Jurisprudential Regimes in Supreme Court Decision Making

Abstract

political attitudes. Jurisprudential regimes identify relevant case factors and/or set the level of scrutiny or balancing the justices will use. These jurisprudential regimes have the potential to make a significant difference in the decisions of the justices. We identify a candidate jurisprudential regime, content-neutrality, which appears to govern the general area of free expression law. The Court applies the strictest standard of review to regulations of expression that target the content or viewpoint of expression. Relying on a series of statistical tests using logistic regression, we find that the justices take seriously this jurisprudential regime. oes law influence the justices of the U.S. Supreme Court as they decide cases? Some leading scholars of the Supreme Court assert that law makes little difference. According to the most extreme version of this position, justices largely follow their personal ideological preferences-a view that the Supreme Court itself did much to enhance in Bush v. Gore (2000). If this is true, then the Supreme Court differs from a small legislative body only in the selection and tenure of its members, its technical rules of procedure, and its inability, at least formally, to initiate issues to consider. Whether or not courts generally, and the Supreme Court specifically, differ from legislative bodies has major implications for how we think about the role of courts and analyze their processes and outputs. We contend that courts, including the Supreme Court, are different, and that part of this difference is the role of law in decision making. In this article, we describe and test a new approach to incorporating law into statistical models of Supreme Court decision making. At the same time, we do not reject the importance, or even the dominance, of attitudinal influences on the Court's decisions. However, we argue that one must move beyond the images of the role of law as a mechanistic, autonomous force to arrive at a legal model that is relevant at the Supreme Court level. Segal and Spaeth (1993, 1994; Spaeth and Segal 1999), the leading proponents of the attitudinal model of Supreme Court decision making, argue that justices of the Court are free to decide cases solely in line with their policy (attitudinal) preferences and almost always do so decide. According to this interpretation the justices' freedom to pursue their own policy goals is due to their specific institutional situation: They possess life tenure, sit at the pinnacle of the judicial hierarchy, seldom have ambition for higher office, choose which cases they will decide, and have little fear of being overturned by the elected branches of government, particularly in constitutional interpretation cases (Spaeth and Segal 1999). We do not dispute that the Supreme Court's institutional setting frees justices from the kinds of constraints that are faced by lower court judges, elected officeholders, or appointees serving either fixed terms of office or at the pleasure of some other officeholder. However, freedom from review or electoral accountability does not prevent the justices themselves from erecting other constraints that shape