Ideological Divisiveness in Criminal Procedure Cases

• Published date: 01 December 2016
• Author: Kevin G. Buckler,Michael R. Cavanaugh,Shannon K. Fowler,Elizabeth L. Gilmore
• DOI: 10.1177/0734016816668949
• Date: 01 December 2016
• Subject Matter: Articles

Article

Ideological Divisiveness in

Criminal Procedure Cases:

Measuring Variability in U.S.

Supreme Court Outcomes

Kevin G. Buckler

1

, Elizabeth L. Gilmore

1

,

Michael R. Cavanaugh

1

, and Shannon K. Fowler

1

Abstract

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.

Keywords

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.

1

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.

Email: bucklerk@uhd.edu

Criminal Justice Review

2016, Vol. 41(4) 409-426

ª2016 Georgia State University

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DOI: 10.1177/0734016816668949

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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)