For years, political scientists have been speaking about the concept of “attitudinalism” in judging. If you would go to conferences, for example, they would assert statements like, “attitudinalism is the best empirical account of judging” and so forth. Or they would say “Supreme Court judges vote their political attitudes.” One of my biggest complaints with this critique of judging – aside from its lack of true empirical support -- is that it plays a language game with its audience. You must first decode what is meant by the term “attitudes” before you know what is said. And the problem is that the meaning often changes without the speaker telling you (or being aware?) of the semantic shell game. Let us look at several things that people have called “attitudinal:”
1. Political Directionality. This is my favorite concept. It is the one that I think is most helpful in building a critique of judging based upon ideology. Under this view, a justice votes according to “political attitudes” if his or her preferences correlate meaningfully with the way that value preferences are organized in the larger political culture. Hence, if a justice systemically prefers outcomes that are said to be classifiable as “left” or “right” according to the way that those same views exist in the larger political culture, he or she is demonstrating political direction in judging. You will note that this is essentially a self-contained observation. Why, after all, would one vote consistently liberal or conservative on the Court if one did not feel that these policy outcomes vindicated an abstract view about the “good society?” (This assumes, of course, that the measure of votes is a valid construct – something that is always a big issue). To the extent that we have data about this phenomenon and are willing to rely upon it, however, the evidence shows that political direction is only a small component of Supreme Court decision making in civil liberties cases. And is appears to be getting weaker. How large it is can be debated, but present evidence puts it at around 12% to 24% of the votes cast when considering all Supreme Court justices who have ever voted in civil liberties cases over the last 60 years. (You could argue that this is not a small figure; I am only using the word “small” because, for years, political science suggested it was around 60% to 80%).
2. Reasonable disagreement. Under this view of attitudinalism, two justices, like two doctors, might have differences regarding the protocol to be applied to a given problem. One might use what we would call a “purposes and objectives approach,” which is essentially factoring the social utility of the policy into the decision. Another, however, might use what we call a more “formalistic” approach, saying, e.g., that the Constitution is only the reasonable referent of its text, regardless of whether the policy is beneficial. Paradigmatic disputes like these exist in all fields that are not “hard science” (and possibly some that are). If the subject was dietetics, for example, one might find a qualified expert recommending the food pyramid, another the zone diet and still another the Atkins protocol. Disagreement about which protocol to follow is essentially a function of a “faith” (attitude) in something that is not yet professionally resolved – perhaps we can call it a best educated guess. Because of this, the practitioner has no choice but to rely upon something outside of what is known in order to dispense the knowledge that is known to the trade or craft. Under this view, attitudinalism is merely reasonable disagreement.
3. Lack of a decision constituence.. This notion says that if one’s decisions lack a meaningful constituence (structure), the decisions are merely the product of “attitudes.” Here the concept means “no justification” or perhaps “sham justification.” It means that your decisions are sort of “willy nilly” or perpetually insincere. Justice O’Connor was said at times to vote in an ad hoc manner. This observation suggests that the bulk of her decisions do not consistently reside in the structure of syllogistic reasoning, core principles, comparison and contrast, a formulaic decision construct or anything remotely “analytical.” (Note: I do not make this assertion; others have). If someone hypothetically votes this way, we might say they vote according to boundless “attitudes.”
4. Simple Volition. This view says that something is “attitudinal” by definition if it involves anything other than the kind of mental constraint that one finds in algebra when solving for X. When one solves for X, it is according to rules that dictate the result independently of the problem-solver’s desire. The student who solves for X cannot change what the correct answer is. His or her desire in this respect is completely irrelevant. Hence, to the extent that any decision-making process – legal or otherwise – is NOT like this, it is “attitudinal.” You will note that this version of attitudinalism has become too vacuous to be remarkable. “Justice must make choices.” Is this headline even worth publicizing?
5. Problem Solving. This view of “attitudinalism” is linked to number 4, but it is nonetheless different. It says that when judges engage in problem solving that explicitly involves making choices about the desirability of alternatives, it is necessarily “attitudinal.” Hence, when one considers social utility, policy costs, transaction effects, workability of a rule, the effect of a decision on docket loads or prison populations – any kind of consequentialism – this involves “attitudes.” Hence, when Earl Warren decided in Brown II that it was wise to involve the local judiciary in the implementation of Brown I – or when one in a “prisoner’s dilemma” discovers that cooperation is prudent – this conclusion is the product of attitudes. Note that this is true even if the consequentialism is objective – say, a fair assessment of costs and benefits. Any kind of policy science, policy analysis, law and economics, pragmatism, etc., is “attitudinal.”
So what is the point here? The point is that political scientists who promote “attitudinalism” have an unrefined and vacuous theory that unfortunately hurts their research (and our discipline). Attitudinalism is a language game. You will note that according to viewpoint number 5, pragmatism is “attitudinalism.” But according to the reasonable-disagreement version (number 2), Dworkin promotes attitudinalism. Number 3 says that O’Connor is attitudinal. Number 1 says that Bush v. Gore is attitudinal. Number 4 says that virtually anything is attitudinal. I must ask: what can a justice do during his or her job that is not attitudinal? To what extent is this nothing other than a language assault rather than an analysis? Why is it that a word that blurs valid distinctions created by philosophers of jurisprudence is given so much license by so many in political science? Is it because the political scientists who call themselves “attitudinalists” are not sufficiently familiar with jurisprudence -- and, if so, how can an empirical discipline be excused from such neglect?
It is not my industry to make trouble. I seek only the removal of obstructions from the pursuit of knowledge. If we are to make any normative sense of the act of judging, we must know what philosophers have said and model these phenomena separately. Only then will we have a better hold upon what judging in supreme tribunals empirically consists of.