Tuesday, July 03, 2007

Ted Olson, the Attitudinal Model, and Me

During our Talk of the Nation segment yesterday, Ted Olson repeatedly returned to the theme that the labels "liberal" and "conservative" over-simplify the various positions taken by the various Justices on various issues, a point with which I agree. Indeed, if you listen to the full show, you'll hear that I actually made this very point in response to the first question I was asked, even though Olson then proceeded to "disagree" with my supposed claim that such labels are fully accurate (although he otherwise agreed with most of my analysis).

Nonetheless, Olson turns out to be right that we disagree about the accuracy of the terms liberal and conservative. We disagree about the degree to which political labels over-simplify. Olson said that the Court's decision in FEC v. Wisconsin Right to Life, Inc. could be characterized as liberal because it upheld a free speech claim, even though the 5 most conservative Justices were in the majority and the four most liberal Justices were in dissent. There is something to this point: The issue of campaign finance reform tends to scramble political alliances, or at least tends to scramble politics on the liberal/left. The ACLU, the unions, and some NGOs that engage in considerable political speech oppose campaign finance limits, while more "left" as opposed to "liberal" organizations and "good government" groups tend to support such limits. But if Olson's point was that the Justices have jurisprudential rather than merely political commitments, he chose a very peculiar case to make the point. For note that on the very same day that the Court split 5-4 to uphold the speech claim in FEC v. Wisconsin Right to Life, it split 5-4---with the same 5 and the same 4---to reject the free speech claim in Morse v. Frederick (the "Bong Hits 4 Jesus" case). I don't want to say that the results (or the dissents) in the two cases are irreconcilable, but the mirroring of the two cases does sorely test Olson's claim that what we really have here are nine Justices with differing levels of commitment to the principle of free speech. If so, how do we account for the fact that all 5 of the Justices in the majority were more protective of speech in Wisconsin Right to Life than all 4 of the Justices in the dissent, but that the same 5 were less protective of speech in Morse v. Frederick than all 4 dissenters? Isn't it much more plausible to attribute the outcomes in these cases to the overall ideological leanings of the Justices? That is, after all, what the large-n statistical studies of the Court consistently say.

To be clear, as I have noted in my academic work, the so-called "attitudinal model" of Supreme Court decision making---which says it's basically all just politics up there---is an over-simplification. There are actual jurisprudential debates that don't neatly track political ones, and Justices (of all ideological persuasions) do bow to clear law that goes against them. So I agree with Olson that the labels "liberal" and "conservative" leave out important nuances. But as anybody paying attention can plainly see, such labels do capture a great deal of what is going on.

10 comments:

Jonathan said...

When the Justices "bow" to a previously staked jurisprudential position aren't they really working to promote their larger political agendas which they think will be well served by the solidification of the particular jurisprudential rule (even if in the discrete case they don't like the outcome)?

Benjam said...

jonathan:
this is exactly the rejoinder that attitudinalsits make. remember, though, that attitudinalists assert that justices dont follow legal rules. therefore, its strange to imagine a justice sacrificing a discrete outcome for a legal rule that, according to attitudinalism, future justices wont follow anyway.

the whole story ultimately boils down to a question about how you define "political."

Benjam said...

response to mike:

1) just for the record, the comment you made opening the segment was really the least audible part of everything you said during the interview. i had to go back a second time to get it exactly. they say that ted is too old for the court so maybe you need to speak up a bit. :-)

2) i really dont think that olsen was making a sophisticated argument with respect to wisconsin right to life. he was basically just going with the "strange bedfellows" argument. we've seen that before, to the extent that it establishes the fact that, at a minimum, there is something at work other than "unidimensional" politics. his point was illustrative more than explanatory.

3) I cant get enthused about attitudinalism simply because it "captures a great deal of what is going on." this isnt even a theory we're talking about, just a single assumption with a positive correlation to voting patterns.

more to the point we all now understand that there is a great deal of overlap between judicial conservatism and political conservatism. so most of the time, legal and political scholars can both get to an explanation of a given outcome by applying their own metric. lawyers explain it through jurisprudential analysis, political scientists use ideological scaling with spatial models. but its all "he said, she said."

my point is that both disciplinary approaches (law/attitudes) are extremely capable of capturing much of what is going on. you were the one who beat the computer using legal analysis. (or were you just lining the justices up on ideological lines?)

the hard cases are the ones WITHOUT the overlap. in "whose ox is being gored" you show how federalism can expose areas where jurisprudential preferences and political preferences do not overlap. moreover, you seem to conclude that certain cases expose a fatal flaw in the attitudinalist model. with that, i cannot disagree.

Michael C. Dorf said...

Benjam: I wasn't offering a defense of attitudinalism. I think you and I agree about its limitations. I just wanted to counter what I saw as a claim by Olson that conventional political categories are almost irrelevant to the Justices' decisions.

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