Variable Voting Behavior on the Supreme Court: A Preliminary Analysis and Research Framework

Abstract

doing, the Court struck down the 1986 precedent of Bowers v. Hardwick.2 Writing for the Court, Justice Kennedy explained, "The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command."3 Five justices supported overruling Bowers (Breyer, Ginsburg, Kennedy, Souter, and Stevens). Three justices, in dissent, argued that Bowers should remain good law (Rehnquist, Scalia, and Thomas). The lone concurrer, Justice O'Connor, agreed with the judgment of the Court (that the Texas statute was unconsti tutional), but disagreed with the overruling of Bowers. All of the justices' opinions spoke to the need for stability in the law, a concept not lost on academics and practitioners. Both attitudinal (e.g., Segal and Spaeth, 1993, 2002) and legal (e.g., Dworkin, 1978) approaches to Supreme Court decision making assume that the justices' voting behavior is rational and stable.4 This is perhaps no more evident than in studies of the justices' voting behavior in precedent-setting and precedent-overruling cases (e.g., Brenner and Spaeth, 1995; Segal and Spaeth, 1996; Spaeth and Segal, 1999).5 From the attitudinal perspective, justices are assumed to reveal their preferences in precedent-set