Does Legal Doctrine Matter? Unpacking Law and Policy Preferences on the U.S. Supreme Court

Judicial scholars often struggle to disentangle the effects of law and policy preferences on U.S. Supreme Court decision making. We employ a new approach to measuring the effect—if any—of the law on justices' decisions. We use positions taken on Supreme Court cases by members of Congress and presidents to identify policy components of voting. Doing so enables us to isolate the effects of three legal doctrines: adherence to precedent, judicial restraint, and a strict interpretation of the First Amendment's protection of speech clause. We find considerable evidence that legal factors play an important role in Supreme Court decision making. We also find that the effect of legal factors varies across justices.

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Disentangling Law and Policy Preferences

The Constrained Court ◽

10.23943/princeton/9780691151045.003.0003 ◽

2011 ◽

Author(s):

Michael A. Bailey ◽

Forrest Maltzman

Keyword(s):

Supreme Court ◽

Theoretical Framework ◽

Policy Preferences ◽

The Political ◽

Court Case ◽

Decisive Effect ◽

Motivated Behavior ◽

Law And Policy ◽

Supreme Court Case

This chapter provides a theoretical framework for disentangling the political and legal perspectives on Court behavior. It shows that, indeed, the problem is knotty and how it is impossible to fully separate legal from policy-motivated behavior using only Supreme Court voting data. The knottiness of the problem is exacerbated by the fact that legal factors can exert a decisive effect on a Supreme Court case even when the voting breaks down along ideological lines. This is an incredibly important point. The relentless flow of cases in which justices break down in ideologically sensible ways should not be taken as evidence that justices' decisions are dominated by ideological policy orientations. Instead, the model makes it clear that law can be decisive even when we observe ideological patterns in Court voting. This is especially true when the justices share a consensus about the legal values in question.

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Supreme Court Decision Making: New Institutionalist Approaches. Edited by Cornell W. Clayton and Howard Gillman. Chicago: University of Chicago Press, 1999. 344p. $55.00 cloth, $19.00 paper.

American Political Science Review ◽

10.1017/s000305540133201x ◽

2001 ◽

Vol 95 (1) ◽

pp. 210-212

Author(s):

Michael McCann

Keyword(s):

Decision Making ◽

Supreme Court ◽

Supreme Court Decision ◽

Court Decision ◽

Policy Preferences ◽

Collective Response ◽

Recent Scholarship ◽

Institutional Contexts ◽

University Of Chicago Press ◽

The U.S

The editors of this timely volume announce at the outset that their aim is to provide a forum for recent scholarship that reacts critically to the previous generation of behavioralists who, since the 1950s, have analyzed the U.S. Supreme Court as little more than an aggregate of the relatively stable and identifiable policy preferences held by individual justices. Specifically, these essays pose a collective "response by a succeeding generation of Supreme Court scholars who are trained in political behavioralism but who have rediscovered the value and importance of understanding institutional contexts" (p. 12).

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The Politics of Dissents and Concurrences on the U.S. Supreme Court

American Politics Quarterly ◽

10.1177/1532673x99027004006 ◽

1999 ◽

Vol 27 (4) ◽

pp. 488-514 ◽

Cited By ~ 61

Author(s):

PAUL J. WAHLBECK ◽

JAMES F. SPRIGGS ◽

FORREST MALTZMAN

Keyword(s):

Supreme Court ◽

Logit Model ◽

Multinomial Logit Model ◽

Policy Preferences ◽

Institutional Constraints ◽

Majority Opinion ◽

Burger Court ◽

Using Data ◽

Individual Justice ◽

The U.S

Why do justices author or join separate opinions? Most attempts to address the dynamics of concurrence and dissent focus on aggregate patterns across time or courts. In contrast, we explain why an individual justice chooses to author or join a separate opinion. We argue that separate opinions result from justices' pursuit of their policy preferences within both strategic and institutional constraints. Using data from the Burger Court (1969 to 1985 terms), we estimate a multinomial logit model to test the influence of these factors on justices' decisions to join or author a regular concurrence, a special concurrence, or a dissent, as opposed to joining the majority opinion. Our results show that this choice reflects the justices' conditional pursuit of their policy preferences. We also disentangle the decision to join or author separate opinions, and we find that the latter decision is also influenced by the time remaining in the Court's term.

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Issues, Agendas, and Decision Making on the Supreme Court

American Political Science Review ◽

10.2307/2945849 ◽

1996 ◽

Vol 90 (4) ◽

pp. 853-865 ◽

Cited By ~ 12

Author(s):

Kevin T. McGuire ◽

Barbara Palmer

Keyword(s):

Decision Making ◽

Supreme Court ◽

Agenda Setting ◽

Policy Preferences ◽

Agenda Building ◽

The Past ◽

The Supreme Court ◽

The U.S

In the process of agenda setting, the U.S. Supreme Court is limited to selecting from among only those cases brought before it. Despite this limitation, the justices possess considerable discretion and can reshape the issues in a case as a means of advancing their policy preferences. With data drawn from the Court's opinions, we find that, over the past twenty-five years, the justices have evinced a frequent willingness to expand the issues on their plenary docket and resolve questions not formally presented by the parties. We conclude that, notwithstanding informal norms that disapprove of this practice, issue fluidity is an important component in a continuous program of agenda building.

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Antitrust: U.S. Supreme Court Affirms FTC Jurisdiction but Vacates Scope of Analysis on CDA Policy

The Journal of Law Medicine & Ethics ◽

10.1017/s1073110500012912 ◽

1999 ◽

Vol 27 (2) ◽

pp. 197-198

Author(s):

Joseph R. Zakhary

Keyword(s):

Public Relations ◽

Supreme Court ◽

Federal Trade Commission ◽

Ninth Circuit ◽

Court Of Appeals ◽

For Profit ◽

Rule Of Reason ◽

Antitrust Analysis ◽

Business Financing ◽

The U.S

In California Dental Association v. FTC, 119 S. Ct. 1604 (1999), the U.S. Supreme Court reviewed a decision by the U.S. Court of Appeals for the Ninth Circuit that a nonprofit affiliation of dentists violated section 5 of the Federal Trade Commission Act (FTCA), 15 U.S.C.A. § 45 (1998), which prohibits unfair competition. The Court examined two issues: (1) the Federal Trade Commission's (FTC) jurisdiction over the California Dental Association (CDA); and (2) the proper scope of antitrust analysis. The Court unanimously held that CDA was subject to FTC's jurisdiction, but split 5-4 in its finding that the district court's use of abbreviated rule-of-reason analysis was inappropriate.CDA is a voluntary, nonprofit association of local dental societies. It boasts approximately 19,000 members, who constitute roughly threequarters of the dentists practicing in California. Although a nonprofit, CDA includes for-profit subsidiaries that financially benefit CDA members. CDA gives its members access to insurance and business financing, and lobbies and litigates on their behalf. Members also benefit from CDA marketing and public relations campaigns.

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