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Section B, #7
The three models used to evaluate, and even predict (or attempt to predict) judicial
decision making are: the Legal Model, the Ideological (or Attitudinal Model), and the Strategic
(Sophisticated voting) Model. They are used in essence, to determine the degree of influence
political factors have on Supreme Court Justice Decision making. There is evidence to support
each model; however the strongest evidence supports the strategic model. I will discuss each
model in detail, and then evaluate the models in action and each stage during the hearing of a
case, showing the importance of the Strategic model at each one, as well as how the strategic
model is used in addition to the legal and ideological model at these points.
In The Supreme Court and The Attitudinal Model Revisited (2002), authors Jeffrey A.
Segal and Harold J. Spaeth explain the features of the legal model in great detail. They establish
the importance of Constitutional interpretations, citing “framers’ intent” as a consideration that
many justices cite in their opinions. This implies that justices not only look at what the
Constitution says on an issue, but also at what that meant at the time from the framers’
perspectives. Segal and Spaeth also explain the importance of precedence in deciding cases.
Precedence, or relying on a previous court’s interpretation of law, is inarguably the most
legalistic way of deciding a case. The only instance in which Stare Decisis, or the practice or
relying on precedent, would not be profoundly important would be a case in which no case had
been heard yet, and no precedent had been set.
George and Epstein (1992) also discuss the idea of legal decision making. In their
writing, they express the opinion that the Legal Model is the model that should be used—the
model that best represents the way that most people would expect of would like the Supreme

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Court to make decisions. It also leads to the understanding that the legal model is the most basic
and theoretical in its explanation of decision making.
Adherence to previous cases would certainly demonstrate that the Supreme Court placed
a very high value on legal factors in decision making. As the justices on the Supreme Court have
been charged with upholding the Constitution, it would be logical to assume that the Legal
Model holds a great deal of importance and influence, however, an assumption of that nature
would disregard the fact that other influences hold power in the decision-making process as well.
Knight and Epstein (1996) state in their article “The Norm of Stare Decisis,” precedence
is very important to consider, but difficult to measure. In fact, these authors discuss the idea that
for the other models (the Ideological Model and Strategic Model), the data provided relies
heavily on how the justice voted in order to establish which model was most prevalent, whereas
in order to determine the influence of precedent, the research would need to focus on other
aspects, such as appeals made in the name of the precedent or to the Constitution directly, either
by a justice or by an attorney. Their results show that attorneys often do cite precedent when
making appeals to the Supreme Court during Oral Arguments, and yet cases exist in which the
Supreme Court has decided in opposition of these cases. This violates normative ideals, but is it
wrong? One argument made by George and Epstein (1992) shows that if precedent were truly
constraining, laws would not adapt to new times. The most important question that one must ask
is “Why does this occur?” It can be answered using the other two models.
If it is true that justices “subscribe to the legal model…for public consumption” (Segal
and Spaeth 2002, 48), then they must be considering what George and Epstein (1996) referred to
as “extralegal” factors. The most obvious extralegal factor is ideology. Wahlbeck, Spriggs and

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Maltzman (1999) find that justices do, in fact, consider ideology when making decisions. They
state that justices are “rational actors who pursue their policy goals within constraints (1999,
507). In “Representative Decision Making on the Federal Bench: Clinton’s District Court
Appointees,” Jennifer Segal explains the Ideological, or Attitudinal, Model, stating that attitudes,
which are created from background characteristics, influence decisions. Whether or not the use
of this model can be used to fully explain all decisions made is debatable, but in “Passing and
Strategic Voting on the U.S. Supreme Court (2005),” authors Timothy Johnson, James F.
Spriggs, II and Paul J. Wahlbeck find in the results from their data that the Chief Justice will
normally assign the duty of authoring an opinion to one of his or her ideological allies. This
shows that even the Chief Justice is not free from extralegal influences.
If political factors are important, but legal factors are also important for justices, the
question as to how justices decide cases is still unsolved. The third, and most explanatory model
of judicial decision making is the Strategic Model. The strategic model is less concrete than the
Legal model, which holds that justices vote according to their interpretation of the Constitution,
as well as any established precedent, and the Ideological Model, which establishes that justices
vote according to their ideological beliefs. The strategic model uses features from each of the
other two models (in varying degrees), and also often takes into consideration any institutional
factors (such as the manner in which voting takes place, etc.). Johnson, Spriggs and Wahlbeck
(2005) explain that Strategic voting can only take place in situations in which a justice has full
knowledge of his or her colleagues’ preferences. That also means that justices must be strategic
in learning what these preferences are. Perhaps they will use previous voting records to base
their understanding of their colleagues’ preferences. Regardless of how they come too their
conclusions, strategic behavior is clearly at the heart of justice decisions.

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There are many explanations for what strategic decision making is and why it might
occur. According to Caldeira, Wright and Zorn(1999) , a strategic vote is seen when a justice
would prefer to vote for one choice, but for some reason votes for another. Wahlbeck, Spriggs
and Maltzman (1999) offer reasons that this change might occur. One is that within the court,
there is an emphasized importance placed on unanimity. According to the authors, a decision
with separate opinions is viewed as weak, an in turn, weakens the Supreme Court as an
institution. Along these same lines, the authors establish that if a justice disagrees with the
opinion author, he or she will be more likely to abstain from authoring a separate opinion if the
author had voted in the past with the individual justice. The use of reciprocity in voting is also
very strategic.
The use of these three models is apparent at different points during the process of
hearing and deciding on a case. The first stage of a case is agenda setting. In this stage the
Supreme Court will take a vote of Certiorari to determine whether or not it will hear a case. This
vote could be based on legal factors (for example, does the Supreme Court need to make a
statement about an issue due to disagreements at lower levels?) This might also coincide with
the level of salience that a case has, which greatly influences Cert Votes. The other reasons to
hear a case are written in the U.S. Constitution’s Rule 10, which mentions that the Supreme
Court should hear a case if the Justices feel that a mistake had been made by another court.
On the other hand, justices might decide to hear a case based on ideological ideals as
well, although the “Rule of Four”, or the rule that establishes that four justices must vote to hear
a case in order for it to appear on the agenda, makes the use of solely political factors unlikely, as
justices on both sides of an issue may vote in favor of hearing a case. The most appropriate
model to evaluate agenda setting is the Strategic Model. According to Ryan J. Owens in “The

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Separation of Powers and Supreme Court Agenda Setting (2010)”, political factors alone cannot
explain Cert votes because even at this point, political factors cannot dominate choices of
justices. This is due to the fact, Owens explains, that the justices must consider the ideologies of
both the President and Congress. Congress has the power to overturn Court decisions, and the
President, who enacts laws, may choose simply to ignore rulings by the Supreme Court. For that
reason, even though no decision is being made on the case, the opinion of these institutions (and
likely the majority opinion of the voting public) must be considered.
The next stage in the process is Oral Arguments. Briefs are submitted by both
parties involved in a case, and oral arguments are heard by the Court. Oral arguments are
important not only because they allow justices to gain a better understanding of the facts of a
case and of the attitudes of their fellow justices, but also because the Oral Arguments stage takes
place in the form of a public hearing. Therefore the justices must consider public reaction to any
apparent biases in their questioning. The legal model plays a major role in this process due to
the fact, as mentioned before, that Knight and Epstien (1996) discuss the influence of legal
precedent in attorneys’ statements made during oral arguments. Justices will make the same
appeals in their questioning during oral arguments. George and Epstein (1992) state that “rules
of law are ‘typically available to support either side.’” Appeals to law are important in this phase
primarily because the records from these hearings are public. But if George and Epstein’s theory
is assumed to be accurate, the legal model is not the primary model in place. The justices must
depend on strategy when deciding how to utilize precedent and Constitutional law in order to
achieve their desired policy goals. The ideological model is not prominent in this phase. It can
be seen in the types of questions that the justices ask the attorneys and each other.

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Conference voting and Opinion assignment are the next phases in the process of a case.
As shown earlier, authors Johnson, Spriggs and Wahlbeck (2005) show ideological ideals at play
during these phases in the way that the Chief Justice goes about assigning opinion authorship.
The Legal model is not as prevalent during this time, but rather institutional norms and rules
control the process. The Chief justice does not only act on ideological grounds during
conference voting and opinion assignment, however. Johnson, Spriggs, and Wahlbeck show that
the Chief justice might vote strategically against his preferred choice in order to assign the
majority opinion to a colleague with similar ideas about the case. While the preferred choice
would have left the Chief Justice with the minority, and ability to assign majority opinion allows
for more power and control over the process and over the policy inferences of the case. Once the
opinions are drafted, justices consider their ideological ideals, as well as institutional norms, such
as unanimity, in deciding whether to sign on to or author and opinion.
Once they have done so, the decision of the Court is announced and the precedent is set.
While hearing cases is not the only time that justices might act strategically. When deciding
whether or not (or simply when) to retire, justices, according to Zorn and Van Winkle (2000),
they take into account the political environment in which their replacement would be chosen. Of
course, the decision to retire is not purely based on politics. The authors also consider age and
health factors in their research. Their results show, with these considerations accounted for, that
the political implications are very influential in their decisions. Similarly, Nelsen and Ringsmuth
(2009) discuss the concept of job satisfaction. Job satisfaction is based off of the number of
dissenting opinions, which determines where the justice lies within the ideological makeup of the
Court. If they are out of line with their colleagues, their number of dissents will be high, and job
satisfaction will be low. Their results show, contrary to what one might assume, that as the

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ideological distance from Senate increases, the likelihood that a justice retires decreases. This
shows that despite low levels of job satisfaction, a justice will remain on the Court until a
friendly Senate has been elected and they are more likely to be replaced by someone
ideologically similar to themselves.
The decision making models of judicial behavior take into account many factors, but
largely ignore institutional influences and boundaries. Although institutional norms are
addressed within the literature on decision making, their influence is largely underrepresented.
The Supreme Court maintains a high level of approval from the masses relative to the other
branches of government, and justices must vote with the validity of the institution in mind. It
could be argued that the strategic model, which is seen to be the best explanatory model,
incorporates some of these, in that justices must act strategically to enact their preferred
ideologies despite institutional barriers, but in actuality, these barriers shape the actions and
decisions of the justices more so than the legal, ideological or strategic models do. Therefore,
future research in the area of judicial decision making needs to focus less on the extent of
ideological influence in the court, and more on the ways that the design of the Court prevents
these influences.