Acclimation and Attitudes: “Newcomer” Justices and Precedent Conformance on the Supreme Court

• Published date: 01 March 2004
• Author: Oseph V. Stefko,Mark S. Hurwitz
• DOI: 10.1177/106591290405700110
• Date: 01 March 2004
• Subject Matter: Articles

Acclimation and Attitudes:
“Newcomer” Justices and Precedent Conformance
on the Supreme Court
MARK S. HURWITZ and JOSEPH V. STEFKO, UNIVERSITY AT BUFFALO, SUNY
Do newly appointed justices experience acclimation effects upon their ascent to the Supreme Court? We con-
tend that acclimation is a process, as justices’ conformation to the doctrine of stare decisis is partly a function
of tenure length. We find that precedent conformance is inversely related to tenure, with newcomers follow-
ing legal precedents at rates significantly greater than more tenured colleagues; however, justices slowly but
surely surrender to relatively unfettered judicial power at the Supreme Court, as attitudes increasingly domi-
nate decisionmaking. While votes adhering to precedent are more prevalent for newcomers, all justices are
overwhelmingly influenced by their own ideologies, confirming the inability of the legal model to influence or
explain this aspect of judicial behavior. Our results also indicate that the proclivity of prior research to specify
an express period of acclimation may be flawed. Instead, acclimation is a dynamic process, ever evolving over
justices’ entire duration of service.
The study of newcomers to institutions has long been fessional restraints in his new post. . . . Equivocation, not
a centerpiece of scholarship in political science,
activism, was his primary trait.” Howard generalized
including judicial politics where scholars have con-
beyond this justice’s experience, suggesting that the need for
sidered the role of “freshman effects” on Supreme Court jus-
newcomer justices to acclimate themselves was the norm.
tices. In particular, do newly appointed justices undergo a
In the intervening years since Snyder and Howard paved
process of acclimation upon their ascent to the Court, where
this research trail, a substantial literature has developed
they must educate themselves of appropriate institutional
concerning the merit of acclimation effects at the Supreme
norms and behavioral expectations? Howard (1965) sug-
Court. Biographical studies suggest that institutional norms
gested that it is human nature for newcomers to undergo
create an acclimation period for new justices (e.g., Brennan
some period of adjustment in which they acclimate them-
1983; Frankfurter 1957; Freund 1965; Howard 1965). As
selves to the norms of one of society’s most prominent insti-
well, a myriad of behavioral studies has considered the
tutions. The possibility that acclimation effects exist has sig-
notion that a newcomer effect might influence the justices,
nificant intuitive appeal, as the presence of such influence
including ideological extremism (Hagle 1993), voting fluid-
carries broad implications both for the Supreme Court and
ity (Hagle and Spaeth 1991), voting patterns (Heck and Hall
for scholars who study this institution.
1981; Shipan 2000; Sprague 1968; Wood, Keith, Lanier,
Snyder (1958) is widely credited with initiating the
and Ogundele 1998), opinion writing (Bowen and Scheb
debate on freshman effects in the judiciary. She found that
1993; Brenner and Hagle 1996; Hettinger, Lindquist, and
newcomer justices tended to align themselves with more
Martinek 2003; Maltzman, Spriggs, and Wahlbeck 2000),
moderate “cliques” (237) on the Supreme Court, as novices
and general first-term behavior (Melone 1990; Rubin and
were less likely to join the more ideologically extreme
Melone 1988; Scheb and Ailshie 1985). Yet, as Hagle (1993)
groups of justices. Notwithstanding, over time justices
pointed out, empirical verification of acclimation effects in
would gravitate toward one of the more ideological cliques
the judiciary is mixed. That scholars continue to study new-
as they grew more accustomed to their position on the
comers is likely a function of the theoretic appeal that a
bench. Howard’s (1965: 474) study of Justice Murphy is
learning process of acclimation exists within political insti-
another seminal work in this area, similarly concluding that
tutions. Whereas the congressional literature generally has
a freshman effect was evident: “The early Murphy . . . was a
concluded that apprenticeship no longer is applicable to an
self-conscious freshman, restless over the personal and pro-
institution whose novice members often rise from the ranks
of state legislatures where norms are analogous to those in
Congress (Hibbing 1991; Rohde 1988), the Supreme Court
provides an interesting contrast. For instance, justices are
NOTE: We thank Paul Brace, Franco Mattei, Jeffrey Segal, and Harold
faced with dramatically different institutional constraints
Spaeth, as well as the anonymous referees, for their comments and
suggestions on this article, an earlier version of which we pre-
when they are elevated from inferior courts to the Supreme
sented at the 2002 Midwest Political Science Association meeting.
Court, as the availability of judicial review and threat of
We alone are responsible for our interpretations and analyses, as
reversal are conspicuously absent on the high Court. Under
well as any errors or omissions.
these circumstances, newcomer justices might reasonably
Political Research Quarterly, Vol. 57, No. 1 (March 2004): pp. 121-129
be expected to encounter a process of acclimation.
121

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122
POLITICAL RESEARCH QUARTERLY
C o n t r a ry to the pronouncements of some scholars (e.g.,
labeled landmark and progeny decisions. As for landmarks,
Bowen and Scheb 1993), the final word has yet to be written
they identified a 100 percent sample of major precedents in
on whether newcomer justices experience a process of accli-
which a justice published a dissent.3 Segal and Spaeth chose
mation upon appointment to the Court. Accord i n g l y, we
landmarks as precedents because they “are more likely to
analyze one aspect of the still-debated newcomer effect on
establish precedential guidelines for future cases and
the Supreme Court: precedent conformance. Despite the
because landmark cases are more likely to actually generate
depth and breadth of the literature, no study of which we are
progeny that we can analyze” (1996: 976).
a w a re has examined whether justices’ adherence to the doc-
They also included a stratified (by period) random sample
trine of horizontal s t a re decisis is a function of the length of
of minor pre c e d e n t s .4 They linked all precedents to subse-
time they have served on the Court .1 This notion is a logical
quent progeny decisions based upon the presence of a dis-
extension of the prior re s e a rch on newcomer effects. Furt h e r,
sent in the precedent, since dissenters have revealed their
given the capricious evidence from these studies, the ques-
p re f e rences by opposing the newly established pre c e d e n t .
tion whether newcomer and senior justices are diff e re n t i a l l y
P rogenies are re g a rded as “decisions subsequent to the pre c e-
swayed by precedent is an appropriate and important one.
dent whose issue(s) and factual circumstances closely re s e m-
A c c o rd i n g l y, we seek to determine whether precedent con-
ble those of the precedent itself” (1999: 25). Segal and
f o rmance, or lack thereof, is idiosyncratic to newcomer jus-
Spaeth then assessed the rate at which justices who dissented
tices or otherwise is a function of their tenure length.
f rom a precedent, and thereby tangibly expressed disap-
p roval with it, subsequently ‘switched’ their votes on re l e v a n t
PRECEDENT CONFORMANCE AS A FUNCTION OF
p rogenies by supporting the precedent with which they pre-
TENURE LENGTH
viously had shown disagreement. “Influence re q u i res people
to do what they otherwise would not. [If] their original pre f-
The premise of our study is that newcomers experience
e rences conflict with the precedent, [and] they subsequently
an anomalous role orientation when they arrive on the
s u p p o rt the precedent, we can make a strong pre s u m p t i o n
Supreme Court that manifests itself at least partially in terms
. . . that the established precedent influenced their votes”
of their adherence to stare decisis. Yet, over time justices
(1999: 23). Segal and Spaeth verified overwhelming evi-
encounter a process of acclimation that influences their con-
dence that justices are not influenced by precedents with
formance to precedent. Many justices reach the high Court
which they had disagreed, a critical aspect of the legal model.
after years presiding over lower courts, where legal factors
R a t h e r, they found that attitudinal explanations were much
are assumed to intrude to a greater and differing degree on
m o re consistent with respect to this type of judicial behavior.
the decisionmaking process than at the Supreme Court
While not without their critics,5 Segal and Spaeth persua-
(Baum 1978, 1997). Even judicial novitiates have been
sively concluded that the legal model inconsequentially
socialized to certain norms of professionalism based on their
explains the influence of s t a re decisis on the Supreme Court .
legal training and practice (Mather, McEwen, and Maiman
While we largely agree that attitudinal influences
2001). Once on the bench, newcomer justices are thrust
explain the greatest pro p o rtion of variance concerning jus-
into positions where for all intents and purposes they are
tices’ votes on the merits, particularly when horizontal s t a re
provided with notable opportunity for their attitudes and
d e c i s i s is at issue, it seems to us that a model of Supre m e
preferences to dominate (Segal and...