In Bostock, Gorsuch reaches the semi-mystical conclusion that any word or concept having to do with “sex” may constitute “sex discrimination."
I’ve spent the last couple of posts discussing the so-called “attitudinal model” of judicial behavior in political science. The model posits that judges, particularly Supreme Court justices (being less constrained than trial and appellate judges), implement their political preferences in their decisions. It is a theory not of how judges should behave, but aims to describe how judges in fact behave.
On the one hand, just about every political scientist studying judicial behavior today agrees judges (and particularly justices) sometimes implement political preferences in their decisions. That’s not a novel position; Alexander Hamilton conceded as much over two centuries ago in Federalist 81. The open question in the subfield is just how much influence judges’ political opinions have on their judicial decisions.
I tend to be relatively conservative on that score. Quibbles about measures aside, I generally accept the statistical associations that attitudinalists report between measures of judges’ political ideologies and their decisions. That said, I do not believe those empirical results justify the causal jump attitudinalists make regarding ideology and judicial decisions. No need to rehearse those arguments again here.
What prompted the discussion in my last two posts was a passing comment by L&L contributor John O. McGinnis regarding Justice Gorsuch siding with the Court’s liberals in Dimaya v. Sessions. McGinnis wrote Gorsuch’s opinion shows “originalism cannot be captured by [the] attitudinal model which sees judges as politicians in robes voting for policies they like.”
My response was “Yes. . . . But.” My last two posts were the “Yes” part, agreeing with McGinnis’s claim, although perhaps on different bases than his. This post is the “But” part regarding his claim, at least after a little more “Yes.”
First the little more “yes.” We first need to move past naïve forms of attitudinalism, which is pretty much what attitudinalism there is. But I think a more theoretically sophisticated form of attitudinalism could be constructed that could get around McGinnis’s claim (notwithstanding my other criticisms of attitudinalism).
Simple, or naïve, attitudinalism posits Supreme Court justices vote their policy preferences in each specific case they decide. Yet if justices indeed pursue policy outcomes in their decisions, the belief that justices vote their policy preferences in each specific case makes no sense. Justices who seek to maximize achievement of their substantive policy preferences in their judicial decisions will not necessarily vote for the substantive outcome they prefer in a particular case.
In recent years the U.S. Supreme Court hears about 80 cases per term. The actual legal decision in these few cases binds only the specific parties to the dispute. While some cases are more significant than others, that’s still not necessarily a huge amount of political influence relative to the influence the precedent will have on scores, or even hundreds, of related cases that are not heard by the Supreme Court. Even thinking of actual cases ignores the policy impact Supreme Court precedents can have: Precedent influences not only actual cases, but affects behavior that never rises to the level of litigation. Competent legal counsel can advise clients in light of the precedent to behave in a way that leaves them without risk of litigation.
This broader policy impact of precedent can swamp the policy impact of resolving a legal dispute between the two litigants in a case actually before the Court.
As a former doctoral student of mine, McKinzie Craig Hall, now at the University of Louisiana at Lafayette, showed in her dissertation that judges’ intent on their decisions impacting policy would naturally consider these precedential effects. In announcing new standards of review or legal criteria – for example, tightening standards of when a law might be considered unconstitutionally vague – a justice could easily vote against the substantive interests of a party his or her ideology would otherwise support in the interest of having new standards or rules that apply to the hundreds, if not thousands, of other cases that never reach the Court.
Her argument basically is that attitudinalism as a theory regarding the case-specific votes of Supreme Court justices is in fact inconsistent with the principal attitudinalist claim of justice votes being motivated by policy.
Accepting this broader notion of the policies Supreme Court justices seek to achieve in their decisions, on revised-attitudinalist grounds, Gorsuch could have cast his vote not with an eye to extending protections for resident aliens, but rather with an eye to limiting the reach of government power over individuals and businesses more generally. The tightened void-for-vagueness rules, on this reading, protects broader interests that Gorsuch wishes to protect beyond the litigants in the specific case.
Now, to be sure, McGinnis argues it is not Gorsuch’s vote that is important, but rather Gorsuch’s reasoning in his opinion. But this does not respond to attitudinalist claims. Attitudinalists regard judicial opinions as mere epiphenomena, whether originalist or not. For them, “legal reasoning” is simply the rhetorical dress that convention requires justices to use to justify imposing their policy preferences on the rest of us.
This need not be quite the cynical claim it might appear to be. The relatively few cases the Supreme Court decides each year are rarely heard merely because the justices believe the case was wrongly decided by the lower courts. They require additional characteristics that merit the Court’s scarce time. This often means each sides of the case has strong arguments, often splitting circuits on application of the law. This indeterminacy can provide cover for political decision making no matter the particular legal philosophy a judge might implement. Indeed, in Dimaya, Justice Thomas came to the opposite conclusion than Gorsuch, also on originalist grounds.
Don’t get me wrong. I’m not claiming Gorsuch’s political attitudes motivated his vote, let alone his opinion. The point rather is that we need more than Gorsuch’s opinion in the case to conclude that “originalism cannot be captured by [the] attitudinal model which sees judges as politicians in robe voting for policies they like.”