Predicting how Supreme Court justices will vote is a widely shared activity among political scientists who want to understand what major factors inspire judges to decide in important court cases (Martin, Quinn, Ruger, Tim 2004). In the past, there have been multiple approaches for anticipating the outcomes of court cases. Experts have tried to foresee decisions by measuring the level of vocal pitch in a justice (Dietrich 2017) , placing previous court ruling data into machine learning algorithms (Martin, Quinn, Ruger, Tim 2004), and using artificial intelligence bots (Hutson 2017) . However, constructing a method to predict outcomes in certain issues, such as the First Amendments freedom from religious establishment clause, has not yet been accomplished. Focusing on explaining what persuades justices to vote in religious freedom cases is relevant to those who are worried about how their rights could change in the future. Especially for those who are religious as well as those who are easily discriminated against minorities such as the LGBT community (Human Rights Watch 2018), the Supreme Court’s religious freedom decisions can affect their day to day lives (Human Rights Watch 2018).
Religious freedom cases in the US Supreme court have been described as being an “all or nothing game” (Dallas 2017), where one side wins everything, and the other receives nothing. When discussing the future of religious liberty, Frederick Gedicks, law professor at Brigham Young University quotes that The Supreme Court has become a “valuable tool ” in regards to progressing civil rights and liberties, and that legislative compromise, has become “displaced” by the court. (Dallas 2017). Being as influential as it is, it would be beneficial and necessary for those who have something to gain or lose in religious freedom cases, to understand the explanations behind the Supreme Court justices and how they vote.
Researching what exactly influences Supreme Court decisions can also help the people of the United States determine whether or not government institutions, such as the Judiciary, are effective in upholding our rights. If variables such as ideology or peer pressure affect judicial decision-making, then the judiciary may not be as much as a legitimate institution as previously thought. If evidence of a certain factor does have a significant influence in the outcomes of court cases, it must be fixed to ensure the legitimacy of the Supreme Court. My research project would also be useful to those who are interested in the role of the judiciary in the United States democracy, a crucial part of America’s democracy. If it is actually easily influenced, biased, or ineffective, then political action must be taken in order to ensure the judiciary is effective in upholding citizens rights.
The Judicial Branch in United States’ separation of powers is vital to maintaining democratic stability (Zirin 2016). America’s founding fathers intentionally created two branches to be political, and one branch as non-political. If the courts become too politicized, public trust in the power and legitimacy of the Supreme Court will decline (Zirin 2016). Justices are supposed to be impartial, or non-political, in order to ensure complete fairness in a trial, and conventional wisdom has taught that there is no correlation between inherent bias and outcomes, and decisions are based in high democractic esteem (Bartels 2012). However, due to the human disposition of judges, it would be nearly impossible to be absolutely impartial on every court case (Geyh 2014).
Competing legal scholars, lawyers and litigants have contested for centuries about what influences the decisions of Supreme Court justices (Posner 1998). These leading scholars have generated two main competing threads on judicial decision-making. Formalism, which explains that judicial decision-making depends only on the facts of the case, the precedent and judicial deliberations, and the applicable law relevant to the given case (Jenkins 2016). Cases are decided rationally, and judges withhold reasoning including normative, political or moral philosophical factors from influencing any decision-making. They rely on the cold hard facts of the case, and emotional claims and feelings are not irrelevant. Formalists make their decisions much like a mathematician decides whether an answer is correct or incorrect (Posner 1987), and do not determine outcomes based upon biases or peer pressure.
Among the theory, there are different formalists such as “sophisticated formalists”, who believe that that decision making cannot just be a machine-like process; it involves weighing which legal sources are relevant and irrelevant, which credible legal sources they can use and acknowledging that the differentiation between them are done correctly (Leiter 2010). However, the problem with this theory is that it does not account for empirical analysts research, which has found that factors such as judge’s ideologies, past voting records, data about lower court involvement and the essence of who and what is involved have significant influence on decisions (Jenkins 2016).
The second theory, developed by professors and authors C. Herman Pritchett and Harold Spaeth, called Attitudinalism, holds that justices vote based primarily on their individual ideologies and attitudes. At the case level, the decision should be procured from the facts of the case without any beliefs or attitudes involved. At the judge level, the beliefs and attitudes held by the justices heavily motivate the decision of the case. However, the attitudinal model states at the case-judge level, both case stimuli and the attitudes of judges predict the outcome of cases (Segal 2006). The judge’s predisposed attitude and ideology determines how they will measure and react to the case stimuli (Cameron, Kornhauser 2015) Therefore, a mixture of case stimuli and ideology are the main tenets of Attitudinalism, which then can anticipate decisions. However, the theory states that judges will even reject or go against case stimuli or important facts of a case in order to uphold their beliefs, and some may require a gregarious amount of evidence in order to vote against their ideology and attitude (Jenkins 2016). Finding out where judges align themselves in the political spectrum is derived by using one of two methods. First, whichever party the president who appoints the Supreme Court judge belongs to, the judge almost always affiliated with as well (Jenkins 2016). Another method, called the “Segal-Cover scores”, which are a collection of past newspaper editorials describing the process leading up to the nominee’s confirmation, is a way of interpreting which party he or she affiliated with. Harold Spaeith and Jeffrey Segal have found significant relationships between ideologies and voting behavior of judges, noting that there must also be institutional incentives and disincentives in order to vote on behalf of their sincerely held beliefs (Segal 2006). Thus, the justices of the Supreme Court have the most incentive to vote in favor of their ideology namely because they belong to the highest court of the United States, and also serve a life term on the court. It would not be frivolous to believe that Supreme Court justices vote chiefly on their ideologies. Therefore, Attudialinists conclude that it is the current atmosphere of politics, and the case evidence displayed to them, that explains judicial votes, not the rule of law (Solum 2014).
With the Supreme Court being noticeably politicized in recent generations (The Economist 2018), and judicial nominations seem to be made by presidents with the same political beliefs and goals (Noack 2018), public assumption usually sides with the idea that a conservative judge will vote in favor of the religious, and liberals will vote in favor of the non-religious in religious freedom cases. Therefore, the Attitudinal model would seem to help explain the outcomes for religious freedom cases. For example, in the research study “Constitutions and Religious Freedom”, political analyst Frank J. Sorauf studied sixty seven religious freedom cases, and found that the justice’s decisions were largely motivated by their religious beliefs (Cross 2015). What’s more, Gregory Sisk, chair of Law at the University of St. Thomas, found that judges that belong to Christian denominational sects, or are of Jewish faith, were much more likely to vote in favor of the plaintiff (religious person in this case) in establishment clause cases (Cross 2015). However, the Attitudinal model cannot explain decisions that split the court along their party lines, such as the landmark Obergefell v. Hodges case that legalized same sex marriage (Liptak 2015), or unanimous decisions among the court, and therefore cannot be primarily based on ideological differences (Edelman, Klein, Lindquist 2008).
While both of these models obtain convincing evidence in explaining what influences judicial decision-making, I contest that both of these assertions are true as justices are complicated beings whose decisions cannot be deduced to a mechanical nor political approach, but rather a combination of both. Placing both of these theories together could potentially explain the unpredictable behavior of a Supreme Court justice i.e. what motivates a liberal judge or conservative judge to vote against their party’s interest. For example, only a combination of the Attitudinal and Formalist model could explain decisions from retired Justice Anthony Kennedy, a traditional conservative and Catholic, who frequently voted against his own party lines, yet did not rely only on past court cases (Dallas 2018). Relying on only one model insinuates that the court cannot be a legitimate institution if it only decides based on attitudes and ideological beliefs or an unwillingness to listen to emotional appeals. There is a balance between Formalism and Attitudinalism that predicts how judges will vote, otherwise complex decisions could never be successfully predicted by using one model over the other.