Check Mike Check Sound Circulate Attendance

1. Check Mike Check Sound Circulate Attendance Time

2. Today’s Lecture: • Behavioral Theories • Ideology & Games • Regime Theory

3. Class Announcements Quality Points For those who answered the survey question late, your quality points will be posted later today

4. Class Announcements Papers -- All papers are due May 5th, in person (no emailed papers)

5. Class Announcements Last Quiz -- Your last quiz will be posted on Monday, April 28th. -- Deadline to submit questions will be Thursday, April 24th Questions?

6. Empirical Theories of Supreme Court Behavior intro -- people who study the Supreme Court have developed several theories that they think best explains decision making -- The theories are as follows: Ideology Theory” (sometimes called “attitudinal model”) Game Theory (an important sister school Regime Theory Structuralism

7. Empirical Theories of Supreme Court Behavior Ideology theory • -- this theory proclaims that a supreme court justice’s political ideology is what controls his or her decision • -- we’ve already seen the challenges that this view has: • What do they mean by “ideology?” Sometimes, this is an “innocent” idea that doesn’t mean very much (framework?) (first principles?) If it means something critical about epistemology or psychology, proponents would need to put forth more evidence for this view (hard to do empirically)

8. Empirical Theories of Supreme Court Behavior Ideology theory • -- this theory proclaims that a supreme court justice’s political ideology is what controls his or her decision • -- we’ve already seen the challenges that this view has: • What do they mean by “ideology?” • What is an example of someone not using it? • How can this actually be turned into an empirical project? • The measures created by proponents of this theory show that only about 12.5% of the decisions are accounted for • My view: it isn’t clear that the question is helpful.

9. Empirical Theories of Supreme Court Behavior Game Theory --There is a school of thought that says that justices often have to defect from their ideal preference in a case because of other actors in government -- e.g., they sometimes water-down or shun their ideal preference because they need to get 5 votes in order to win the case. So, e.g., to obtain more “conservative” members, a “liberal” justice might have to water down the doctrine announced in the decision

10. Figure 1.2: Strategic Policy Bargaining XL3XL2XL1Xc1Xc2Xc3 ABC Let’s pretend we have a 3 justice Court; one liberal, two conservative. Let’s pretend that an issue has various resolutions to the right or left of each of the justices (The Xs represent possible doctrinal alternatives. XL3 means X liberal-three)

11. Hypothetical Continuum

12. Hypothetical Continuum J1 J2J3

13. Hypothetical Continuum J1 J2J3 Somewhat liberal

14. Hypothetical Continuum J1 J2J3 Somewhat liberal Somewhat conservative

15. Hypothetical Continuum J1 J2J3 Somewhat liberal Somewhat conservative Extremely conservative

16. Hypothetical Continuum Let’s add an array of policy positions … J1 J2J3

17. Hypothetical Continuum J1 J2J3 XL3 XL2 J1 XL1 Xc1 Xc2 J2Xc3 J3

18. Hypothetical Continuum 1 2 3 4 5 6 J1 J2J3 XL3 XL2 J1 XL1 Xc1 Xc2 J2Xc3 J3 Most Liberal Outcome Possible

19. Hypothetical Continuum 1 2 3 4 5 6 J1 J2J3 XL3 XL2 J1 XL1 Xc1 Xc2 J2Xc3 J3 Most Conservative Outcome Possible

20. Hypothetical Continuum 1 2 3 4 5 6 J1 J2J3 XL3 XL2 J1 XL1 Xc1 Xc2 J2Xc3 J3 One step away

21. Hypothetical Continuum 1 2 3 4 5 6 J1 J2J3 XL3 XL2 J1 XL1 Xc1 Xc2 J2Xc3 J3 Two steps away

22. Hypothetical Continuum 1 2 3 4 5 6 J1 J2J3 XL3 XL2 J1 XL1 Xc1 Xc2 J2Xc3 J3 One step away

23. Hypothetical Continuum 1 2 3 4 5 6 J1 J2J3 XL3 XL2 J1 XL1 Xc1 Xc2 J2Xc3 J3 Three steps away

24. Hypothetical Continuum 1 2 3 4 5 6 J1 J2J3 XL3 XL2 J1 XL1 Xc1 Xc2 J2Xc3 J3 Equal Utility

25. Figure 1.2: Strategic Policy Bargaining XL3XL2XL1Xc1Xc2Xc3 ABC Let’s focus on this justice Question: How can this judge maximize his or her happiness?

26. Figure 1.2: Strategic Policy Bargaining UL UC XL3XL2XL1Xc1Xc2Xc3 ABC Notice he or she is equally happy with either option X(c2) or X(c3) Let us this is utility point L and utility point C, because each is to the left and right of his ideal views.

27. Figure 1.2: Strategic Policy Bargaining UL UC XL3XL2XL1Xc1Xc2Xc3 ABC B has options. He or she can offer the liberal utility point in order to induce A’s “vote,” thereby having a majority. If offered, A would accept because it is the lesser of two evils. Otherwise, B can go with the conservative utility point and obtain C’s vote

28. Real Applications 1. Justice Brennan in Miranda Cases 2. Gender discrimination cases – “quasi-suspect classification”

29. Empirical Theories of Supreme Court Behavior Game Theory --There are two types of constraints that are theorized to exist Internal Constraints -- Justices take into consideration the views of other justices in order to create majority support External Constraints -- Justices takes into consideration views of other government actors in the system in order to avoid being “sanctioned”

30. Empirical Theories of Supreme Court Behavior Game Theory External Constraints -- For example, justices may not want to attack Congress too harshly because it might mean a reduction in their budget -- Or, they might not want to get overturned in a statutory matter (explain).

31. Empirical Theories of Supreme Court Behavior Regime Theory -- Of all the “political theories” that are out there, regime theory is the most elegant as far as I am concerned -- Regime theory is very practical -- It doesn’t adopt skepticism as an outlook

32. Empirical Theories of Supreme Court Behavior Regime Theory definition -- It simply says that when generations battle over politics, that people from that set of experiences will ascend to the Court and etch their generation’s views into law -- The idea is that the Court is indirectly connected to the political process, and that when generations come to dominate the political process, distinct eras of the Court will emerge that parallel issues from that generational struggle

33. Political Culture: Political Process or Structure Alpha Values Beta Values Generational Victor Stamps the Court

34. Empirical Theories of Supreme Court Behavior Regime Theory three things: Spoils • -- Note that this is a spoils theory. To the victor goes the spoils. If a political generation wins the presidency enough times (and has enough support in the Senate), they get to “stamp” the Court.

35. Empirical Theories of Supreme Court Behavior Regime Theory three things: Lag effect • -- Note also that there is a lag effect. That if this theory is true, the justices from the previous generation’s victories will hang around on the Court while the next generation is conducting its battle • (e.g., many 1960s Warren court justices stayed throughout the Reagan years) • (e.g., many Rehnquist court justices from Nixon and Reagan stayed throughout Clinton’s years)

36. Empirical Theories of Supreme Court Behavior Regime Theory three things: Discreet policy phenomenon • -- Note that this theory doesn’t say that justices are clones of their appointing president or even of any particular ideology. • -- Rather, it only says that key “hot-button” issues that define a generation will be very influential in the justice’s mind when he or she judges those issues.

37. Empirical Theories of Supreme Court Behavior Regime Theory three things: Discreet policy phenomenon • -- it says that justices will want to innovate and define law in a way that resolves those struggles consistent with the party that won them in the political arena

38. Empirical Theories of Supreme Court Behavior Regime Theory Examples • -- Federalists created the Marshall Court. • Key issue: strengthening national institutions (Marbury v. Madison; McCullough v. Maryland; Gibbons v. Ogden). • -- Jacksonians created the Taney Court. • Key issue: strengthening slavery and the way that plantation society made its money. (Dred Scot; Ex Parte Merryman, etc.).

39. Empirical Theories of Supreme Court Behavior Regime Theory Examples • -- Laissez Faire period of the Court. • Key issue: strengthening the new capital-intensive goliaths that arose after the Civil War following the industrial revolution • -- The New Deal and Warren Court • Key issue: strengthening federal power expanding certain civil liberties protections for individuals (in areas other than guns or property).

40. Empirical Theories of Supreme Court Behavior Regime Theory Examples • -- The Anti-Warren Court • Key issue: putting the breaks on the Warren Court. Trimming some decisions and refusing further expansion

41. Empirical Theories of Supreme Court Behavior Regime Theory The normative issue Question: Assuming that regime theory is true, is that good or bad? Is it good for political generations to stamp the Court with their most salient concerns? Question: Did the Warren Court misbehave? Question: Did the anti-Warren Court misbehave? Question: If regime theory is true, is judging still special? Question: Did the Taney Court misbehave?

42. Empirical Theories of Supreme Court Behavior Regime Theory What evidence is there for it? • -- Let’s take a look at the liberal ratings of justices and their presidents …

43. 70 100 95 90 85 80 75 65 60 55 50 35 30 25 20 15 10 05 00 45 40 FDR’s Picks

44. 70 100 95 90 85 80 75 65 60 55 50 35 30 25 20 15 10 05 00 45 40 Truman’s Picks

45. 70 100 95 90 85 80 75 65 60 55 50 35 30 25 20 15 10 05 00 45 40 FDR/Truman Regime?

46. 70 100 95 90 85 80 75 65 60 55 50 35 30 25 20 15 10 05 00 45 40 EisenhowerRegime?

47. 70 100 95 90 85 80 75 65 60 55 50 35 30 25 20 15 10 05 00 45 40 Kennedy

48. 70 100 95 90 85 80 75 65 60 55 50 35 30 25 20 15 10 05 00 45 40 Kennedy/ Johnson Regime?

49. 70 100 95 90 85 80 75 65 60 55 50 35 30 25 20 15 10 05 00 45 40 Clinton Appointees

50. 70 100 95 90 85 80 75 65 60 55 50 35 30 25 20 15 10 05 00 45 40 Nixon