Legal Commentary

It is routine for political scientists to employ a "spatial attitudinalist" model of judicial decision-making, in which a judge's votes are predicted by the judge's non-legal ideology (often measured by the political party of the President who appointed the judge). I tend to think that the model is not helpful for lawyers who have to write briefs rather than poli sci papers. (How exactly does one insert a plea to a judge's "attitudes" into the brief? Write a special little section for Kennedy, appealing to his desire to look good at the next Bellagio conference? Ask Scalia to look to Catholic values?) Moreover, I suspect also that the model is predictive on such a crudely aggregate level that, in any particular case, it is not helpful for figuring out how a marginal justice is likely to vote.

Therefore, it is a source of pleasure to me whenever members of SCOTUS confirm my prejudices and rise above their "spatially" situated values. Observe, as a case in point, Justice Scalia's and Thomas' joining Ginsburg's dissent in Phillip Morris v. Williams. Could any attitudinalist model predict that these two conservative Republicans would be making a stand against the National Association of Manufacturers in favor of state power over punitive damages? Loyalty to federalism and hostility to judicial discretion in interpreting the due process clause surely explain their votes more than any constitutionally irrelevant "attitude." Likewise, Breyer's championing restrictions on juries surely rests on his love of technocracy over decentralized juries more than any fealty to the values of the Democratic Party or love of Big Tobacco.

Of course, one might ask whether federalism, suspicion of substantive due process, and a penchant for constraints on state juries count as non-legal "attitudes" or rather as legal principles. That distinction is the Achilles heel of attitudinalism: Political scientists have such a crude notion of law that they have a hard time figuring out how to model loyalty to legal principles, as opposed to "non-legal" ideology.

Until the poli sci types figure out how to draw this distinction with more refinement, I think that it is fair to say that Breyer's, Scalia's and Thomas's votes all count as evidence against the attitudinalist model. This is a cause for celebration to us lawyers who want to believe that "the Law" (whatever it might be) matters. So take that, Ted Ruger! Score one for the lawyers!