Studies of US Supreme Court decision-making often describe justices’ votes (decisions) as either liberal or conservative. This is understandable given that a justice’s ideology (how liberal or conservative they are) is consistently shown to be a significant predictor of his or her votes on the Court (Segal and Spaeth 2002). While justices have their ideological preferences, they also have their own unique ways of interpreting the Constitution. For example, the late conservative Supreme Court Justice Antonin Scalia was a textualist, believing that one should only look at the text of the relevant provision when applying the Constitution to a case (Scalia and Garner 2012; Scalia 1998). His jurisprudential and ideological opposite, the late Justice Ruth Bader Ginsburg, argued that interpretations of the Constitution should adapt to a changing United States (De Hart 2018).
When Justice Ginsburg wrote an opinion, she did not simply write, “I am a liberal, therefore I vote in a liberal way in this case.” Instead, she provided a detailed opinion in which she interpreted the Constitution and relevant laws and applied that interpretation to the case; there was legal reasoning behind her decision. While ideology may have informed her decisions, her interpretation style should not be overlooked as a distinct characteristic.
Scholars have produced numerous quantitative studies concerning the effects of ideology on US Supreme Court justices’ decision-making, but there have been few, if any, quantitative analyses of the effects of justices’ constitutional interpretation styles. This shortcoming is most likely due to the lack of a measure of this important concept. This chapter develops a measure of constitutional interpretation style for justices serving on the Supreme Court from 1946 to 2017 and applies the measure to justices’ votes in Fourth Amendment cases. Results suggest that these styles matter in predicting judicial decision-making, although their effects may be partially masked by the way scholars typically consider judicial decision-making and outputs.
Scholars have identified three primary models of judicial decision-making: legal, attitudinal, and strategic. The earliest of the three, the legal model asserts that judges are neutral arbiters of the law (Maveety 2003; Levi 1949). According to this model, judges decide cases in light of the facts in relation to precedent (existing case law), plain meaning of the Constitution and statutes, and the intent of the legislative branch and Constitutional framers (Segal and Spaeth 2002).
Over time, scholars became less satisfied with this black-and-white picture of judicial decision-making. Research revealed that justices consistently voted in ways that could be placed on a left-right ideological spectrum (Schubert 1968; Pritchett 1948). These discoveries led to the development of the attitudinal model, which asserts that judges decide cases in light of the facts in relation to their ideological values and attitudes (Segal and Spaeth 2002). In other words, judges decide cases based on their views about the relevant law and the parties in a suit (Spaeth 1972). Therefore, “private attitudes become public law” (Pritchett 1941).
It is important to note that law still matters in the attitudinal model. Studies show that justices’ preferences are constrained by precedent, judicial review, and adherence to constitutional provisions when they make decisions (Bailey and Maltzman 2008; Spriggs and Hansford 2001). Justices’ attitudes and the law are thus in a conditional relationship; what judges want to do is constrained by what they can do under the law (Gibson 1978).
The idea of the constrained justice is central to the strategic model of judicial decision-making. While justices may have their own preferences, they are in a state of interdependence with their colleagues and other branches of government (Epstein and Knight 1998; Murphy 1964). In order to “win” the final outcome of the case, they may have to compromise in other areas, such as opinion content. Constraints on justices’ preferences can come from sources both internal (e.g., collegial relations; interbranch relations) and external (e.g., public opinion; interest groups) (Baum 1998).
As this discussion illustrates, one particular model of decision-making does not have all the answers. Instead, it is important to combine elements of each theory to provide a more wholesale account of judicial decision-making. It is from this place that this chapter proceeds—recognizing that while attitudes may be important to justices, how they view and interpret the Constitution also affects their decision-making.
While seldom discussed in studies on judicial decision-making, constitutional interpretation style is an important and relevant judicial characteristic to consider. As this chapter will discuss in subsequent sections, interpretive styles are often mentioned during the nomination and confirmation process—especially for nominations to the US Supreme Court. These styles are part of the public discourse about nominees and may serve as cues for both the president and senators, helping them predict a nominee’s future actions. Further, as discussed in the introduction, interpretation styles are used as the bases for justices’ decisions. What follows is a brief overview of common interpretation styles.
Typically, interpretation styles are described as either originalist or progressive (Tribe 1995; Dodson 2008). The three primary originalist styles identified are original intent, textualism, and strict constructionism. Original intent relies on what the framers of the Constitution intended a clause to mean when they wrote the document (Segal and Spaeth 2002; Gillman et al. 2017). Justices subscribing to this method believe that the framers’ intentions should always be considered and respected (Powell 1985; Bork 1997; Kirby 2000). Textualism relies on the text of the Constitution itself. This style—made famous by the late justice Antonin Scalia—focuses on the relationships between words and the commonly understood meanings of those words both at the time the Constitution was written and the present day (Perry 1985; Tushnet 1985; Scalia 1998; Whittington 1999, 2004; Gillman et al. 2017). Finally, strict constructionism is a narrower form of textualism. This style limits constitutional interpretation to the clauses enumerated in the Constitution (Whittington 1999; Gillman et al. 2017).
A more progressive style of interpretation treats the Constitution as a living document (Marshall 1987; Starkey 2012). This style advocates for a Constitution that “adapts to changing circumstances and evolves over time” (Dodson 2008, 1320). When the Constitution is not explicit on an issue, clauses of the constitution and other statutes can be read to find their “spirit”; this spirit can then be applied to the case. Because America changes rapidly, interpretations of a document written over two hundred years ago should adapt.
While scholars often describe a justice as a textualist, or believing the Constitution is a living document, no quantitative measure of interpretation style exists. The primary goal of this chapter is to develop such a measure. Segal and Cover (1989) measured justices’ ideological preferences using newspaper editorials in order to capture a justices’ perceived ideology at the time of their confirmation. [1] It is in this spirit that I set about coding constitutional interpretation style. Because the editorials often quote the justices describing how they interpret the Constitution, this method provides a direct measure of interpretation style. Further, choosing editorials provides a manageable number of succinct documents written during a finite nomination period. In other words, it avoids the problems of studying countless justice biographies, memoirs, and interviews.
In order to avoid bias from politically motivated writers, Segal and Cover (1989) used two newspapers with a consistently liberal slant over time (the New York Times and the Washington Post) and two with a consistently conservative slant over time (the Chicago Tribune and the Los Angeles Times). They coded various paragraphs of editorials for statements that were either liberal, moderate, conservative, or none of the above. Based on the total number of editorial statements, they ultimately place justices on a continuum of ideological value scores ranging from 0 (unanimously liberal) to +1 (unanimously conservative).
While my coding of interpretive style follows Segal and Cover’s methods as closely as possible, some adaptations were made. The same two liberal newspapers were coded (the New York Times and the Washington Post), and one of the same conservative newspapers was used (the Los Angeles Times). However, the Chicago Tribune archives are not readily available electronically. Therefore, I used the Wall Street Journal, another conservative-leaning paper, in its place (Wagner and Collins 2014).
I coded five different categories of constitutional interpretation style and treated them as dichotomous variables. Therefore, a justice was coded as a (1) if he or she possessed a certain style and a (0) if he or she did not. The categories I use here are living document, textualist, original intent, other originalist, and progressive. Although scholars identify strict constructionism as an originalist constitutional interpretation style, only one justice in my study was called a strict constructionist by one of the four papers. Therefore, I created the other originalist category for this justice and others not fitting the rigid originalist categories. I created the progressive category to capture justices who have a progressive interpretive style but were not explicitly said to interpret the Constitution as a living document in the editorials.
To reduce bias in the coding, the following steps were taken. First, I coded newspaper editorials from the four aforementioned newspapers that were written during the time period six months prior to their nomination until the day of their confirmation. After coding all thirty-seven justices in the date range, final determinations were made using strict cutoffs. In order to ultimately be assigned to a style, the justice had to be coded as that style for at least three of the four papers used. This threshold provides a more balanced measurement, as it picks up liberal-leaning and conservative-leaning papers. It is also important to note that the categories are mutually exclusive. In this coding framework, a justice cannot belong to more than one constitutional interpretation style. The editorials did not ascribe more than one interpretation style to any of the thirty-seven justices. Table 1 provides more information on my coding framework and how I made final coding decisions.
For even more clarification, consider the following coding example. In a majority of the editorials, Justice Scalia was described as a defender of the words of the Constitution. Additionally, he was often quoted as saying that judicial decisions must be guided by the Constitution’s text. Because these statements belong to the textualism category, Justice Scalia was marked as a (1) in the textualist style and a (0) in the other five categories.