Keepers of the Covenant or Platonic Guardians? Decision Making on the U.S. Supreme Court

• Published date: 01 September 2007
• Date: 01 September 2007
• Author: Bryan W. Marshall,Brett W. Curry,Richard L. Pacelle
• DOI: 10.1177/1532673X06298927
• Subject Matter: Articles

American Politics Research

Volume 35 Number 5

September 2007 694-725

© 2007 Sage Publications

10.1177/1532673X06298927

http://apr.sagepub.com

hosted at

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694

Authors’Note: We wish to thank Professors Lawrence Baum, Christopher Zorn, Laura Langer,

Pamela Corley,and Chad King for comments on previous versions of this article. We also wish

to thank the reviewers for their suggestions. We would like to thank Andrea Pyatt, Stephanie

Lindley, and Marcus Hendershot for their excellent research assistance and Fenton Martin for

her help. Funding for this project was provided by the University of Missouri Research Board.

Keepers of the Covenant

or Platonic Guardians?

Decision Making on the

U.S. Supreme Court

Richard L. Pacelle Jr.

Georgia Southern University

Bryan W. Marshall

Miami University

Brett W. Curry

Georgia Southern University

How do the justices of the Supreme Court make their decisions? How does

the Supreme Court of the United States make its decisions? The answer to

these questions may not be the same. In studying judicial decision making,

there has been a disconnection between individual and institutional levels of

analysis. Lifetime tenure insulates individual justices and permits them to act

on their substantive preferences. At the same time,the Court lacks the “sword

and purse” and must rely on the other branches to fund or implement its

directives. This study develops an integrative model to explain Supreme

Court decision making. Using constitutional civil liberties and civil rights

cases in the 1953 to 2000 period, conditions favorable to the attitudinal

model, we find that institutional decision making is a function of attitudinal,

strategic, and legal factors.

Keywords: U.S. Supreme Court; judicial politics; judicial independence; the

attitudinal model; judicial decision making; constitutional law; precedent;

stare decisis

In studying judicial decision making, there has been a disconnection

between individual and institutional levels of analysis. Perhaps that

Pacelle et al. / U.S. Supreme Court Decision Making 695

disconnection is best represented in considering the supposed indepen-

dence of the Court and the justices. Lifetime tenure and the nomination

process insulate individual justices and permit them to act on their own

views. At the same time, the institution is hardly independent. The Court

lacks the “sword and purse” and must rely on the other branches to fund

or implement its directives. So although the justices are free to vote their

individual attitudes, the Court needs to pay attention to its limitations as

an institution.

One well-known symbol of this disconnection is represented by the

Supreme Court’s decisions concerning abortion. Reproductive rights has

been a national political issue for a generation, since the Supreme Court

announced that women have a qualified right to control their own repro-

ductive decisions (Keynes, 1989; K. O’Connor, 1996). For 16 of the next

20 years, Republicans dominated the White House, allowing them to place

their imprint on the Supreme Court. The one Democrat to serve between

1969 and 1992, Jimmy Carter, was the only president since Reconstruction

to be denied the opportunity to select a Supreme Court justice. During the

Reagan and Bush administrations, abortion was a litmus test for judicial

nominees. Three of Ronald Reagan’s selections, Sandra Day O’Connor,

Antonin Scalia, and Anthony Kennedy, had supposedly been right on the

issue. George Bush had the opportunity to nominate two justices, and it was

assumed that David Souter and Clarence Thomas had passed a similar lit-

mus test (Abraham, 1999; Epstein & Segal, 2005; C. Smith, 1993).

Reagan and Bush also sent their solicitors general into the Supreme

Court to argue that Roe v. Wade should be overturned. For many years, the

Court refused the invitation and even strengthened Roe (Pacelle, 2003).

But as the liberal members of the Court retired, the numbers were mount-

ing in favor of the right-to-life position. It was no surprise that when the

Supreme Court announced it would hear oral arguments in Planned

Parenthood of Southeastern Pennsylvania v. Casey, pundits predicted the

end of Roe v. Wade. A simple head count seemed to confirm the obvious:

Chief Justice Rehnquist and Justice White had dissented from the origi-

nal Roe decision and opposed reproductive rights from the outset. Justice

Scalia joined them in opposition. Justice O’Connor, though not as mili-

tant in her opposition, frequently held that Roe was wrongly decided and

often permitted state restrictions. In his first opportunity, Justice Kennedy

opposed reproductive rights. Justices Souter and Thomas had not yet

faced an abortion rights case, but they had replaced liberal Justices

William Brennan and Thurgood Marshall. Thus, there seemed to be at

least five certain votes to overturn Roe.

A funny thing happened on the way to the demise of Roe. Justice

Blackmun, the author of the original Roe decision, and Justice Stevens voted

to uphold reproductive rights. As expected, Rehnquist, Scalia, Thomas, and

White voted to strike the decision. The anti-Roe forces needed only one vote

to constitute a majority. Both O’Connor and Kennedy were on record as

opposing Roe and at least one seemed certain to provide that vote. Instead,

O’Connor, Kennedy, and Souter voted to sustain Roe (Pacelle, 2002).

This result seems curious on a number of levels. Most significant, per-

haps, there has long been an argument that Supreme Court justices decide

cases on the basis of their values and attitudes (Rohde & Spaeth, 1976;

Segal & Spaeth, 1993, 2002). Yet here in a case that seemed to be teed up

for a reversal, O’Connor and Kennedy joined Souter to protect Roe v. Wade.

In their joint opinion, O’Connor, Kennedy, and Souter, adopting judicial

restraint, reaffirmed Roe arguing that “principles of institutional integrity

and the rule of stare decisis” mandated the holding. Thus, the three justices

seemed to put aside their values and personal preferences and supported

existing precedent because it was settled law. Their opinion openly dis-

cussed the Court’s legitimacy, its ultimate resource. The other justices

appeared to resort to their values and attitudes in deciding the case (Baum,

1997). This decision, and many like it, raises a number of questions: How

do the justices of the Supreme Court make their decisions? How does the

Supreme Court of the United States make its decisions? Are the answers to

the two questions the same? These questions beg the central question: What

factors go into a judicial decision? Three models have been offered to

explain judicial decision making: the legal model, the attitudinal model,

and the strategic model.

In its pristine form, the legal model stands for the notion that the justices

carefully weigh existing precedents and relevant constitutional or statutory

provisions when deciding cases. Legal factors are seen as legitimate and

suggest that judges adhere to a distinctive set of norms and traditions in car-

rying out their responsibilities. Legal factors would include reliance on

precedent, deference to the elected branches, and the attempt to use neutral

principles to unravel the meaning of the Constitution (Ely, 1980; Wechsler,

1959; but see Dworkin, 1986). In a dispassionate manner, the justices are

supposed to begin cases with no preconceptions or biases.

Although few would argue that precedents are determinative of deci-

sions, stare decisis provides a “gravitational effect” on justices (Aldisert,

1990; Segal, Spaeth, & Benesh, 2005, p. 29). The Court attempts to build

doctrine coherently over time (Kahn, 1994). Clayton and Gillman (1999)

argue that the legal model is a commitment to apply “interpretive canons or

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