Viewing the Supreme Court's marriage cases through the lens of political science.

• Author: Scherer, Nancy

ABSTRACT

Political scientists have developed two principal models for analyzing and predicting the decision making of justices. First, the attitudinal model predicts that decisions are made based on the justices' personal policy preferences. This model can be utilized to correctly predict the votes of each justice in United States v. Windsor. The second model, the strategic model--which is well demonstrated by the votes in Craig v. Boren--borrows its foundation from the attitudinal model, but it also accounts for the fact that justices sometimes must consider the votes of other members of the Court if they want to reach consensus and avoid their most undesirable policy preferences. This model provides an explanation for the seemingly unpredictable results found in Hollingsworth v. Perry, by examining the alleged motivations of the five justices whose opinions broke from how they decided Windsor. Justices Ginsburg, Kagan, and Breyer switched votes between Windsor and Hollingsworth, to find no standing in Perry based on, among other things, their fear that a judgment on the merits would have a backlash similar to that of Roe v. Wade. Justices Alito and Thomas, the most conservative justices, decided that there was standing because the most idealistic tend to resist compromise. With these taken into account, the strategic model is able to predict the Perry outcome.

Contents Introduction I. Historical Development of the Attitudinal Model II. Predicting the Outcome of United States v. Windsor with the Attitudinal Model III. Historical Development of the Strategic Model IV. Application of the Strategic Model to the Proposition Case A. Delay the Decision on the Merits B. The Standard of Review Pursuant to the Equal Protection Clause C. The Right to Marry Should Be Analyzed Under the Due Process Clause INTRODUCTION

Both legal and political science scholars have long contemplated the question, why do Supreme Court justices vote the way they do? The traditional "legal model" of decision making is premised on "the belief that, in one form or another, the decisions of the Court are substantially influenced by the facts of the case in light of the plain meaning of statutes and the Constitution, the intent of the Framers, and/or precedent." (1) But, as esteemed jurist Richard Posner once observed, "[t]here is a tremendous amount of sheer hypocrisy in judicial opinion-writing.... Judges have a terrible anxiety about being thought to base their opinions on guesses or their personal views. To allay that anxiety, they rely on the apparatus of precedent and history, much of it extremely phony." (2)

Tension over the legal model dates as far back as 1897; Justice Oliver Wendell Holmes Jr. acknowledged that law is but "[t]he prophecies of what the courts will do in fact, and nothing more pretentious...." (3) But, his belief that predicting future decisions is but "prophesy" would prove over time to be naive. In their discipline, political scientists have firmly established that Supreme Court decisions can, indeed, be predicted with great accuracy.

In this Article I will first present the two principal models--the attitudinal (4) and strategic (5) models--used by political scientists to predict Supreme Court decisions. (6) Then I will apply these models to explain the outcomes of the two same-sex marriage cases at the center of this symposium. (7) I leave the arduous task of explaining and reconciling the decisions through use of the legal model to constitutional law experts. (8) Here, my task is to present the political science models of decision making, one applicable to United States v. Windsor (9) and the other to Hollingsworth v. Perry. (10) Without reference to the facts of the cases, prior precedents, or methods of constitutional interpretation, these models were able to predict the outcome of the two cases as well as a method to reconcile the judicial decision-making behavior in the two cases.

In Part I, I present a historical account of the attitudinal model. In Part II, I apply the attitudinal model to the Windsor decision. The analysis demonstrates the power of the attitudinal model, which correctly predicted the votes of all nine Justices on the Court and does so simply by knowing each justice's judicial ideology. Part III turns to the development of another model of decision making. This model, the strategic model, builds on the attitudinal model by acknowledging that justices are rational political actors, seeking to see their personal policy preferences become the law of the land. But the strategic model goes one step further, as it recognizes that sometimes justices vote with an eye towards the other justices' preferences in order to form a majority opinion. To elucidate how strategic voting is used by the Supreme Court, I briefly discuss the strategic voting that occurred in the landmark case, Craig v. Boren (11) In Part IV, I look at the strategic voting that occurred in the Windsor dissent and the Perry majority opinion.

1. HISTORICAL DEVELOPMENT OF THE ATTITUDINAL MODEL

   Following Holmes's original observation, (12) in the early 1920s there was a movement afoot among legal scholars known as legal realism; principally, they questioned the common wisdom (13) that judges follow standing legal rules (or precedents) to decide all cases. (14) Instead, they argued that these rules are of limited use in predicting judicial decisions. (15) Kalman called it the "idiosyncrasy" of judicial decision making. (16) Critically, they acknowledged that decisions are made in the context of social reality (17) and personal life experiences; (18) they questioned the reliability of legal precedents and rules used in decisions to justify a jurist's vote. (19) Legal realists thus concluded that any given decision could be read in different ways depending on these two factors. (20) For the legal community, the legal realists' contribution towards understanding judicial decision making was both enlightening and disturbing: "The realists' exposure of the judge as a human being who reasoned from the gut and manipulated legal rules to cover it up cast judicial subjectivity in a frightening light." (21)

   Political Scientist C. Herman Pritchett is sometimes accredited with being the first behavioralist in the study of Supreme Court decision making. (22) Rather than making unproven empirical claims, Pritchett would systematically study the voting behavior of the Roosevelt Court. (23) His study was based on the theory that "justices are motivated by their own preferences." (24) His critical findings demonstrated that the Roosevelt Court justices did not follow legal precedent or respect prior decisions through the doctrine of stare decisis and that there were voting blocs on the Court that could be categorized as "left" or "right." Based on his findings, Pritchett concluded that "the Court is a political institution performing a political function." (25) It was his use of descriptive statistics that built upon the original themes of the legal realists. But Pritchett did not develop a model capable of predicting future decisions of Supreme Court justices--one that could be applied generally and not just to the Roosevelt Court.

   In the 1950s, political scientists began to take their role as "scientists" more seriously. (26) This new movement, known as behavioralism, mimicked the dictates of the hard sciences. For example, political scholars began to insist that research in their field should posit refutable hypotheses, use quantifiable data, and rely on observable unbiased data to test the hypotheses. This trend also found traction among political science scholars of the Supreme Court. (27)

   The next major advancement in the development of the attitudinal model was Glendon Schubert's research. He applied true scientific methods to the study of Supreme Court decision making (28) and found that Justices on the Court were political actors and their decisions part of the political process. (29) In The Judicial Mind, Schubert went further. He hypothesized that a given fact pattern and a justice's preferences (referred to as "ideal points") could be scaled along a conservative-liberal vector. (30) Later, Harold Spaeth looked to psychological theories of behavior, and set down the precepts of the attitudinal model we use today:

   vote = case stimuli (facts) + the justice's attitudes (ideology) (31)

   An attitude was defined as an enduring "interrelated set of beliefs about an object or situation." (32) "Thus, for example, as searches by the police grow[] more intrusive, first liberal, then moderate, and then conservative judges should become increasingly likely to reject the search." (33)

   In 1993, Spaeth and his colleague Jeffrey A. Segal would demonstrate empirically the strength of the attitudinal model. (34) Looking at thousands of Supreme Court decisions, each vote coded as "liberal" or "conservative,"' they found that seventy-one percent of a justice's decision making could be explained solely by reference to the two facets of the attitudinal model. (35) In touting the power that political ideology plays in a justice's final vote, Segal and Spaeth presciently predicted that "if a case on the outcome of a presidential election should reach the Supreme Court ... the Court's decision might well turn on the personal preferences of the justices." (36) Seven years later, their prediction would be proven correct in Bush v. Gore. (37) In this case each justice voted in line with the candidate closest to his or her preferred policy outcome and in so doing elected the President of the United States in 2000. (38)

   It should be noted that the attitudinal model is not without its critics. In fact, for political scientists who study the Court, there is a deep divide between those who agree with the attitudinal model (39) and those who defend the legal model of decision making. (40) Other political scientists simply ignore the attitudinal model and continue...