Growing Public Awareness and Concern About the “Attitudinal Model” of Supreme Court Votes

Posted on by

By Beverly Mann. Cross posted from Angry Bear

Scott Lemieux weighs in at The Week, writing that, although “Supreme Court voting is too complex to be explained by any single factor,” the “attitudinal model” – which posits that “Supreme Court votes are explained by what judges consider desirable policy” – “still contains a good deal of truth.”

– Amy Howe, SCOTUSblog, Friday Roundup, May 16 this morning

Lemieux’s article is a must-read–for his own excellent commentary and because it mentions recent articles and empirical studies that not only make the substantive point but also illustrate that we’ve reached, or are about to reach, the point at which, having broken through to the larger, general news media, it becomes a subject of discussion among, y’know, ordinary folk. The sort of people whose cert. petition, should they file one, the Court wouldn’t be caught dead actually considering granting.

Lemieux’s statement that “Supreme Court votes are explained by what judges consider desirable policy” is profoundly accurate. During the 1980s and ‘90s the justices were quite open about this, at least regarding access-to-federal-court issues. By which I mean that they engaged in wholesale fabrications of jurisdictional, quasi-jurisdictional, and “immunity” doctrines, and the rewriting of procedural statutes (the Federal Rules of Civil Procedure are statutes)–in an unremitting juggernaut to deny federal-court access to pretty much everyone who isn’t a corporation, a state (states are now people, just like corporations, except when someone wants to sue them), a public official or employee acting in the course of his or her employment, or a rightwing culture warrior.

The Roberts Court has continued this, in spades, except when a mega-corporation or a multi-millionaire represented by a $1,000/hr. Washington-based Supreme Court Specialist asks that they narrow the doctrine. There was a very, very recent (May 5), stunning exception to this hard-and-fast qualifications-to-have-your-cert.-petition-considered prerequisite list, in an opinion that I would consider the second-most-significant opinion of this term (McCutcheon v. FEC is the most important, in my opinion), except that I already know that the lower courts will ignore the opinion–simply pretend that it doesn’t exist–and get away with it. The Court, as currently constituted, won’t grant another cert. petition to enforce the two (equally important) rulings in that case, Tolan v. Cotton, unless a mega-corporation needs it–a highly unlikely event.

If you doubt that, please read the dissent in that case. It will be educational, I trust.

The Roberts Court’s contribution to the Court’s wholesale self-conferred policymaking role is to purport to justify their policymaking as mandated by the Constitution–by its structure, its history, its … whatever. Whatever, usually being some comment by one of its framers (almost always James Madison, the unwitting mascot of today’s far right), or a pre-Civil War Supreme Court opinion.

That the actual structure of the Constitution, as well as its explicit provisions, include, for example, a clear separation-of-powers bar to judicial-branch fabrication of jurisdictional and other procedural bars to access to federal court has, since the early 1980s mattered not one whit. So the Court no longer adds to the a veritable avalanche of fiats that the justices themselves justified in some instances as simply their idea of good policy. The fiats these days come clothed as alleged personal dictates of Madison or of Congress, notwithstanding the chasm between Madison’s (and other framers’) actual expressed beliefs–or Congress’s actual clear intent, as per the statute’s or procedural Rule’s words as those words are commonly understood (or were, at the time of enactment)–and the Court’s suspiciously rightwing interpretation of them. And now, finally, the general news media and the larger public are catching on.


Another terrific article about this is an op-ed by journalist Michael McGough in Thursday’s Los Angeles Times, in which he says he’s “struck by how the controversy over whether the Supreme Court justices have become more partisan in recent years parallels a phenomenon I discovered when writing about the Church of England: the ‘party bishop.’”

Relatedly, another terrific article in The Week, this one by Matt Bruenig, argues for term-limiting Supreme Court justices, and is subtitled “Lifetime appointments were meant to preserve judicial independence. But the high court has devolved into a political body with too much power.” That article is similar to one by law professor Eric Segall published at earlier this week, except that Bruenig’s article details some specific amendment proposals.

These are matters whose time finally may have come as issues worthy of serious attention, with real possibility for change.

Like this one.

Print Friendly, PDF & Email


  1. lolcar

    Does the French Supreme Court routinely ask itself “What would Naploeon think ?” The idea that you can go to the highest court in the land and seriously argue a case based on little more than what an 18th C Virginia planter is supposed to have meant by a certain word has always seemed bizarre to this non-American.

    1. inode_buddha

      I agree that it may seem bizarre. However it makes perfect sense to me as an American, because the interpretation of that one word will affect the interpretation of other laws, and thereby influence the lives of many. Fortunately we do have the ability to amend the Constitution, but it seems to require extreme circumstances in order to get enough people to agree together on it.

      1. lolcar

        Still not making sense to me. Deciding 21st century legal disputes based on what James Madison may or may not have meant by the words words “establishment”, “bear”, “unreasonable” etc. is nothing more than an exercise in sophistry. Under those conditions just about any ruling imaginable can be justified.

        1. Banger

          American jurisprudence is based on the idea that the letter of the law is supreme not the final result of a ruling. American courts have, at times, denied the reversal of a conviction of an innocent person for various procedural reasons. An American judge, like an American doctor will tend to ignore the person or situation in front of them due to printed words before him or her. Similarly, there is a tendency in the U.S. for religious leaders to live by the printed page of a book rather than the direct experience of holy men or women.

          Why is this? Early America needed firm boundaries and a vigorous law profession insured that–the foundation of America is not George Washington or Benjamin Franklin or Mr. Jefferson but the law profession.

          1. lolcar

            The constitution as holy writ ! In theory, it sounds wonderful to have natural and inalienable rights enumerated by the founders and untouchable by government decree. Nonetheless logic-chopping Supreme Court judges are free to make a mockery of the average English-speakers understanding of the phrases “speedy trial”, “unreasonable search”, “free speech” etc.

            1. Banger

              Indeed, that is the problem. But it exists because of the general corruption of society and its institutions.

            2. ChrisPacific

              That’s more accurate than you may realize. Any time an American talks about the Constitution, they get a faraway look in their eyes and elevate their gaze and you can practically hear “America the Beautiful” playing in the background. Usually when they are explaining something like why it’s only right, proper and natural that the guy with the fewest votes should be the winner of the Presidential election.

          2. MaroonBulldog

            Mr. Jefferson was an able practitioner of the law profession, though he did not attend the constitutional convention.

        2. diptherio

          “Under those conditions just about any ruling imaginable can be justified.”

          Sounds like you understand just fine, to me.

          1. craazyboy

            Scotus making interpretations for the 21st century (or 20th, too) of course is necessary and could be a good thing. But the problem comes in when most of the interpretation gets skewed in the same mysterious directions, like say the 2nd Amendment is upheld and the legal opinion is written that “musketballs are only lethal at the margin”, or something about corporations are people that can’t be sued and are the best source of campaign contributions and legal opinion, all phones calls are conference calls with the NSA, …etc…

        3. jrs

          It may be bizarre (it’s at best a way to suss out basic principles that should guide laws, maybe better principles should have been the basis for laws but … the bill of rights is far from the worst thing you could start with).

          But actually more to the point: NO I don’t think it CAN justify ANY ruling. It CAN NOT for instance justify things like failing to hear Chris Hedges NDAA case. That kind of stuff you can ONLY really justify with corruption or blinkered ideology or both.

        4. hunkerdown

          Notice how the American answer completely failed to entertain the possibility that the system is something that can or should be changed? Holy writ is right.

          1. MaroonBulldog

            The Constitution has been amended 27 times, including one Amendment (19) that repealed another one (17). So the system contemplates its own change. If enough people come to believe that change is too hard under current provisions, the Constitution could even be amended to make the amendment process easier.

      2. run75441

        “interpretation of that one word will affect the interpretation of other laws”

        You hit upon much of the issue, interpretation. Laws are not ironclad rules and are open to interpretation by different courts. When courts disagree, it is then SCOTUS will decide on an interpretation. The Roberts/Kennedy court has been rewriting many past interpretations. As Beverly has explained, the interpretations appears to be following a trend of setting policy which will have impact for decades to come.

        1. Justicia

          Nail on head, run75441. It’s all about interpretation. “There are no facts, only interpretation.” S.Sontag

          We have a common law system of “judge made law” by virtue of the fact that judges interpret what the law supposedly means in a given set of circumstances, often giving novel(!) turns to old texts — like Scalia’s re-invention of the 2nd Amendment. If he were an honest man, Scalia and his cohort would acknowledge that they are radical judicial activists ready to kick over settled law and fit the fact to their Procrustean bed.

          See: The Roberts Court and Judicial Overreach

    2. run75441


      The Constitution is meant to be a living document and open to interpretation.

      “you can go to the highest court.” SCOTUS accepts ~85 cases a year, it is inconceivable that you as an average citizen would have access to it unless you had some high profile attorney such as Clements representing you. The court trend has been moneyed interests talk and the rest of us walk. The days of when a person such as Clarence Gideon penciling an appeal to SCOTUS past into history along with that famous case asserting the right to legal representation. Yet today, many states such as Michigan still deny the right to legal representation by underfunding public defenders or over burdening them

      1. Carla

        “Yet today, many states such as Michigan still deny the right to legal representation by underfunding public defenders or over burdening them”

        Perhaps it would be easier to list the states that treat public defenders fairly in terms of work load and pay. Does anyone know of any such state? Ohio is not one.

      2. MaroonBulldog

        Supreme Court justices send signals concerning the issues they are interested in resolving, and the Supreme Court bar obligingly flles petitions for review of their clients’ cases that present those particular issues. If there are four justices interested in grantiing a petition, it gets granted; otherwise, not. Since petitions for review are always asking for a reversal of what was decided below, we might expect that when a petition is granted, in means there are four justices interested in overturning what was decided to below. After all, what sense would it make to vote to grant a petition to review a result you agreed, and expose it to reversal by a majority you didn’t agree with?
        Gideon v. Wainright is not an example to show that it was ever any different. Clarence Gideon was just lucky–he happened to file a handwritten prisoner’s petition asking for review of an issue that the court was independently interested in taking up.

        1. run75441

          Nonsense. Having filed and spending an inordinate amount of money doing so, I can safely tell you the issue was worthy of a review as there were conflicting court decisions across the various Appeals Districts. This was done with a well known attorney who has testified in front of Congress on the worthiness of various Scotus justices.

          Gideon was a perfect example of a common citizen who was able to file without attorney’s aid. Try doing that today Maroon and see how far you get.

  2. Ben Johannson

    This isn’t a problem that will be easily remedied. Narrowing of opinion in the two parties has influenced hardening of judges’ opinions, who reinforce the ideological drift of the parties, which nominate judges reflecting that drift, who reinforce . . . etc. Humans are too easily influenced by the dynamics at work in large groups.

    1. Jim Haygood

      Narrowing of opinion in the two parties has influenced hardening of judges’ opinions.

      Nine Depublicrats against the nation, as it were. Nominating only partisan hacks from the ruling duopoly ensures ‘self-conferred policy making’ from this failed institution.

      Not mentioned above, but equally important, is the court’s degeneration into a rubber stamp for the headlong expansion of the national security state. Years ago the video rental history of Supreme Court nominee Robert Bork became public. An outraged Congress passed the Video Privacy Protection Act. Now video rental stores are gone, and the NSA just directly monitors our internet feeds (including those of KongressKlowns and ‘Justices’ — as they are well aware).

      And it’s ‘all legal,’ according to the nine shriveled old scorpions. They are irrelevant, because they made themselves irrelevant with their partisan contempt for the now-dead constitution. I’d like to lease their marble-pillared temple to open an exclusive whorehouse, with some punchy projection lighting at night. We cater to the stars …

  3. Skeptic

    Forgetting political or ideological considerations for the moment, there are numerous logic gates for every case before any court. The more logic gates, the more likely the action of the court will be wrong. At each logic gate, each Judge can rummage around through the law, mostly case law. There they will usually find numerous cases justifying one position or the other. At the Federal level, this “law” may even be contradictory since it may be different in each Circuit. Thus, a Federal case you might win in CA, you will lose in MA.

    Recently, there was a methodical, scientific study done demonstrating that our society is an Oligarchy not a Democracy:

    Possibly some organization might take on the task of a logic gate analysis of “justice” to see whether that is what is actually provides. I think if Science was applied to an analysis of Justice it would be proven to be extremely deficient or maybe even non-existent like our “democracy”.

    (And here is a nice example of legal wrinkle:

    “The Fourteenth Amendment provides that American citizens are also citizens “of the state wherein they reside,” but U.S. citizenship does not necessitate residence in a particular state.
    Persons living abroad, for example, are citizens of the United States but not of any state.
    One significant legal disadvantage exists for a person who is not a citizen of a state. The Constitution provides that federal courts can hear “Controversies … between Citizens of different States.” …A person who is not a resident of a state or designated area, even if he or she is a U.S. citizen, cannot satisfy the diversity of citizenship requirement and therefore cannot bring an action under the Diversity Clause in a federal court.”

    So, if you are not a citizen of a State your federal legal rights are diminished. Very important to know if you get in a legal beef with someone in a corrupt State court. )

    1. Banger

      I like your reference to logic gates. U.S. law depends not on any philosophical or moral sense of Justice but on texts. People and their real problems do not exist in American jurisprudence only words and their definitions for which courts variously interpret in highly scholastic manner. Many cruel and nasty human beings hide behind words to further their perverse view of life–Justice Scalia is the most notable of this type.

    2. Sleeper


      Let’s think about this – Since your federal legal rights are diminished if one is not a citizen of a state does it follow that US protectorates i.e. Guam, U.S Virgin Islands and so on do not offer federal legal rights ? We might include Washington D.C as it is not a state. Or even some of the commonwealths – Virginia for example.
      That said it would appear that since the legal rights spring from the constitution that some folks could operate with impunity in non state areas. End of Habeas Corpus any one ?

    3. Sleeper

      If we are to take this to a logical conclusion U.S citizens of the far flung territories and protectorates have their federal legal rights diminished – So folks in Guam, the Marshals, Porto Rico, and Washington D.C. are less well protected ?
      And not to mention those citizens that reside in the proud common wealth’s such as Virginia.
      So can we expect that simple rights such as habeas corpus are no longer of any value ?
      Summary executions anyone ?

    4. Oregoncharles

      I had the impression that expats remain citizens of the last State they resided in – retaining, for instance, the ability to vote there. This might not be so for the particular application you bring up, of course.

        1. downunderer

          As far as this native-born expat can determine, I have no right to vote in the US, even in Washington, my last state of residence there (where I both voted and held an elective office during many years of residency).

          I used an absentee ballot for some time, then noticed that to qualify I needed to have the intention to return to Washington. Not being able to honestly sign my name to this qualification, I stopped voting.

    5. MaroonBulldog

      Before the Fourteenth Amendment was adopted, there was no federal law establishing citizenship. Each state had its own laws concerning state citizenship; federal citizenship derived from state citizenship.
      The Fourteenth Amendment changed that by federalizing the law of citizenship, in particular, to make clear that freed former slaves were federal citizens. It also made another change by forcing states to accept them as state citizens as well. The citizenship clause and the equal protection clause were designed to protect the freed former slaves from threatened state actions to make the outlaws if they didn’t leave the states were they were living.

      1. run75441

        The 14th Amendment certainly helped those slaves who practiced citizenship until the Colfax Massacre April 13, 1873.

  4. Expat

    The failure of the Supreme Court — the Klan in Black — rests at the feet of the legal profession. Law schools are still teaching law on the nineteenth century model even though modern judges are poorly equipped in the mental sense to deal with precedent. Even if they were selected for their ability rather than their adherence to ideology, the profusion of written and fashionably unwritten case law would be daunting.

    A new model is needed to ensure accountability and democratic oversight. Yet. as Ian Welsch notes in a recent Naked Capitalism column (, too many people — lawyers in this instance — are wedded to the evil gravy train and would rather feather their own nests than do what they know is right.

  5. Banger

    There are advantages and disadvantages to the American system of jurisprudence. It has worked rather well over time. It’s tendency to ignore the actual situation and persons involved in a dispute and emphasis on the letter of the law has kept some cultural prejudice out of the mix. But as precedents have multiplied and the political system has increasingly resorted to the courts to make political decisions a rot has set in. But the rot has set into ALL areas of U.S. life and nearly all political and cultural institutions. We are at the end of an era and the beginning of a new one for better or worse.

  6. James Levy

    I would posit a variant of Banger’s thesis: the issue is cultural. We cannot speak the truth. It is obvious to anyone with eyes to see and ears to hear that the Supreme Court today is an adjunct of the Republican Right. But we must all pretend that it is an institution devoted to an honest and impartial dispensation of law. And the media and the academics are the worst. Ordinary people know that the Supremes are going, 9 times out of 10, to vote the way the men who put them there want them to vote. The academics and media will point to the 1 time and insist that that vote disproves your thesis (fuck the 9) and that Souter was unreliable and that you mean, nasty person who said that about our hallowed Supreme Court are just Wrong, Wrong, Wrong and you should shut up and go away.

    The default excuse is an appeal to the rubes that these men and women on the Surpeme Court are PRINCIPLED. The reason we get these results are that we are dealing with principled men and women with a consistent philosophy. This could be disproven in 5 minutes by showing that the principles are party politics and incoherent ideological stances that don’t go together in any principled way, but again such an investigation cannot be made because the pretense of objective “equal justice under law” must be maintained. Here I’m more pissed off with scholars than anybody, because they have an obligation to the facts. The only way I can be generous to them is that Law School does not prepare them for actually determining facts (hey, that’s a jury’s job!), only playing scholastic games that would have made St. Bernhard’s head spin. My gut instinct is that they don’t want to be ostracized, declared “radical”, and lose any chance of ever being made judge themselves.

    1. hunkerdown

      Just the Republican right? Seems the Democratic right has quite a bit of play in there too.

      See? There *is* a cultural issue here. There are very specific dramas that the “American” is obliged to act out as a cultural matter, and kiddy-fiddler Horatio Alger wrote several variations on the being taken under the wing of an aristocrat story. Also, being seen suffering to justify one’s daily bread, the subordination of personal boundaries to group leadership, allegiance and deference to authority, and competition and struggling and hassle in general. You know, basically an endless succession of stylized half-hour dramas dripping with commercial messaging.

      No, life is definitely imitating art, here.

    2. MaroonBulldog

      Benjamin Franklin said the constitutional convention gave “a republic, if you can keep it.” That “you” means “we” and not our federal judges. If we don’t elect presidents and senators who are committed to keeping our constitutional republic, then we can’t expect the judges they appoint to keep it for us, either.

  7. Kurt Sperry

    It seems to me the problem isn’t the political bias of the court institutionally, but the overtly reactionary, batshit crazy right wing bias of its controlling majority. I’d love to see a brazenly left wing court make the same sorts of ad hoc political decisions masquerading as judicial independence. When mass dragnet surveillance of the citizens is deemed constitutional, obviously the Bill of Rights and thus the whole document is already a completely dead thing. There is no longer even any plausible pretense remaining that the Constitution, as a constraint on either governmental or corporate power, remains in force.

  8. MaroonBulldog

    Justice Brennan taught his clerks the most important rule of constitutional law: it takes five votes to get anything done at the Supreme Court. The second most important rule might be: it takes four votes to get the court to take your case. Isn’t it only reasonable to expect that decisions made by voting will turn to be in, well, political?

    1. James Levy

      No, they need not be. If I were a Supreme Court Justice and I had Bush v. Gore in front of me, I would have done what the Constitution obviously wants to happen–thrown a disputed election to the House. As a left-winger I would have to admit that at that very moment, the chances were that if it did go to the House, Bush would have won. But that would have been my decision because that’s what the document clearly maintains. It’s not a “well regulated militia” kind of thing. All we need ask of judges is honesty and consistency. What we get is political bullshit. But that is a function of the men, not the position.

      1. MaroonBulldog

        I’m not trying to defend decisions like Bush v. Gore by pointing out that it would have taken four other votes, plus your own, for you to have thrown the election to the House of Representatives. It’s one thing to imagine what you’d have done; it’s another thing to imagine yourself persuading four other human beings with different motives and convictions from your own to go along with you in the face of powerful pressures and temptations to do otherwise.
        Of course we both know that Bush v. Gore was hardly the first constitutionally questionable if not egregious decision to come down from the Supreme Court. I’m sure you’d have courageously voted against detention in Korematsu, to name one terrible decision. I’d like to imagine I would have, too, if I were a justice. Yet we have Justice Scalia telling us that if a detention case similar to Koremetsu came up again in similar wartime circumstances, he’d imagine a majority of justices to uphold detention again: of course, he wouldn’t vote that way himself. He’s just saying what others would do.
        We can only expect human beings to do what we can reasonably expect human beings do. Experience of what they actual human beings have done in the past should guide our expectations concerning what human beings can be expected to do in the future.

        1. Nathanael

          Bush v. Gore is actually worse than any other Supreme Court decision before or afterwards.

          The Supreme Court had no legal right to take the case at all, for one thing. For another, the ruling was internally incoherent and made no sense. For another, they actually stole an election.

          The correct reaction to Bush v. Gore would have been to have the 5 traitors on the court at the time shot for treason: waging war against the United States. There were plenty of witnesses.

          Unfortunately, Clinton didn’t recognize that there was a coup in progress.

  9. sd

    Excepting in rare instances, when it comes to the law, he with the most money, wins. Please note use of the pronoun, he.

  10. Nathanael

    Scalia and Alito are not judges. They are traitors who are occupying the bench.

    Impeachment is appropriate. Unfortunately, James Madison screwed up when writing the impeachment clause, and it’s practically impossible to impeach anyone, even if they eat live babies on television. You just can’t get 2/3 in the Senate for *anything*.

    Eventually, it is likely that the next step will have to be to start disregarding their rulings: the executive branch should simply declare that Scalia and Alito have abdicated their positions by bad behavior (judges serve on good behavior, remember) and refuse to enforce any rulings by them. Also refuse to pay them.

    Sound radical? Well, it is. But a corrupt and biased unelected judiciary is not tolerable.

Comments are closed.