A Fresh Approach to the Politics of Law: How Constitutional Words Form a Cognitive Structure That Influences the Judicial Mind; an Examination of Key Areas of Civil Liberties Voting.

This paper has two purposes: (1) to create a new theory of meaning in language philosophy; and (2) to apply the theory to Supreme Court decision making in the area of selected civil liberties cases. Each part is discussed separately. This paper is novel for several reasons. First, it breaks new ground in analyzing the role that “law” plays on the U.S. Supreme Court. Prior research in political science frequently confines the operation of “law” to “framer intent” or “stare decisis.” This work, however, theorizes “law” to be broader concept: the effect that language has on the brain (“cognitive linguistics”). Language is theorized to have fluctuating clarity – i.e., to be relatively clear in some instances and relatively unclear in others (depending upon its wording). This phenomenon is called “rigidity.” Building upon the work of Steven Pinker, Ludwig Wittgenstein and Saul Kripke, this paper provides ground-breaking criteria for placing legal-rights claims in an ordinal level of rank, based upon how clearly the Constitution can be said to designate the claims. More than 151 cases comprising 165 issues that fit the rigidity criteria are selected for analysis. A series of logistic regressions estimated with maximum likelihood are performed to answer two questions: (1) does the effect that ideology has upon the Court fluctuate or remain constant when legal rights claims fluctuate in clarity; and (2) which justices are the “textualists,” and to what extent? The paper finds that political ideology is a relatively poor predictor of justices’ votes when law is most rigid, but is a robust predictor of votes when law is most vague or indeterminate. Additionally, the paper finds something quite revealing: only moderate and conservative justices are influenced by language rigidity (in Constitutional cases). This suggests that the decision to use a language construct as a decision constituence is a choice influenced by political values, but that, paradoxically, the use of a constituence itself operates to make the expression of values sub-optimal. That is, values may decide the orthodoxy, but the orthodoxy then makes the policy choice less optimal than otherwise. This view is consistent with how proponents of institutionalism or of “structuralism” view the Court; it is not consistent with either attitudinalism or rational-choice theory, where the latter means only pursuing self-interest in the long run. In short, both law and values structure judicial choice, meaning that values become compromised through a process other than games.

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The Effect of Ideology on Supreme Court Judging Over Time

Empirical scholars of the United States Supreme Court, Jeffrey Segal and Harold Spaeth have long contended that Supreme Court decisions are based primarily upon the ideological beliefs of the justices, and that ideology alone accounts for over 60% of the total voting variance on the Court. However, recent scholarship demonstrates that this conclusion is only made possible through ecological inference. In the bivariate regression that purported to establish their hallmark conclusions, Segal and Spaeth aggregated their voting data into percentages. The result was exaggerated findings. Recent scholarship has corrected Segal and Spaeth’s mistake by modeling justice votes using a logistic regression that does not manipulate the dependent variable before analysis is performed. The new findings demonstrate that Segal and Spaeth’s model loses about two-thirds of its explanatory value. Ideology, therefore, is not as dominant of a force upon the Court as attitudinal modelers previously thought. Still, however, it remains an important variable in the judging equation. It most certainly is a statistical predictor. However, this paper adds two important contributions to above findings: (1) the role that ideology plays upon the Court is not stable across time and appears to be trending downward; and (2) Segal Cover scores are a relatively poor explanation of voting behavior and at times are a complete failure. In so doing, the findings of this paper encourage political scientists to reconsider the way that they conceptualize the force of ideology in the judicial mind. To the extent that ideology is measured correctly by empirical researchers, it is a fluctuating rather that defining force upon the Court. That is, it is sometimes a significant and dominant presence in voting; at other times, it is marginalized and rendered less significant. Finally, if researchers wish to model ideology most effectively, all available empirical evidence suggests that Segal Cover scores should be abandoned in favor of career liberal ratings. Quite simply, these scores approximate judicial choice more meaningfully than any other set of ideological values currently available.

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Modeling Justice Ideology Without Ecological Inference

Empirical scholars of the United States Supreme Court, Jeffrey Segal and Harold Spaeth have long contended that Supreme Court decisions are based primarily upon the ideological beliefs of the justices, and that ideology alone accounts for over 60% of the total voting variance of the Court. However, recent scholarship demonstrates that this conclusion is only made possible through ecological inference. In the bivariate regression that purported to establish this hallmark conclusion, Segal and Spaeth aggregated their voting data into percentages. This resulted in exaggerated findings. Recent scholarship has corrected Segal and Spaeth’s mistake by modeling justice votes using a logistic regression that does not manipulate the dependent variable before analysis is performed. The new findings demonstrate that Segal and Spaeth’s model loses about two-thirds of its explanatory value. Ideology, therefore, is not as dominant of a force upon the Court as attitudinal modelers previously thought. Still, however, it remains an important variable in the judging equation. This paper explores various methodological issues that judicial politics scholars will confront when modeling justice ideology using logistic regression estimated with maximum likelihood. Topics covered include substantive interpretations of the model, the “correct” independent variable to be used, applications of the technique, and an empirical assessment of how well ideology models explain judicial choices made by the Court

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The Attitudinal Model, Political Science, Ecological Fallacy and Exaggeration

Empirical scholars of the United States Supreme Court, Jeffrey Segal and Harold Spaeth, have long contended that Supreme Court decisions are based primarily upon the ideological beliefs of the justices, and that ideology alone accounts for the bulk of choices made in civil liberties cases. However, this conclusion results from the misinterpretation of an ecological regression model. The researchers never modeled the votes of the justices; they only analyzed an index of grouped aggregates. When announcing conclusions, however, scholars equated variation in a voting index with the frequency distribution of binary observations that comprised it. As a result, model conclusions were exaggerated and disciplinary misinformation created. This work exposes and corrects this problem by re-estimating the relationship between justice ideology and votes with a multilevel approach that uses a logistic regression to directly examine the dependent variable prior to its manipulation into grouped data. The findings demonstrate that ideology models lose about two-thirds of the level of explanation researchers previously proclaimed. This new understanding supports a more limited critique of the role that ideology plays on the Court – one that has a long history in political science that predates the more value-dominant “attitudinal” framework. 

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Political Ideology as a Fluctuating Rather Than Defining Force Upon the Court: An Analysis of Discreet Areas of Civil Liberties Voting

Abstract: Scholars such as Segal and Spaeth contend that U.S. Supreme Court decisions are based primarily upon the ideological beliefs of the justices. However, recent scholarship demonstrates that this conclusion is exaggerated – measures of political ideology do not explain voting behavior as well as previously thought. This paper adds an important contribution to this finding: the role that ideology plays upon the Court is not stable. Rather, it fluctuates significantly across distinct issues of law. This is a significant finding because it demonstrates that judicial preference for resolving salient, political conflict is not governed by a stable ideological or attitudinal framework. To the contrary, the framework used by justices to resolve political conflict is significantly driven by ideology only in some areas of civil liberties cases, not in others. Stated another way, scholars should conceive of political ideology as a fluctuating rather than defining force upon the Court – it is sometimes high, sometimes low. Future works should further identify areas of significant fluctuation and should attempt to explain what causes value voting to dominate some areas, but not others.

• Conference paper: download Word version.