The Influence of Law in the Supreme Court’s Search-and-Seizure Jurisprudence

DOI10.1177/1532673X04264987
Published date01 January 2005
Date01 January 2005
Subject MatterArticles
/tmp/tmp-17u7AHv5HAf8aa/input 10.1177/1532673X04264987
ARTICLE
AMERICAN POLITICS RESEARCH / January 2005
Kritzer, Richards / SEARCH-AND-SEIZURE JURISPRUDENCE
THE INFLUENCE OF LAW IN THE SUPREME
COURT’S SEARCH-AND-SEIZURE JURISPRUDENCE
HERBERT M. KRITZER
University of Wisconsin–Madison
MARK J. RICHARDS
Grand Valley State University
In this research note/replication,we applythe constructof jurisprudentialregimes as describedin
our recent article to the jurisprudentialarea of search and seizure. Given the centrality of this area
of Supreme Court decision making in the core studies supporting the attitudinal model, replicat-
ing our analysis of the jurisprudential regime construct in this area provides an important test of
the concept. Our results producestrong supportfor the propositionthat post-Mapp decision mak-
ing can be separated into distinct regimes, with a set of important cases decided in 1983-1984
demarcating the regimes. The predictors of decisions in the two periods are consistent with the
types of changes one would expect the regime shift to produce. Our findings challenge the
attitudinalists’proposition that there is at best negligible statistical evidence that law influences
Supreme Court decision making.
Keywords: judicial behavior; search and seizure; U.S. Supreme Court; jurisprudential
regime
Proponents of the attitudinal model of Supreme Court decision
making have attempted to frame the Supreme Court decision-making
research question as law versus the political attitudes of the justices.
The only effective statistical test for law that has been devised to date,
according to Segal and Spaeth (1996), is to assess whether the justices
Authors’Note: We thank Jeff Segal for makinghis data available to us, Joy Willis for assistance in
coding the cases to update Jeff Segal’s data set through the 1990s, and Donald Downs for sugges-
tions on possible regime splits for search-and-seizure jurisprudence. We also thank editor James
Gimpel as well as the anonymous reviewers at American Politics Research for their insightful
comments, and Williamson Wallace and Patricia Parker for their guidance in finding Fourth
Amendmentcommentary. Support for this research was provided by the University of Wisconsin
Graduate School, the University of Wisconsin Law School, and the University of Wisconsin
Department of Political Science.
AMERICAN POLITICS RESEARCH, Vol. 33 No. 1, January 2005 33-55
DOI: 10.1177/1532673X04264987
© 2005 Sage Publications
33

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AMERICAN POLITICS RESEARCH / January 2005
originally dissented from a key precedent but later adhered to it in
progeny cases.1 “We test arguments from the legal model claiming
that the United States Supreme Court justices will follow previously
established legal rules even when they disagree with them; i.e. that
they are influenced by stare decisis” (p. 971). In their most extreme
statement of their position, Segal and Spaeth (1994) contend that the
“the attitudinal model is a complete and adequate model of the
Supreme Court’s decisions on the merits” and “attitudinal factors are
all that systematically explain the votes of the justices” (p. 11). In a
somewhat later analysis, Spaeth and Segal (1999) concede that jus-
tices might defer to law over their policy preferences on some occa-
sions but that “the overall levels of precedential behavior are so low
that only . . . preferential models . . . appear to be in the right ballpark”
(p. 288).
In a recent article, we proposed a new way of conceptualizing the
role of law in explanations of Supreme Court decision making (Rich-
ards & Kritzer, 2002). We argue that it is incorrect to think of law at the
Supreme Court level as operating through the traditional mechanisms
of plain meaning, precedent, or intent of the drafters. Given the
Court’s discretionary docket, the cases decided by the Court are pre-
cisely those that cannot be decided through the relatively mechanistic
processes that Segal and Spaeth label the “legal model.”
In our earlier article, we argue that the influence of law is to be
found in what we label jurisprudential regimes. We define a jurispru-
dential regime as “a key precedent, or a set of related precedents, that
structures the way in which the Supreme Court justices evaluate key
elements of cases in arriving at decisions in a particular legal area”
(Richards & Kritzer, 2002, p. 308). Empirically, jurisprudential regimes
show up in terms of the variables influencing justices’ decisions and
can be best detected by looking and testing for changes in regime in a
particular jurisprudential area. For example, a regime may institute a
new standard of review or balancing test. Justices then apply the
regime in the relevant area of law, which changes how case factors
matter to the justices. We have tested this theory by examining
Supreme Court decisions in the area of free expression (Richards &
Kritzer, 2002) and in the area of the Establishment Clause (Kritzer &
Richards, 2003). In the free expression area, we hypothesized that the
1972 companion cases Chicago Police Department v. Mosley and

Kritzer, Richards / SEARCH-AND-SEIZURE JURISPRUDENCE
35
Grayned v. Rockford demarcated a regime change that is reflected in a
central distinction between regulation that is content neutral and regu-
lation that is content based. Our statistical analysis provided strong
support for the theory as applied in this area of Supreme Court juris-
prudence. In the Establishment Clause area, we hypothesized that
Lemon v. Kurtzman (1971) demarcated a regime shift and that the fac-
tors encompassed in the much discussed Lemon test would be more
influential after 1971; again, our statistical analysis provided strong
support for our theory.
Our core argument is that the influence of law on Supreme Court
decision making must be considered from a neoinstitutional perspec-
tive (see Clayton & Gillman, 1999; Epstein & Knight, 1998) rather
than as a mechanical construct dictating the outcome of cases. That is,
law, like other institutions, is created by actors (justices) with political
goals (attitudes) whose subsequent decisions are then in turn influ-
enced but not determined by the institutional structure they have cre-
ated. We point to the early work of Shapiro (1964, 1968) on political
jurisprudence, and its later development by Smith (1988), as reflect-
ing these kinds of institutional influences. Asserting that the Court
and its justices are political by no means precludes them from having a
different relationship to law and legal decision making than is the case
for politicians in the elected branches. As we (Richards & Kritzer,
2002) noted, “Leaving jurisprudence out of the analytic framework
fails to recognize both the distinctive nature of courts and the theoretical
point that ideas and institutions matter” (p. 306).
But why would politically independent, politically insulated deci-
sion makers such as the justices not simply follow their political pref-
erences? We argue that the justices create jurisprudential regimes to
provide guidance to other political actors and to themselves.2 The goal
here is consistency, both for themselves and for other political actors
(Dworkin, 1978): As the justices decide a case, they reason about how
the particular facts of the instant case fit with the principles of the rele-
vant regime they have established in order to promote consistent treat-
ment of similar situations (Richards & Kritzer, 2002, p. 307). This rea-
soning process also enables the justices to make appeals to their
colleagues that are more than just first-personal rationalizations of
their own policy preferences (Nagel, 1997; Wahlbeck, Spriggs, &
Maltzman, 1998). Thus, we (Richards & Kritzer, 2002, p. 308) argue

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AMERICAN POLITICS RESEARCH / January 2005
jurisprudential regimes help to overcome the coordination problems
that occur if each of the justices seeks only to maximize his or her
policy goals.
A central question not answered by our original article is whether
the pattern we found for free expression cases can be found for other
jurisprudential areas. As noted above, we have extended the analysis
to the area of the Establishment Clause (Kritzer & Richards, 2003). In
this research note, we extend our approach to the area of search and
seizure, which has been prominently analyzed by Segal and Spaeth
(1993, pp. 216-231; 2002, pp. 314-326), in making their argument
about the attitudinal model. Our theoretical contribution, then, is two-
fold. First, we attempt to expand the jurisprudential regime theory
beyond its previous applications to freedom of expression and the
Establishment Clause. If it also explains search-and-seizure deci-
sions, this would provide further evidence that the theory is
generalizable. Second, we directly challenge the key fact-pattern
model that has been touted as prime evidence supporting the attitudi-
nal model. If we demonstrate that the jurisprudential regime model
can explain decision making in search-and-seizure cases, this means
that Segal and Spaeth’s model of search-and-seizure decision making
is underspecified and that Segal and Spaeth have overstated the
significance of their model for the debate over whether law matters.
Segal’s (1984) original explanation of Supreme Court decision
making in the area of Fourth Amendment search-and-seizure cases
was presented in support of a legal model. This model considered
legal factors such as whether the search or seizure took place in a home
or in a car and whether there...

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