Does the Attitudinal Model of Supreme Court Decision Making Depend on Litigation Choices? Applying the Priest-Klein Selection Hypothesis to Litigation in the High Court

Abstract

In political science the well-known “Attitudinal Model” of legal decision making dictates that judges’ sincere policy preferences drive legal outcomes. In contrast, the celebrated “Selection Hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose to settle cases in which legal outcomes can be readily predicted in the name of efficiency. Thus, judges end up adjudicating a non-random set of cases which, in the typical situation, should not lend themselves to ideological decision making. From this perspective, the influence of Supreme Court justices’ ideological preferences on outcomes should be obviated by the forward thinking decisions of mindful litigants. We are left with two dominant theories on jurisprudential outcomes that appear to be at odds with each other. We endeavor to address this situation by incorporating litigant selection effect considerations into a basic attitudinal account of Supreme Court justice decision making. Our primary thesis that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions by litigants that precede the justices’ case decisions on merits. We also extend our assessment of this thesis by evaluating our basic model on a subset of cases involving the Court’s most formidable litigator – the federal government.