Ideological Divisiveness in Criminal Procedure Cases

Published date01 December 2016
Date01 December 2016
Subject MatterArticles
Ideological Divisiveness in
Criminal Procedure Cases:
Measuring Variability in U.S.
Supreme Court Outcomes
Kevin G. Buckler
, Elizabeth L. Gilmore
Michael R. Cavanaugh
, and Shannon K. Fowler
Limited scholarly attention has been devoted to an understanding of ideology in criminal procedure
cases decided by appellate courts. This study focuses on U.S. Supreme Court outcomes and
develops a measurement of ideological divisiveness in the voting patterns of the justices for the
decisions announced for the 1994–2014 terms of the Court. The analysis approaches the issue of
ideological divisiveness in voting patterns through development of a Case Ideology Divisiveness
score that is a weighted measure of vote divisiveness (the average justice deviation from the majority
opinion) and depth of divisiveness (the number of unique concurring and dissenting opinions filed).
The score is reported for criminal procedure, civil rights, First Amendment, and due process cases.
The analysis then examines the score for 16 categories of criminal procedure case types and reports
mean comparison data. Trends and implications are discussed.
U.S. Supreme Court, criminal procedure, ideological divisiveness
In an essay by Gerring (1997), published in Political Science Quarterly, the author seeks to define
the parameters of the term ‘‘ideology.’’ His essay notes that while the concept is ‘‘a central term of
social science discourse’’ (p. 959), it ‘‘encompasses a good many definit ional traits which are
directly at odds with one another’’ (p. 957). The essential point that Gerring makes is that to some
ideology has dogmatic qualities while to others it is an eloquent concept with much sophistication.
To some the concept is laden with social class implications while to others it transcends social class,
and to some it is a dominant mode of thinking while to others its implications are most relevant to
persons of alienated status quo. While the precise meaning of the term carries an elusive quality, the
broad strokes of criminal justice ideology are relatively easy to identify.
Department of Criminal Justice, University of Houston–Downtown, Houston, TX, USA
Corresponding Author:
Kevin G. Buckler, Department of Criminal Justice, University of Houston–Downtown, Suite C-340 Commerce Building,
Houston, TX, 77002, USA.
Criminal Justice Review
2016, Vol. 41(4) 409-426
ª2016 Georgia State University
Reprints and permission:
DOI: 10.1177/0734016816668949
Ideology is a salient concept a nd has a substant ial presence in cr iminal justice s cholarship.
Perhaps the most influential work in this area of criminal justice studies is that of Herbert Packer
(1968) who identified and distinguished ‘‘crime control’’ and ‘‘due process’’ as competing sets of
values that operate and guide people’s opinions and criminal justice practice and policy. To
summarize, Packer identified a ‘‘crime control model’’ that emphasizes identification of and
repression of criminal behavior, trust and confidence in law enforcemen t (informal) methods to
identify and repress crime, and efficient processing of cases through the system in an ‘‘assembly-
line’’ manner. In contrast, the ‘‘due process model’’ addresses the need to protect the rights of the
criminally accused through restraints on police, court, and corrections officials; places confidence
and trust in courts to review government agent behavior in an independent and impartial way; and
views the criminal justice system as having an error-correction function. Subsequent work has
examined the presence of these competing ideals in media reports on crime and criminal justice
(Chagnon, 2015; Gorelick, 1989; Welch, Fenwick, & Roberts, 1997, 1998) and the politics of
crime control (Anderson, 1995; Caldwell & Caldwell, 2011). The crime con trol and due process
concepts are directly relatable to criminal procedure appellate court case outcomes. In criminal
procedure cases, the interest of the government is up against the interest of a citizen convicted of a
criminal offense. A vote of an individual judge or justice or a case outcome in favor of the
government generally reflects a ‘‘crime control’’ mentality, whereas a vote or an outcome that
favors the individual implies a ‘‘due process’’ direction.
A rather neglected area of attention in criminal justice scholarship is how ideology operates at
the level of the U.S. Supreme Court (hereafter, ‘‘Supreme Court’’ or ‘‘Court’’) in its criminal
procedure cases. While the notion of ideology has played a central role in research on the Court in
the field of political science and has recently appeared in criminal justice scholarship, the extant
measures of ideology address the concept at the level of the justice on the Court who casts the vote
in a case. The most common measure of ideology in this body of work is Martin and Quinn’s
(2002) score. It ranges from negative to positive with a value of 0 representing equilibrium in
conservatism and liberalism. Positive values stand for conservatism and negative scores represent
liberalism. Higher values mean more conservatism or liberalism shown by the justice. The Mar-
tin–Quinn score is based entirely on votes of the particular justice in any given term and may vary
from one term to the next. A separate ideology measure, the Segal and Cover (1989) ideology
score, is based on preconfirmation newspaper editorials from six different news outlets: New York
Times,Washington Post,Chicago Tribune,Los Angeles Times,St. Louis Post-Dispatch,andWall
Street Journal.Itrangesfromavalueof0to1with0meaning most conservative and 1 meaning
most liberal. Each of these ideology scores were developedasawaytoexplainandunderstandthe
impact of ideology on the vote of the justice in subsequent cases once confirmed onto the Court. In
this sense, ideology is viewed as a feature of the particular justice on the court and not as a feature
of the case outcome itself.
This point is not to suggest that these scores have not been used as predictive measures in studies
of case outcomes of the Court because they have been featured in prior research (see, e.g., Buckler,
2015, as applied to criminal procedure cases; see Collins, 2004, 2007, 2008, for analyses of broad
case types). The point is made, instead, to suggest that the concept of ideology is also an important
feature of the case. A particular case may be more or less ideologically divisive than another case. A
particular group of cases, similarly, may be more or less ideologically divisive than another group of
cases. The concept of ideological divisiveness is defined here as the degree to which the justices on
the Court in a particular case agree or disagree on which party should prevail and the reasons why the
party should prevail. The degree of ideological divisiveness across case types and within a particular
case type (but where the cases within the case type have different features) is an important area of
scholarly inquiry that has yet to be fully explored. The currently available measures of justice-based
ideology are lacking in their ability to capture ideological divisiveness in the case outcome.
410 Criminal Justice Review 41(4)

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