CONCEPTUALIZING LAW FOR EMPIRICAL ANALYSIS:

JURISPRUDENTIAL REGIMES AND SUPREME COURT DECISION MAKING

Herbert M. Kritzer and Mark J. Richards

 

Paper prepared for 2001 Joint Meeting of the Law & Society Association and the Research Committee on Sociology of Law, Budapest, Hungary, July 4-7.

 

Introduction

            How do we talk about the idea of law as it relates to patterns of Supreme Court decision making? This seemingly simply question actually provokes substantial conflict among scholars.  At one end of the debate stand many political scientists who see law as essentially irrelevant for explaining the decisions of Supreme Court justices; those decisions, these analysts argue, primarily reflect the justices’ policy preferences, perhaps tempered by strategic concerns both with regard to other justices and with regard to other institutional actors (i.e., Congress) with which the Court must interact in the law making process.  At the other end one finds many legal academics who analyze Supreme Court decisions in terms of their relationship to a combination of doctrinal principles discerned from both instant and prior decisions of the Court and textual sources such as the legal texts themselves and textual materials providing insights into the intentions of drafters of statutes and constitutional provisions.[1]  In between stand large numbers of both legal academics and political scientists who acknowledge the significance of justices’ individual views and preferences but see the justices as being constrained by something more than the policy preferences of other actors.

            Segal and Spaeth, the leading proponents of the attitudinal model of Supreme Court decision making, argue that justices of the Court are free to decide cases solely in line with their policy (attitudinal) preferences, and in fact almost always do so decide. In their most extreme statement of their position, Segal and Spaeth (1994, 11) contend that the "the attitudinal model is a complete and adequate model of the Supreme Court's decisions on the merits" and "attitudinal factors are all that systematically explain the votes of the justices" (emphasis in original). In a somewhat latter analysis, Spaeth and Segal concede that justices might defer to law in the sense of precedents over their policy preferences on some occasions, but that "the overall levels of precedential behavior are so low that only ... preferential models ... appear to be in the right ballpark " (Spaeth and Segal 1999, 288). Segal and Spaeth forcefully argue that the justices' freedom to pursue their policy goals is due to the justices' specific institutional situation on the Court: justices possess life tenure, sit at the pinnacle of the judicial hierarchy, seldom have ambition for higher office, choose which cases they will decide, and have little fear of being overturned by the elected branches of government (ibid., 18-19).

            We do not dispute that the Supreme Court's institutional setting produces a situation where justices are freed from the kinds of constraints faced by lower court judges or the constraints faced by elected officeholders or appointees serving either fixed terms of office or at the pleasure of some other officeholder. Even if the justices did face these kinds of external constraints, law—whether in terms of  precedents, legal texts, or statements of intentions—frequently do not command judges to decide a particular way (Gillman 2001, ms.p. 7); precedents are more likely to constrain justices from reaching a particular policy goal.  That is, being constrained by precedent or legal texts does not necessarily mean that justices are compelled to reach a particular outcome; rather only that a justice may be prevented from reaching some preferred outcome (compare to Altman 1990, 307).   

Freedom from review or electoral accountability does not prevent the justices themselves from erecting other constraints that shape their decision making processes and/or outcomes. At the simplest level, the justices may see some constitutional mandates as so clear that even where their own preferences are otherwise, they would feel compelled to decide a case in a particular way. For example, does anyone doubt that an explicit establishment of religion by a local government would be struck down by a unanimous Court even drawing the votes of those most committed to states' rights? If the town of Kiryas Joel were to pass an ordinance restricting property ownership and voting to members of the Satmar Hasidic sect, does anyone doubt the outcome of an appeal to the Supreme Court? Or, to take a similar hypothetical raised by Ackerman in his book We the People (1991, 14), presume that as part of a worldwide fundamentalist revival early in the 21st Century, a new amendment to the Constitution, specifically overriding the establishment clause of the first amendment, is passed by Congress and ratified by the states:

Christianity is established as the state religion of the American people, and the public worship of other gods is hereby forbidden.

Does anyone doubt that justices of the Court would feel compelled to enforce such an amendment regardless of their own views on the matter, and if they felt unable to do so would have only the option of resignation in protest?

            The idea that Supreme Court decision making is unconstrained and justices simply pursue their policy preferences leave many political scientists (Brenner and Stier 1996; Brisbin 1996; Knight and Epstein 1996; Lawrence 1994; Songer and Lindquist 1996), to say nothing of legal academics and judges, shaking their heads¾although the events of December 2000 may have given many of these skeptics a moment of pause. The critics do not question the position that attitudes are important; as Smith observed (in his contribution to Lawrence 1994, 8), "if our task is predicting judicial votes, and the choice is between the 'legal model' Segal and Spaeth describe and models of ideological attitudes, then I, along with virtually all other political scientists, am firmly on the side of the Segal and Spaeth." Rather, the critics argue that Segal and Spaeth have created a "strawman" image of the role of law in Supreme Court decision making, an image that is bound to fail; as Rosenberg (in his contribution to the Lawrence symposium) observes, "practically no judge or scholar believes" the legal model of Segal and Spaeth (p. 7).

 

MECHANISTIC LAW OR LAW AS INSTITUTIONAL CONSTRUCT?

            Segal and Spaeth (see also Brenner and Spaeth 1995) rely upon an extreme model of legal constraint. In their most extensive writing on the subject, they limit their focus to precedent, and measure the influence of law by examining justices' willingness to defer to precedent when that precedent directly conflicts with their policy preferences (Segal and Spaeth 1996; Spaeth and Segal 1999). Elsewhere, their discussions of the influence of law are similarly mechanistic, focusing either on "plain meaning" of statutes or "intention" of the legal drafters (Segal and Spaeth 1993, 33-53). Beginning with the legal realists, mechanical jurisprudence has been unmasked by legal scholars (Mensch 1982).

            Earlier political scientists saw law's influence in a more nuanced way. For example, over 30 years ago, Shapiro (1968, 71) wrote:

[Even if] stare decisis does not dictate automatic results, ... [that] does not mean that legal decision making is a form of free play in which every judge can do exactly what he [sic] pleases... [H]e is constrained by the previous state of the law insofar as it is clear. Because it is never entirely clear he always has some discretion. And he is likely to find the law less and less clear and exercise more and more discretion as he finds that the old law is giving the bad results.

Segal and Spaeth's characterization of the role of law bears little relationship to the way that legal scholars consider the role of law in the decisions of the Supreme Court.[2] Typically these scholars do not talk about the Court creating precedents that define or predict outcomes of future Supreme Court cases. Rather, scholars ranging from Tribe (1988) to Posner (1986) focus on how the decision structures created by the justices will impact future court decisions, both at the Supreme Court level and in the courts below. Central to these discussions are the categories and levels of scrutiny or balancing that should guide decisions: "compelling interest," "market participant," "incitement of imminent illegal action," "strict scrutiny," or "undue burden."

These are important because of the Court's institutional role in the polity. As appointed members of a branch of government that lacks the electoral support of other democratically elected political actors, the justices must provide reasons for their decisions. The justices employ the concepts of legal categories and levels of scrutiny to explain and justify their decisions (Carter 1994).  In doing so, the justices create, refine, and explicate legal structures that guide future decision-makers, in principle including the justices themselves, in answering reaching decisions that raise similar questions.  Shapiro described this role of the Supreme Court in terms of what he labeled legal doctrine:

Doctrine is the halfway house between law, in the sense of statutes and precedents binding on the Justices, and policy, in the sense of political choice unhampered by such bonds …. [Thus, doctrines] are at the same time acknowledgments by the Court that they are limited by statutes and vehicles for effectuating one of the range of choices within those legal limits (Shapiro 1964, 47, as quoted in Bybee 1999).

In enunciating doctrine, or what might also be thought of an analytic or decision framework, the Supreme Court provides guidance to other players in the political/legal system.

While for lower courts, Supreme Court decisions may serve as relatively straight-forward precedents (Schauer 1987), cases accepted for review by the Supreme Court seldom present questions that are so similar to prior cases that justices cannot argue that they are deciding a different issue, although justices may seize on a case to reconsider directly a prior decision or accept a case with the specific intent of considering whether a prior case was incorrectly decided, e.g., in granting the petition for certiorari to hear Gideon v. Wainwright (372 U.S. 335, 1963), the Court specifically directed counsel to address the question "Should this Court's holding in Betts v. Brady, 316 U.S. 455 [1942], be reconsidered?"  However, such cases are rare.

Political scientists working in the “interpretivist” mode may focus on trying to discern the decision structures guiding justices.  For example Gillman’s (1993) analysis of police powers jurisprudence as applied to issues of economic regulation during the Lochner era focuses not on precedent in the relatively mechanistic sense of one decision dictating a result in a future case, but rather on how the justices struggle to apply a legal principle, state neutrality, to a world in which economic activity was rapidly growing.  Justices regularly disagreed as to where the line between permissible and impermissible state intervention was; however, Gillman argues that they generally agreed that the issue was one of whether state intervention would improperly favor one economic interest over another one.  Eventually, Gillman argues, this line of analysis ceased to be dominant in the way the Court looked at cases involving economic regulation, reflecting the realization that factionalism and the favoring of interests were unavoidable in state action in response to the development of large scale economic activity.  The “old regime” [Gillman’s words] in which the Court sought to distinguish state interventions in market relations that were based on a historically defined conception of public purposes from those that were attempts by particular classes to gain advantage in the market was brought down by the social reality of economic development.

            In the wake of the demise of the traditional police powers approach, the Court had to find another approach that would both serve as a framework for its decisions and a framework that would allow other institutions to anticipate the Court's action.  How to explain the shift to a new framework for decision making? Attitudinalists claim that the justices' policy preferences predict the change; some institutionalists modify this to incorporate the justices' strategic concerns with the preferences of their colleagues and external institutional actors such as key members of Congress and the president; still other institutionalists see the best approach as that of understanding the analytic framework the Court is applying. While in some areas, prediction based solely on justices' preferences as illuminated by key leading cases might be most efficacious, in many areas patterns and categories of analysis described by the justices must be combined with the justices' preferences (Shapiro 1964, 40-43). For example, if the Court is applying a "rational basis test" to a particular area of constitutional jurisprudence, the other political actors understand that the Court will likely defer to other political decision makers. While one can argue that the Court's decision to apply such a deferential standard is a reflection of policy preferences, there are other basic explanations such as the justices' recognition of the Court's institutional role within the larger governmental structure (Sunstein 1999), the problematic nature of some areas of law for ongoing judicial scrutiny (Shapiro 1964, 143-173), or the body of practice that provides the foundation for law generally and the Court more specifically (Brigham 1999, 24-25).

The central role of law in Supreme Court decision making is not to be found in precedents that predict how justices will vote in future cases.  This is not because of the multiplicity of precedent from which justices can choose.  Rather, the cases that the Court chooses to hear are those in which precedent, as that concept is most often used, is most problematic.  As Schauer notes, “reasoning [and hence deciding] from precedent … presupposes an ability to identify the relevant precedent” (Schauer 1987, 576).  Identifying relevant precedent requires some framework or “organizing theory” which guides the decision-maker.  One of the reasons that cases get to the Supreme Court is precisely because of ambiguity over the question of which precedents should be deemed relevant and irrelevant, or more precisely, which precedents should be deemed most relevant and less relevant.[3] Looking for the influence of law by focusing on mechanistic precedents that dictate decisions misconstrues the role of law, particularly at the Supreme Court level.

This analysis leads us to argue that when we talk about the role of law at the Supreme Court level, we need to think of law in terms of the structures the justices create to guide future decision making: their own, that of lower courts, and that of nonjudicial political actors. Shapiro (1968, 39) stated this succinctly regarding appellate courts generally: "[T]he opinions themselves, not who won or lost, are the crucial form of political behavior by the appellate courts, since it is the opinions which provide the constraining directions to the public and private decision makers who determine the 99 per cent of conduct that never reaches the courts." This reflects the nature of legal reasoning in the U.S. system. Sunstein (1999, 43) distinguishes between "rule following" and "case analysis"–the process of analogical reasoning that involves parsing the issues in a case and referring to prior cases for guidance on acceptable alternatives. He argues that while case analysis allows judges flexibility, it does not lead to unconstrained decision making because precedents provide a "backdrop" that "removes certain arguments from the legal repertoire" which in turn "much simplifies analysis," and that "most of the important constraints on judicial discretion [in interpreting the Constitution] come not from constitutional text or history, but from the process of grappling [emphasis added] with previous decisions"(ibid, 42).

            Some analysts, e.g., attitudinalists, might critique this portrayal of the role of law by pointing out that the justices create the law that guides their own decision making, so the law is itself a reflection of the justices' attitudes. We do not deny this. However, as many others writing in an institutional vein have argued (see for example Brigham 1999; McCann 1999), this begs the question. With the exception of those scholars who hold a strict natural law perspective as underlying all law, all jurisprudential understandings of law see it as a human construct, including theorists ranging from originalists (e.g., Scalia 1997) to positivists (e.g., Hart 1961) to advocates of political and normative interpretations of law (e.g., Dworkin 1996). That is, law, as a "cognitive structure" (Smith 1988, 91), is itself an institution, a political institution, created by men and women to impose constraints on themselves and others. As Brigham (1999, 20) observes, "Institutions share a capacity to order social life because people act as if they exist, as if they matter." Thus, as with other human-made institutions, law is created to serve a purpose, and people go along with the institution if they see its purpose as worthwhile or if they are otherwise constrained by the institution. People defer to law even when there is no enforcement mechanism (perhaps the classic example being waiting at a red light at 2 a.m. in the morning at a totally deserted street corner). People will defer to an institution either by voluntary decision or because of some other constraint. They are more likely to go along voluntarily if they had a significant role in creating or operating the institution, but as the red light example shows, deference to the law is a powerful social construct, and there is no reason that this should not apply to the Supreme Court as well as to the 2 a.m. driver. If the adherents of a pure attitudinal model wish to reduce law down to nothing more than attitudes formally stated, the attitudinal model becomes tautological; attitudes drive decisions because every decision is made on the basis of attitudes. Our position is more complex; attitudes influence the development of law, but law can also have effects on the decisions of the Court, and these effects are not purely attitudinal.

            Law can be changed if the views of those charged with creating it change. However, this potential for change is true of all human-created institutions. What differs across institutions is the ability of those possessing the power of change to make actual changes. The Supreme Court may have more freedom to make changes than is true of many other institutions, but that does not mean that members of the Court systematically fail to abide by the institutional structures that define the Court's role and its range of potential action and decision making. This reflects the fundamental insight of new institutionalism: political actors create institutions based on their policy goals, but those institutions then structure and constrain the behavior of the very political actors who created the institutions.

 

WHY DO JUSTICES USE THE LAW?

            Justices see the law that they make as providing guidance to other institutions in society. But for that guidance to be at all effective they must rely upon that same law as guidance to themselves in order to treat like cases consistently. The justices commonly hold consistent treatment of like cases as a goal, although they may differ in their individual treatment of this goal. They are engaged in a process of judgment, in which they reason about their decisions. As they reason about their decisions, the justices make arguments that are based on more than personal policy preferences. The justices strive to reason in a generalizable manner that takes into account the points of view of other justices and other political actors, as well as their own views. Appeals to law are means of achieving this goal. The institutional requirement that a majority opinion gain the support of at least four other justices points to the need for generalizable reason. Research on the strategic behavior of the justices indicates that the justices engage in bargaining and accommodation with respect to the content of opinions, so there is evidence that the reasons justices offer in opinions matter to the other justices (Maltzman, Spriggs II, and Wahlbeck 2000). The justices do not justify their decisions by saying, "I am a liberal, so I vote for the rights of the speaker." Rather, they reason in a more general manner. In this sense, reasoning promotes consistency. The justices attempt to make their decision fit within the analytic framework that is relevant to the case. They can generalize from the particular factors of the case at hand to the more general, consistent analytic framework that has applied to similar cases. Justices want to treat like cases alike based not simply on the results of previous cases, but on the principles that justify those results. This idea of promoting consistency by using legal reason in judgment to treat like cases similarly is expressed by Dworkin, who suggests that the "gravitational force" of precedent is explained by the "fairness of treating like cases alike" (1977, 113).

An additional reason for following the law is that competency in the language of the law is a prerequisite for making plausible arguments. Competency in legal language is a fundamental condition for judicial decision making.  Brigham (1978), drawing on the works of Wittgenstein and Winch (1958), explains that justices filter case situations through legal language. An understanding of the language of the law is necessary for judicial action. "Where legal categories compromise the body of discourse, however, students of judicial decision must be attentive to the conceptual capacities and the necessary linguistic competencies that function as prerequisites to action" (Brigham 1978, 47). However, legal language will not determine the outcomes of particular cases; the justices use their own values and understandings of language in deciding cases. In this sense, knowledge of legal language enables justices to make creative arguments, as long as those arguments are within the bounds of plausibility. Somewhat related to these two reasons is the idea that legal concepts work as heuristics that help to organize and categorize decision making.

Given that the justices use law to decide new cases which will almost invariably differ from prior cases, justices need to think in terms of law as defining and refining decision structures rather than as creating rules in the form of "if X, then decide Y." In its simplest form, a decision structure could be expressed as a regression-like equation:

            Decide Y if (b1X1 + b2X2 + b3X3 + etc.) > k

where this reads, decide Y if the weighted combination of factors 1, 2, 3, etc. exceeds some threshold. The decision structure is the definition of the relevant factors (X's) and how they should be weighted (b's). A recent essay on race-conscious redistricting speaks in terms of "legal framing" but reflects the concept that we label below "jurisprudential regime." Specifically, considering the implications of Shaw v. Reno (1993), Bybee (1999, 221) argues that Shaw "did not merely provide a rationalization for political opposition to race-conscious redistricting"; the attitudinalist view of the analysis in Shaw would be that it was only a rationalization for the conservative preferences of the majority. Rather, Shaw "offered a new set of terms in which the problem of minority representation could be understood. The resulting framework made a difference in how representative institutions were conceptualized and structured." More importantly, the framework provides a structure to guide not only those drawing district lines, but also for the courts, including the Supreme Court itself, to assess the constitutionality of districting plans. For example, the Court's most recent redistricting decision, Easley v. Cromartie, No. 99-1864, upheld the long-contested North Carolina congressional district. Justice Breyer's opinion consisted largely of a recitation of past opinions and a focus on how the principles of those opinions related to the evidence of the instant case (Greenhouse 2001). As illustrated by Gillman’s example of police powers jurisprudence, decision structures change over time, as problems with existing structures become apparent, as the world in which decisions must be made changes, as the Court's personnel changes, and as justices' values change; yet while decision structures reflect the attitudes of the justices who create them, and can be changed by justices who either disagree with them or find them to have problems, they do serve to structure how justices go about deciding cases even if they do not directly constrain the votes of justices.  Decision structures reflect core understandings of the bases on which cases should be decided, the interests or goals to which deference should be shown in situations of conflict, and the relevant roles of government and governmental institutions.

A broad concept that captures the role of decision structures and the idea that they change is that of regime, or as we will label it for our purpose, jurisprudential regime.  Our argument that in thinking about the role of law in Supreme Court decision making, the concept of jurisprudential regime is better than any of the classic ideas of precedent, plain meaning, or original intent.  In the balance of this paper, we explicate our idea of jurisprudential regime and suggest how this concept provides a vehicle for incorporating a notion of law into statistical models of Supreme Court decision making.

 

JURISPRUDENTIAL REGIMES

The Concept of Regime

            In common parlance, the term "regime" is typically associated with a particular governing elite, or possibly with a particular system of rule or government. Political scientists, in contrast, normally use the term in connection with institutional forms.

            For example, in American political development, a regime defines a period of American political history marked by a combination of substantive political content and the particular ways in which federalism and separation of powers operate in practice (Orren and Skowronek 1998-99, 690). It is the regime that "infus[es] institutions with meaning, purpose, and direction (ibid., 694)," and this reflects a combination of intellectual, political and institutional elements (Polsky 1997a, 153-154;  see also, Polsky 1997b). More specifically, in recent work on the New Deal period,

[P]olitical regimes ... appear as working arrangements among institutions fashioned by new governing cadres to elaborate their particular political commitments. As regimes transform new ideas about the purposes of government into governing routines, they carry on the reformer's central contention as the political common sense of a new era, a set of base assumptions shared (or at least accepted) by all the major actors in this period. In this way, political regimes come to exercise an overarching influence over the affairs of state (Orren and Skowronek 1998-99, 694).

Human agency is central to the construction of regimes, and regimes are vulnerable to changes both at the elite and the mass level.

            The other subfield that has used the regime concept extensively is international relations (Krasner 1983a; Kratochwil and Ruggie 1986). In that context, regime, or more specifically "international regime," is customarily defined as "principles, norms, rules, and decision making procedures around which actor expectations converge in a given issue area" (Krasner 1983b, 2). The concept evolved in large part as an answer to the realist perspective that nations pursued their own policy goals, checked only by the resources and power of nations with conflicting goals. The core argument of regime theory scholars is that nations must consider both policy goals and the regimes that govern particular sets of international issues. International decision makers take into account national interest and national power in dealing with issues, but also assess the principles, norms, rules, and procedures that govern international decision making on those issues. In the absence of anything like a regime, nations would simply pursue their own interests in whatever way each nation believed appropriate. Furthermore, regimes are established by the states, particularly the more powerful states, that are then constrained by those very same regimes; the effect of the regimes is to overcome what would otherwise be major coordination problems (Young 1983). Regimes structure the anarchic, Hobbesian world of the realists. Without regimes, the only governing principles of the international system are power and interest

            Of course, there are different perspectives on whether regimes are effective, the factors that make them effective, and how regimes relate to power and interest. neoliberal theories of regimes, which are interest-based and represent the mainstream approach, contend that regimes help states to achieve common interests and avoid collectively sub-optimal outcomes. These theories contend that states want to maximize only their own absolute gains (Hasenclever, Mayer, and Rittberger 1997, 4). By contrast, some realists suggest that regimes are not influential enough to warrant serious consideration. Other realists consider regimes to be influential, but offer power-based rather than interest-based theories (ibid., 3). Cognitivists offer knowledge-based theories of regimes, which contend that regimes can transform interests. The cognitivists view states from a sociological rather than a rational choice lens, and suggest that states are more like role-players than utility-maximizers (ibid., 5-6).

 

Regimes, Law, and Supreme Court Decision Making

             The linkage between regimes and law has been clearly recognized by international relations scholars. The field of international law has experienced a rebirth as a part of international relations in large part because scholars have come to recognize that international law and international regimes are closely related, with international law constituting one form of an international regime (see Burley 1993; Kratochwil 1989).

            In recent years, some scholars focusing on U.S. constitutional history have explicitly or implicitly applied a construct of regime to understanding broad patterns of Supreme Court decisions. In We the People, Ackerman explicitly looks at what he terms "constitutional regimes:" "the matrix of institutional relationships and fundamental values that are usually taken as the constitutional baseline in normal political life" (Ackerman 1991, 59); Ackerman argues that American history has been marked by three distinct constitutional regimes: the initial founding regime, the "Middle Regime" which began with Reconstruction, and the "Modern Regime" beginning with the "switch in time that saved nine" and epitomized by footnote four in Carolene Products (1938). This and other work make it clear that the Court not only functions within constitutional regimes but is also central in creating those regimes (see, for example, Smith 1997; Whittington 1999). Similarly, Clayton and May have called for application of the neoinstitutional concept of "political regimes" to the study of the legal decision making. "The approach suggests that judicial attitudes and strategies in decision making are both constrained and constituted by the broader context within which the Court operates" (1999, 234).

            In defining the concept of jurisprudential regime, we step down a level or two from the broad notions of constitutional and political regimes. Where constitutional and political regimes define expansive patterns of decision making and institutional interrelationships, jurisprudential regimes focus on more specific areas of Supreme Court activity. In a sense, we draw upon one standard definition of jurisprudence: “a system or body of law; especially a body of law dealing with a specific issue or area” (Merriam-Webster's Dictionary of Law, 1996, online at Findlaw.com). Thus, we conceptualize a jurisprudential regime referring to a key precedent, or a set of related precedents, which serve to structure the way the Supreme Court justices evaluate key elements of cases in arriving at decisions in a particular legal area. The decisions enunciating these key precedents serve to demarcate jurisprudential regimes, and regimes are established for a particular period of time. The way that jurisprudential regimes structure Supreme Court decision making is by establishing which case facts are relevant for decision making, and/or by setting the level of scrutiny or balancing the justices are to employ in assessing case facts. Fundamentally, jurisprudential regimes function as intervening variables between factors influencing justices' decisions and the decisions themselves much as international regimes function as intervening variables in the actions of nation-state actors (see Krasner 1983b).[4]

            The construct of jurisprudential regime fits squarely within the new institutionalist perspective on politics generally and within recent institutionalist approaches to the study of the Supreme Court (see Clayton and Gillman 1999; Epstein and Knight 1998). A jurisprudential regime is a social institution in the sense that law more generally is a human construct. As such, jurisprudential regimes rely upon, even as they structure, the actions of the legal decision makers. There is nothing about jurisprudential regimes that prevents a justice from ignoring the regime if the justice is so motivated. That is, unlike the physical law of action-reaction governing physical machines (i.e., an action mandates a reaction), human decision making generally, and legal decision making specifically, can and often does deviate from social and institutional constraints such as those created by law generally and jurisprudential regimes more specifically. This is the reason that attitudes matter. However, even though there is nothing superior to the Supreme Court in the political system (i.e., the justices are secure through life tenure and there is no appellate body above the Court), justices need something like jurisprudential regimes to overcome what might otherwise be major coordination problems if each justice simply sought to advance his or her own policy preferences. Thus, law can be thought of as serving this coordination function while at the same time the justices are deciding cases based primarily, but not solely, on their own policy goals.

 

            The structuring attributed to a jurisprudential regime establishes which case facts are relevant for decision making in a particular area of law, and/or sets the level of scrutiny or balancing the justices are to employ in assessing case facts. Figure 1 represents this model graphically. A justice's decision involves inputs that we label "potential decision elements"; these include things such as policy attitudes, factual elements, and strategic implications for other actors. One can think of these potential decision elements as unweighted as they are initially identified and defined. In the figure, the unweighted nature of the potential decision elements is indicated by the absence of any coefficients in the arrows going into the jurisprudential regime. What Figure 1 shows is that it is the jurisprudential regime that filters these potential decision elements and transforms them into actual decision elements carrying some specific weight in influencing the justice's vote. In the end, not all potential decision elements actually impact the decision; this is indicated by the absence of some possible arrows emerging from the jurisprudential regime. That is, some of the potential decision elements do not emerge from the regime because the regime deems them irrelevant (note the missing arrow for Potential Decision Element D in Figure 1). The weighting of the elements by the jurisprudential regime is reflected in the coefficients (lower case letters) attached to each of the arrows leading finally to the decision (the missing arrows could also be thought of as having coefficients equal to zero).  If one were to place two jurisprudential regimes for a given area of decision making side-by-side, the differences would be found in which arrows emerged out of the regime, and in the weights (lower case letters in the figure) associated with those areas.

 

 

            By advancing the construct of jurisprudential regime we do not in any way reject the argument that justices are influenced significantly, perhaps even primarily, by attitudes. For example Potential Decision Element A in Figure 1 could well be the justice's attitude, and one could redraw the model so that it emphasizes that the heavy contribution of that element (as we have done in Figure 2a). Furthermore, there is nothing that necessarily restricts the potential decision elements, whether attitudinal or something different, to focusing on policy questions (e.g., criminal justice, economic policy, civil liberties policy). This would allow factors other than policy attitudes, whether they be what Baum (1997, 4) labels "legal policy" goals or what have traditionally been labeled "role attitudes" (Becker 1964; Gibson 1978; Glick 1971; Howard 1977). We should also note that nothing in this framework is inconsistent with the view that justices are constrained by institutional and strategic concerns such as the need to obtain agreement from four additional colleagues to secure a majority in favor of the justice's position (Epstein and Knight 1998; Murphy 1964, 37-90) or the desire to avoid overturning of decisions by acts of Congress (Eskridge 1991; Marks 1989; Murphy 1964, 156-175;  but see Segal 1997). While Figures 1 and 2a have all potential decision elements filtered through the jurisprudential regime, this need not be the case. Some potential decision elements might influence the decision directly without any mediation by the jurisprudential regime. Judicial attitudes might be one such variable; the position of the Solicitor General as a party or amicus might be another. Figure 2b shows a further modification of the jurisprudential regime model that allows for decision elements unmediated by the jurisprudential regime.

 

TYPES OF JURISPRUDENTIAL REGIMES

            There is no single model for a jurisprudential regime.  A regime can be defined along any number of possible dimensions.  Some of these dimensions closely resemble what might be labeled “doctrine” while others depart from this idea.  Here we briefly describe five “types” of jurisprudential regimes.

Specification of categories of cases/issues:  Some jurisprudential regimes specify an organization of cases or issues.  That is they specify criteria by which justices, judges, and others are to decide what criteria apply to a given case.  In the area of free speech, the justices have created what Tribe has (1988) labeled the two-track model, with strict or intermediate scrutiny applicable depending upon whether a law is regulated the content of expression or is content-neutral.  More generally, the justices have identified types of expression such as obscenity and commercial expression that are exceptions to the two-track analysis. In the area of the fourteenth amendment, equal protection, the justices have distinguish between different bases of classification with the level of scrutiny dependent upon the basis of classification.  In fourth amendment search and seizure cases the justices have distinguished between searches that take place in a custodial setting from those in a noncustodial setting

Specification of level of deference to other actors:  In a variety of areas, the justices have sought to specify how much deference courts are to pay to other actors, or that courts are to pay to lower level courts.  In May of this year (2001), the justices decided (Cooper Industries Inc. v. Leatherman Tool Group, No. 99-2035) that appellate courts should review punitive awards on a de novo basis rather than relying on an abuse of discretion standard.  In the area of administrative law, the Court has tried to establish the level of deference that the courts should give to the decisions of administrative agencies.  In a variety of areas such as freedom of expression, the Court has specified whether governmental action should be judged on a rational basis criteria, or be subject to strict scrutiny, or something in between.

Specification of core definitions:  In a variety of areas, a major issue has been that of establishing key definitions.  For example, what constitutes pornography?  The so-called Miller test is in fact a definition.  What constitutes interstate commerce?  What makes a regulation of expression content-based or content-neutral? Laws that punish the communicative impact of expression or the viewpoint of expression are content-based. Laws that merely regulate the time, place and/or manner of expression rather than the content are content-neutral. The content-neutral category also includes incidental regulations: regulations that focus on behavior or conduct, rather than expression, but which have incidental effects on