Mark J. Richards

Jurisprudential Regimes in Supreme Court Decision Making

We theorize that if law matters in Supreme Court decision making, it matters not as a mechanistic force that dictates decisions, but as an institutional construct created by justices who possess political attitudes. Jurisprudential regimes identify relevant case factors and/or set the level of scrutiny or balancing the justices will use. These jurisprudential regimes have the potential to make a significant difference in the decisions of the justices. We identify a candidate jurisprudential regime, content-neutrality, which appears to govern the general area of free expression law. The Court applies the strictest standard of review to regulations of expression that target the content or viewpoint of expression. Relying on a series of statistical tests using logistic regression, we find that the justices take seriously this jurisprudential regime.

THE INFLUENCE OF LAW IN THE SUPREME COURT'S SEARCH-AND-SEIZURE JURISPRUDENCE

In this research note/replication, we apply the construct of jurisprudential regimes as described in our recent article to the jurisprudential area of search and seizure. Given the centrality of this area of Supreme Court decision making in the core studies supporting the attitudinal model, replicating our analysis of the jurisprudential regime construct in this area provides an important test of the concept. Our results produce strong support for the proposition that post-Mapp decision making can be separated into distinct regimes, with a set of important cases decided in 1983-1984 demarcating the regimes. The predictors of decisions in the two periods are consistent with the types of changes one would expect the regime shift to produce. Our findings challenge the attitudinalists’proposition that there is at best negligible statistical evidence that law influences Supreme Court decision making.

Taking and Testing Jurisprudential Regimes Seriously: A Response to Lax and Rader

Lax and Rader critique our use of the Chow test in our series of articles on jurisprudential regimes on the grounds that individual justices votes are not statistically independent, which constitutes a violation of assumptions underlying the Chow test. In this response we point out that the Chow tests constituted only one part of our analysis; we also conducted a sensitivity analysis to look at the strength of the Chow tests compared to other sequential splits. Most importantly, we required that the observed statistical patterns of change be theoretically consistent with the legal changes made by the regime changing decisions; we note two areas where we did preliminary analyses that produced statistically significant results, but where those results did not make sense in light of the jurisprudence. We repeat both our Chow tests and individual interaction tests taking into account the clustering of observations. Our reanalysis provides support for some, but not all, of our original results.

The Changing Treatment of Content-Based Cases

The story of the development of the content-neutrality jurisprudential regime is not a linear narrative of progress. As Chapter 3 reveals, the justices established some important precedents prior to 1972 that helped to justify the creation of the content-neutrality regime in Mosley and Grayned (Police Department of Chicago v Mosley, 408 US 92, 1972; Grayned v City of Rock ford, 408 US 104, 1972). In the period prior to 1972, however, there were also many cases in which a majority of the justices turned a blind eye to government discrimination against the content of expression. For example, despite the protests of Justices Hugo Black and William Douglas, there was a series of cases in which the Supreme Court allowed the government to discriminate against alleged communists in a content-based manner. After 1972, the justices used the content-neutrality regime to protect freedom of expression from the government’s content-based discrimination, but even after 1972, there were cases in which a majority of the justices chose to allow contentbased regulation of expression. In this chapter, I use an interpretive lens to qualitatively analyze key examples of how the justices treated content-based cases before and after the content-neutrality regime was established.

Jurisprudential Regime Theory

Jurisprudential regime theory is a comprehensive theory of Supreme Court decision-making that provides a coherent framework for incorporating attitudinal, strategic and jurisprudential factors. In this chapter, I provide a detailed look at this theory, and show how it builds on, challenges and contributes to the Supreme Court decision-making literature. I explain how political jurisprudence and neoinstitutionalism provide the theoretical underpinnings for jurisprudential regime theory. I elucidate how and why the justices use jurisprudential regimes. I conclude with a discussion of the main criticisms and limitations of the theory. Although jurisprudential regime theory is not suitable for explaining every area of Supreme Court decision-making, it does have the advantage of testing for a wider variety of factors than the attitudinal model does. In particular, it is well suited for explaining the justices’ freedom of expression decision-making, because it incorporates attitudes, jurisprudence and strategic factors into a single framework. An attitudinal approach which left out the content-neutrality jurisprudence would be an incomplete explanation, so jurisprudential regime theory guides the statistical and interpretive analyses I perform in subsequent chapters.

The Content-Neutrality Jurisprudential Regime

Jurisprudence is a critical component of Martin Shapiro’s concept of political jurisprudence and is equally important to the construct of a jurisprudential regime. Content-neutrality is the key jurisprudential regime for freedom of expression law. In this chapter, I focus on the jurisprudential side of jurisprudential regime theory, tracing the origins, justification and development of the content-neutrality jurisprudence (Richards and Kritzer, 2002).

Statistical Methodology and Results

In the preceding chapters, I have argued that the justices of the US Supreme Court are likely to take into account a variety of factors as they decide the free expression cases: content-neutrality, their own political attitudes, the level of government that is party to the case or participates as a friend of the court (amicus curiae), the identity of the speaker and the type of legal action taken against the speaker. How can these factors be measured and modeled in a theoretically and statistically meaningful way? Do these factors actually matter? And how much do they matter? These are the questions to which I now turn.

The Contours and Limits of the Content-Neutral Cases

Chapter 6 continues my interpretive examination of cases, with a look at content-neutral laws, following the same interpretive methods I set out at the start of Chapter 5. In Chapter 4, my statistical analysis showed two patterns for content-neutral laws that are consistent with my expectations for the content-neutrality jurisprudential regime. The first is that after the content-neutrality regime was established, the justices were more likely to uphold content-neutral laws than content-based laws. Content-neutral laws were not given a free pass, however. Since 1972, such regulations of expression have been subject to intermediate scrutiny, which is a fairly demanding standard of review for the government to meet, so the second pattern is that the justices were more likely to uphold content-neutral laws prior to the content-neutrality regime being established in 1972 than they were after 1972.