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.

Abstract: 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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