The Attitudinal Model and Fluidity Voting on the United States Supreme Court

Abstract

The attitudinal model, as applied to the United States Supreme Court, posits that voting by a justice on the Court is determined by his or her policy attitudes and by the location along the policy dimension of the stimulus provided by the case. Howard (1968) maintained that there was extensive fluidity in voting between the original vote on the merits and the final vote, that such fluidity deflated the ideological voting and that, as a consequence, the final vote, used in the attitudinal model, is an unreliable indicator of judicial attitudes. We question whether there is extensive fluidity in voting on the Court and argue that the fluidity in voting that takes place usually moves in the expected ideological direction. Nevertheless, Howard's general argument that the attitudinal model does not capture the reality of Supreme Court decision-making seems to be valid. For not all fluidity votes move in the expected direction and the most frequent type, i.e. the minority-majority votes, is also driven by small-group variables.