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The Failure of Instrumentalism: An Analysis of Votes by Conservative Justices on the U.S. Supreme Court in the Area of Core Political Speech.

[my first paper following graduate school. It was a chapter in my dissertation]

Abstract: Scholars such as Segal and Spaeth contend that U.S. Supreme Court decisions are based primarily upon the ideological beliefs of the justices. The reason for this, they say, is that legal text is inherently indeterminate and that justices merely rationalize the legal outcomes they desire (referred to as “motivated reasoning.”) “Law,” therefore, does not constrain a justice when voting on the merits. In this work, I show that conservative justices do, in fact, defect significantly from political ideology in First Amendment cases involving “core” political speech. For this cherished American right, political attitudes as they are measured by empirical researchers do not dominate voting behavior. The reason for this, I contend, is that the a priori foundation of the attitudinal model is suspect. That is, there are occasions when justices regard legal text as sufficiently clear and when “principle” is more important than policy preference. When this happens, justices shun strictly ideological voting. Future works should identify other meaningful areas of Supreme Court decision making that are poorly explained by an ideological model.

. (Conference paper: download Word version).

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