Supreme Court Decision Making: An Individual-Level Analysis of the Establishment Clause Cases During the Burger and Rehnquist Court Years

Abstract

In the first Establishment Clause case decided by the Burger Court, the U.S. Supreme Court laid down a new constitutional test. With this addition, the Court now had in place the third prong of a three-part Establishment Clause test. However, this three-part test has not settled what is allowable in church-state relations for many scholars. In fact, it is often complained that constitutional law in this area is confused and conflicting. This study attempts to show that the votes of the justices are not as uncertain or unpredictable as previously has been claimed. It also endeavors to contribute to explaining Supreme Court decision making in general. A fact-attitudinal model is derived from judicial behavior theory, cognitive-cybernetic decision-making theory, and the writings of the justices themselves. The results suggest that the model has explanatory as well as predictive value during both the Burger and early Rehnquist Court years.