Voting Fluidity and the Attitudinal Model of Supreme Court Decision Making

Date01 March 1991
Published date01 March 1991
Subject MatterArticles
TIMOTHY M. HAGLE, University of lowa
HAROLD J. SPAETH, Michigan State Univeristy
his seminal study of fludidity in the voting of Supreme Court
justices, Howard (1968) argued that such voting belies the validity
of the attitudinal model that Schubert (1962, 1965) originally for-
mulated : &dquo; ... if a vote or an opinion has changed in response to a
multiplicity of intra-court influences before its public exposure, how
reliable is that vote or opinion as an indicator of attitude, ideology, or

one pleases, predilection?&dquo; (Howard 1968: 44).
Changes in the votes of the justices will occur between the original
vote on the merits and the final vote. The original vote is cast in secret
conference after oral argument and before the assignment of the major-
ity opinion. The final vote is cast during the process of the justices’
handling down the various opinions that they write or join.
Given the asserted conflict between fluidity and the fundamental
assumption of the attitudinal model - that the justices’ votes depend on
their attitudes, or personal policy preferences - it is somewhat surpris-
ing that neither Howard nor anyone else has attempted to document
the character and extent of any such disagreement.’ No one has done
so probably for two reasons. First, Howard, utilizing Murphy’s (1964)
now classic work, presented persuasive reasons drawn from role and
small group theory to explain changes in judicial voting: the freshman
effect, strategic variables associated with institutional loyalty and the
NOTE: We wish to thank Saul Brenner and Robin Dorff for providing us with the
original vote data needed for this study and Jeff Segal for his very helpful
comments. Other data were drawn from Harold Spaeth’s United States Supreme
Court Judicial Data Base, a project funded by the Law and Social Sciences
Program of the NSF, Grant No. SES-8313773. This is a revision of a paper
presented at the 1990 meeting of the Midwest Political Science Association.
’ Brenner’s two fluidity studies (1980, 1982) concern its incidence and the extent to
which it resulted in conformity voting (an initial dissent followed by a final vote
with the majority) and counter-conformity (vice-versa). Neither study addresses
the relationship between fluidity and the attitudinal model.

presentation of a united front, and the changing perceptions of partic-
ular justices. Second, Howard’s study emphasized opinion fluidity at
least as much as voting fluidity. The reasons he and Murphy ascribe
for fluidity especially apply to the justices’ opinions, as Schwartz (1983)
documents. Adding to the difficulty of testing for incompatibility between
fluidity and the attitudinal model was the unavailability of original
vote data. Only with the release of the docket books of Justices Bren-
nan, Burton, and Clark have data for all decisions of the Warren
Court become available.
Although the valdity of the attitudinal model remains unresolved
because it infers attitudes and values (the independent variable) from
votes (the dependent variable), Segal and Cover (1989) have derived
independent and reliable measures of the justices’ values from the per-
ceptions of third parties. Segal’s and Cover’s work does not demon-
strate the validity of the attitudinal model, but it is a major component
of the scholarly enterprise that cumulatively supports a &dquo;confident
inference&dquo; (Kobylka 1989: 550) that attitudes affect behavior. (Also
see Epstein, Walker, and Dixon 1989: 828.)
Rather than assume incompatibility between voting fluidity and
the attitudinal model, we will attempt to determine (1) whether the
attitudinal model can explain fluidity between the original and final
votes on the merits, and (2) whether various intervening variables related
to small group and role theory, including the freshman effect, explain
such fluidity as exists in the justices’ voting.
Our data comprise the orally argued decisions of the Warren Court,
excluding cases decided by a tied vote and those in which the original
decision coalition broke up, in which case citation is the unit of anal-
ysis (N=1793). We exclude tie votes because the Reports do not indi-
cate how the justices vote in such cases. In order to maintain a singu-
lar focus, we also exclude the cases where a justice originally dissented
but switched to the majority at the final vote. The variables that Bren-
ner and Dorff (1986) found to be associated with conformity voting
arguably differ from those that motivate dissent. Finally, we exclude
the 89 cases in which the original decision coalition broke up, produc-
ing the outcome at the final voe that lost originally. These cases have
been the subject of...

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