The context of ideology: law, politics, and empirical legal scholarship.

• Author: Shapiro, Carolyn

1. INTRODUCTION II. CODING CASE IDEOLOGY III. OUTCOME CODING A. How It Works and How It Doesn't 1. The Supreme Court Database. 2. Challenging the Database's Issue and Ideology Codes B. The Recoding Project 1. Quantitative Analysis Table 1: Ideology Coding for 95-Case Sample in U.S. Supreme Court Database and Recoding Project Table 2: Factors Tested for Effect on Likelihood of Mixed Ideology in Recoded Cases 2. Qualitative Analysis IV. BEHAVIORAL CODING A. A First Approach B. A Refinement: Identifying When There Are More Dimensions V. IDEOLOGICAL SALIENCE AND IDEOLOGICAL LEGITIMACY: A Way Forward? A. Defining Terms B. Is Measuring Ideological Salience Possible? 1. Possible Indicators of Ideological Salience a. Distance from the Court's Median b. Disordered Voting c. Vote Margin d. other Possible Variables 2. Challenges in Using the Indicators C. Learning from Ideological Salience VI. CONCLUSION APPENDIX A Cases in Recoding Sample (Chronological Order) APPENDIX B Cases in Recoding Sample by Ideological Salience I. INTRODUCTION

   Does ideology have a role to play in the work of the Supreme Court? Chief Justice Roberts suggested that it does not when, during his confirmation hearings, he described the judicial role as one of a neutral umpire "call[ing] balls and strikes." (2) In Justice Sotomayor's more recent confirmation hearings, she partially accepted this metaphor (although she said it is an "imperfect" analogy) and consistently rejected the notion that, as a Supreme Court Justice, her personal experiences or perspectives would have a legitimate--or even an inevitable--role to play in her work. (3) These statements reflect a view--widely expressed in public debates over judicial confirmations--that law and legal reasoning can and will provide an objectively correct answer to even the most difficult cases if only the judge is willing to put aside his or her personal preferences and opinions--his or her ideology.

   At the other extreme, the dominant model of Supreme Court decisionmaking in political science has long been the attitudinal model, which posits that the Justices' votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine. (4) More recent and nuanced attempts to describe judicial ideology --attempts that focus not on case outcomes (as the attitudinal model does) but rather on which Justices are in the majority and dissent in each case likewise fail to identify an explicit role for legal reasoning, precedent, or case facts. For these scholars, judging on the Supreme Court is presumptively about politics or ideology. (5)

   Despite their limitations, these approaches to studying the ideology of Supreme Court cases and Justices are prominent in the burgeoning field of empirical legal scholarship in part because they are conducive to large-scale quantitative analysis. They also are good examples of two significant limitations of much empirical legal scholarship. First, as already mentioned, they at best ignore and at worst reject any role for law in Supreme Court judging. And second, they presume that the ideological nature of each case can be characterized along a single liberal-conservative dimension. As a result, these approaches generally offer no way to evaluate the possibility that a particular case might involve multiple issues or concerns that pull the Justices in different directions and that require them to balance competing interests and priorities.

   As a result of these and other deficiencies, some might dismiss the project of quantitative analysis as, at best, too reductive to be useful, and indeed some legal academics have criticized empirical legal scholarship for such flaws. (6) This Article, however, proceeds from the premise that the tools of quantitative analysis can enrich the longstanding public and academic debates about ideology and judging by offering important information about what the Justices actually do. For example, quantitative analysis might allow us to evaluate the ways in which Justices vote in cases that turn on issues of procedure. Do the votes vary systematically depending on the underlying issues in the cases, and, if so, how? Quantitative analysis of such questions can help scholars avoid basing broad conclusions about the respective roles of ideology and law on a handful of high-profile but unrepresentative cases--a danger to which both traditional legal scholarship and public debate are particularly susceptible. in order to answer such questions, however, we must refine the way empirical scholars identify the ideological nature of cases, making possible acknowledgment and empirical assessment of the cases' legal content.

   Fortunately, traditional legal academics, who generally engage in qualitative analysis of cases and doctrines, and empirical legal scholars, who use large-scale quantitative techniques, have recently begun to engage in serious discussions with each other about how to think about and evaluate the balance between law and ideology. (7) What is missing in many of these discussions, however, is an effort to use the tools of quantitative analysis to engage with actual cases at a level of detail that allows for more nuanced understandings of the interactions between law and politics (or policy, or ideology) and of the interactions among different areas of law and between law and other considerations. There are notable and creative exceptions to this trend, but those works generally focus on particular questions or areas of the law, such as workplace law, tax law, or intellectual property. (8) in this Article, in contrast, I engage with a cross-section of cases in order to struggle with and evaluate methods of identifying or describing ideology and the role it plays in the cases. And I conclude that quantitative scholars must think about how to identify the ideological valence of Supreme Court cases in entirely new ways. Specifically, I argue that rather than assuming that the ideological character of cases is the cases' most important aspect, we should evaluate whether and to what extent ideology plays a role.

   The Article proceeds in four substantive parts. Part II provides the basic context of the inquiry into attempts to identify the ideological character of Supreme Court cases. in this Part, I explain some of the reasons scholars want to characterize the ideological nature of cases, and I describe and critique in general terms the two most common approaches: outcome Coding, which assigns a liberal or conservative label to each case depending on its outcome, and Behavioral Coding, which focuses on the voting patterns of the Justices. Part III carries the critique of outcome Coding a step further. in this Part, I discuss the widely used U.S. Supreme Court Database, which assigns either a liberal or a conservative ideology code to every Supreme Court case since 1953 and which is the primary source of evidence for the attitudinal model. Part Ill also presents an in-depth recoding, discussion, and analysis of a random sample of 95 cases decided by the last Rehnquist natural court. (9) This recoding vividly demonstrates how a presumption that each case involves only one issue, coupled with binary liberal/conservative outcome codes, masks important information about the cases' ideological and legal content and context. As a result, the Database's ideology coding involves subjective and unarticulated decisions, leading to great indeterminacy. In fact, for more than a third of the recoded cases, under the Database's basic protocols, the ideological nature of the cases could have been coded as either liberal or conservative, depending on what issue the coder assigned to the case. Through a qualitative analysis of these cases, Part Ill also identifies particular types of cases in which the Justices must reconcile competing priorities and issues--ripe areas for future research.

   Part IV details current efforts to use Behavioral Coding to identify the ideological nature of particular cases. Behavioral Coding infers the ideological character of cases from the voting patterns of the Justices. In this Part, through a qualitative analysis of some of the recoded cases, I examine some of the strengths and weaknesses of these approaches. For example, I demonstrate some of the limitations of relying on a methodology that promises more precision than it can actually provide and that elides the reality that the Justices often face cases that present multiple and competing issues. I also discuss, however, some of the benefits of leveraging information provided by the Justices' actual voting patterns.

   Finally, in Part V of the Article, I propose a new way for quantitative scholars to think about the role ideology plays in Supreme Court cases. Specifically, I suggest that rather than focusing--as most empirical scholars do on the ideological position of a case (liberal or conservative), we should look at the extent to which the case in fact had ideological salience to the Justices themselves. This proposal capitalizes on the insight--often pointed out by traditional legal scholars and acknowledged by some quantitative scholars that many cases, even at the Supreme Court level, do not have a particularly strong ideological component. If we can separate cases that the Justices treated as largely non-ideological from those cases that were ideologically salient, we can begin to analyze what influences the Justices' decisionmaking in different circumstances. We can address such questions as when and how law dominates, when and how ideology does, and whether other factors might explain the Justices' votes and opinions. In this Part, I identify and discuss a number of factors likely to be useful in identifying ideological salience.

   In Part V, I also describe some of the important benefits that a focus on ideological salience would bring to empirical legal scholarship. For example, it...