Robert R. Robinson

Punctuated Equilibrium and the Supreme Court

In the legislative and executive branches, policy scholars have used punctuated equilibrium (PE) theory to describe and explain patterns of change. However, there has been little examination of how PE might apply to courts and legal policy change. This paper addresses that gap by providing evidence that legal policy change — here conceptualized as changes in what precedents the Supreme Court most often cites — is governed by PE theory. After making a prima facie case for the applicability of PE theory to the Court, I leverage network rankings of Supreme Court decisions to create a proxy for legal policy change that improves on existing measures. Using both a stochastic process model and an analysis of the punctuations the measure uncovers, I find strong evidence of PE processes.

Beyond Liberal and Conservative: Advancing the Study of Judicial Behavior with a Cultural Theory of Political Values

A significant undiscussed problem with the leading conceptualization of ideologically based judicial behavior, Jeffrey Segal and Harold Spaeth’s attitudinal model, is its lack of theory. This problem leads to circular reasoning, ad hoc coding adjustments, and inaccurate characterizations and explanations of case outcomes, judicial votes and ideologies, and trends in judicial behavior. A values-based theory of ideology, such as the cultural theory pioneered by Mary Douglas, Michael Thompson, Aaron Wildavsky, and others, can help remedy this problem. Applying this cultural theory to First Amendment cases, we find that political cultures valuing equality, order, and liberty provide a more accurate account of judicial decisions than labeling them liberal or conservative.

Benefits and Burdens: The Supreme Court's Decision in Whole Woman's Health v. Hellerstedt (2016)

In 2013, Texas passed House Bill 2 (H.B.2), an abortion regulation with two key components: (1) requiring doctors who performed abortions to have obtained admitting privileges from a local hospital, and (2) mandating that all abortion facilities meet the same regulatory standards required of an ambulatory surgical center. In response to lawsuits by Texas abortion providers, on June 27, 2016, the Supreme Court held 5-3 in Whole Woman’s Health v. Hellerstedt that both provisions of H.B.2 unconstitutionally burdened a woman’s access to abortions [579 U.S. ___ (2016)]. The most important decision on abortion since Casey v. Planned Parenthood [505 U.S. 833 (1992)], Hellerstedt fundamentally reinterprets Casey’s undue burden test, the legal analysis courts apply to assess the constitutionality of abortion regulation. Justice Breyer’s majority opinion makes clear that undue burden analysis should not assess only the burdens such regulations create for women seeking abortions, but instead ask whether the burdens created are justified by the benefits the law confers. The adoption of this benefits– burdens balancing test marks a critical shift in the Court’s abortion jurisprudence, leaving behind the more deferential treatment of abortion regulation of recent years and potentially creating the most favorable legal climate for abortion rights since the 1980s.

Toward A Cultural Theory of Judicial Behavior: Identifying and Overcoming Limitations in the Attitudinal Model

Judicial ideology as conceptualized in the attitudinal model (AM) developed by Jeffrey Segal and Harold Spaeth remains the dominant explanation for US Supreme Court decisions. However, while there is consensus that judicial ideology is crucial in explaining Court behavior, the AM remains under-theorized, time-limited, and unresponsive to scholarly advances in the study of ideology. This paper argues that the cultural theory (CT) developed by Mary Douglas, Aaron Wildavsky, and others can help address these problems. CT promises to advance the study of judicial behavior by providing a theory of ideology, rather than only the application of ideological labels, and by providing a two dimensional account of ideological behavior that avoids the anomalies that arise from relying on the AM’s one dimensional, liberal-conservative conception. To illustrate problems with the AM and the plausibility of our proposed CT solution, we compare explanations provided by both approaches for Court interpretations of First, Fourth, and Fourteenth Amendment rights. In each constitutional area, the attitudinal orientations specified by CT — that is, egalitarian, hierarchical, and individualistic cultural biases valuing equality, order, and liberty, respectively — provide a richer and more valid account of judicial attitudes and legal change than liberalism and conservatism alone.