms

Justice Liberal Votes

StevensGinsburgSouterBreyerO’ConnorKennedyRehnquistScaliaThomas

67.161.961.757.942.341.933.930.928.7

Source: U.S. Supreme Court Database, compiled by Harold Spaeth, Michigan State University at www.as.uky.edu/polsci/ulmerproject/sctdata.htm

Note: Cases are included if they were decided on the merits with full opinions and if votes could be classified as liberal or conservative. Criteria for classifying votes are those used in the database.

http://www.as.uky.edu/polsci/ulmerproject/sctdata.htm

Attitudinal ModelAttitudinal Model Harold Spaeth (1976)Harold Spaeth (1976)

Psychological influencePsychological influence Attitude - “An enduring interrelated set of beliefs about an object or situation. For Attitude - “An enduring interrelated set of beliefs about an object or situation. For

social action to occur, at least two interacting attitudes, one concerning the attitude social action to occur, at least two interacting attitudes, one concerning the attitude object and the other concerning the situation must occur.”object and the other concerning the situation must occur.”

Rational Choice TheoryRational Choice Theory Segal and Cover (1989)Segal and Cover (1989) Martin and Quinn (2002)Martin and Quinn (2002)

Markov Chain Monte CarloMarkov Chain Monte Carlo Epstein, Martin, Segal, and Westerland (2007)Epstein, Martin, Segal, and Westerland (2007)

Judicial Common SpaceJudicial Common Space

The Attitudinal ModelThe Attitudinal Model

Marbury v. Madison Marbury v. Madison (1803)(1803) Vote: 6 – 0Vote: 6 – 0

Ex Parte McCardle Ex Parte McCardle (1869)(1869) Vote: 8 – 0Vote: 8 – 0

Powell v. Alabama Powell v. Alabama (1932)(1932) Vote: 7 – 2 Vote: 7 – 2

The Attitudinal ModelThe Attitudinal Model

Nixon v. United States Nixon v. United States (1993)(1993) Vote: 9 – 0 Vote: 9 – 0

Bush v. Gore (2000)Bush v. Gore (2000) Vote: 5 – 4 Vote: 5 – 4

Republican Party of Republican Party of Minnesota v. White Minnesota v. White (2002)(2002) Vote: 5 – 4 Vote: 5 – 4

Caperton v. Massey Caperton v. Massey Coal CompanyCoal Company Vote: 5 – 4 Vote: 5 – 4

Attitudinal ModelAttitudinal Model Why is the Attitudinal Model Particularly Applicable to the United Why is the Attitudinal Model Particularly Applicable to the United

States Supreme Court?States Supreme Court? The Supreme Court controls its docketThe Supreme Court controls its docket No electoral accountabilityNo electoral accountability Immune from political accountabilityImmune from political accountability

No justice ever removed from officeNo justice ever removed from office Only 5 Constitutional Amendments have ever overturned Supreme Court Only 5 Constitutional Amendments have ever overturned Supreme Court

Decisions (11Decisions (11 thth, 14, 14 thth, 16, 16 thth, 19, 19 thth, 26, 26 thth)) No ambition for higher officeNo ambition for higher office Supreme Court is the court of last resortSupreme Court is the court of last resort

Why are ideology and attitudes not as prevalent on other courts?Why are ideology and attitudes not as prevalent on other courts?

Separation of Powers ModelSeparation of Powers Model Courts make decisions with a concern for other actorsCourts make decisions with a concern for other actors

Other CourtsOther Courts LawyersLawyers Interest GroupsInterest Groups PresidentPresident CongressCongress Public OpinionPublic Opinion

Why?Why? Other branches of government can have a potential impact on what courts doOther branches of government can have a potential impact on what courts do

Determine court budgets/salariesDetermine court budgets/salaries Overturn (on statutory matters) or limit court decisionsOverturn (on statutory matters) or limit court decisions Pass legislation with regard to judges’ working conditionsPass legislation with regard to judges’ working conditions Promoting judgesPromoting judges

The public may have a potential impact over courtsThe public may have a potential impact over courts Is the judge elected?Is the judge elected?

Result: judges modify their preferred preferences in light of external factors.Result: judges modify their preferred preferences in light of external factors.

Separation of Powers (cont’d)Separation of Powers (cont’d)

Liberal Conservative

Law Status Quo

PresidentHouseSenate Supreme Court



Law Status Quo

President(.525)

House(-.107)

Senate(-.1285)

Supreme Court(.181)

Employment Division v. Smith (1990)



Law Status Quo

President(-.441)

House(-.112)

Senate(-.125)

Supreme Court(.101)

Religious Freedom and Restoration Act (1993)

Law Status Quo



Law Status Quo

President(-.441)

House(.122)

Senate(.173)

Supreme Court(.096)

City of Boerne v. Flores (1997)

Law Status Quo

Institutional PerspectiveInstitutional Perspective

Institutions influence the political strategies Institutions influence the political strategies adopted by individuals, firms, groups, and adopted by individuals, firms, groups, and governments, and thereby affect political governments, and thereby affect political behavior and policy outcomes.behavior and policy outcomes.

Strategic InteractionStrategic Interaction Two goals:Two goals:

Achieve majorityAchieve majority Achieve desired outcomeAchieve desired outcome

Example: Norm of ConsensusExample: Norm of Consensus Example: Institutional Differences between CourtsExample: Institutional Differences between Courts Example: Role of Chief JusticeExample: Role of Chief Justice

Role TheoryRole Theory

Gibson (1978)Gibson (1978) Justices view about what constitutes Justices view about what constitutes

appropriate behavior for the court and its appropriate behavior for the court and its membersmembers

Views regarding unanimous decisionsViews regarding unanimous decisions Views on lobbying colleaguesViews on lobbying colleagues Views on asking questions during oral argumentsViews on asking questions during oral arguments Views on the role of precedent and attitudesViews on the role of precedent and attitudes

The Supreme Court Process and The Supreme Court Process and Applying Decision Making ModelsApplying Decision Making Models

Oral ArgumentOral Argument Historical ChangesHistorical Changes ScheduleSchedule

Conference on the Conference on the MeritsMerits Role of the Chief JusticeRole of the Chief Justice

The Original Vote on The Original Vote on the Meritsthe Merits

Opinion AssignmentOpinion Assignment Four Factors that Four Factors that

influence opinion influence opinion assignment:assignment:

WorkloadWorkload IdeologyIdeology SpecializationSpecialization Self-assignmentSelf-assignment

The Supreme Court Process and Applying The Supreme Court Process and Applying Decision Making Models (cont’d)Decision Making Models (cont’d)

Draft OpinionsDraft Opinions Factors that influence the length of time to writeFactors that influence the length of time to write

The importance and divisiveness of the caseThe importance and divisiveness of the case The size of the voting majority at the conferenceThe size of the voting majority at the conference Whether one or more justices switched their voteWhether one or more justices switched their vote Whether a case had to be reassigned or carried over to Whether a case had to be reassigned or carried over to

another termanother term Reactions to Draft OpinionsReactions to Draft Opinions

Agree to joinAgree to join Agree to join with the condition of minor revisionsAgree to join with the condition of minor revisions Ask for substantive alterationsAsk for substantive alterations

““Dear Clarence, I disagree with everything in your opinion Dear Clarence, I disagree with everything in your opinion except your name, Justice Blackmun”except your name, Justice Blackmun”

The Supreme Court Process and Applying The Supreme Court Process and Applying Decision Making Models (cont’d)Decision Making Models (cont’d)

Changing VotesChanging Votes Final Vote on the Merits and Final Vote on the Merits and

Announcement of the OpinionAnnouncement of the Opinion