The Context of Ideology: Law, Politics, and
Empirical Legal Scholarship
Carolyn Shapiro
1
In their confirmation hearings, Chief Justice Roberts and Justice Sotomayor both articulated a vision of the neutral judge who decides cases without resort to personal perspectives or opinions, in short, without ideology. At
the other extreme, the dominant model of judicial decisionmaking in political
science has long been the attitudinal model, which posits that the Justices’
votes can be explained primarily as expressions of their personal policy preferences, with little or no role for law, legal reasoning, or legal doctrine.
Many traditional legal scholars have criticized such scholarship for its
insistence on the primacy of ideology in judicial decisionmaking, even as
empirical legal scholarship has grown in significance and influence in the
legal academy. Recently, however, empirical scholars and traditional legal
academics have begun to engage in serious discussions with each other about
how to think about and evaluate the balance between law and ideology and
about how to harness the powerful tools of quantitative analysis to study such
questions. In this Article, I offer several contributions to this discussion.
First, the Article evaluates current efforts by empirical scholars to identify the ideological character of cases. These efforts generally assume that
the ideological character of a case can be determined by reference to a single
liberal-conservative spectrum, and they generally presume that all or most
cases present only a single issue. Through a recoding and quantitative analysis of a random sample of recent Rehnquist Court cases, as well as through
a qualitative analysis of many of the cases, I establish concretely some of the
limitations of these efforts. Specifically, I demonstrate that these approaches
are indeterminate and oversimplified, and often prevent scholars from identifying cases in which the Justices face issues that pull them in different ideological directions. At the same time, however, I identify their strengths, particularly the strengths of approaches that leverage information derived from
the Justices’ actual voting patterns.
1. Assistant Professor of Law, Chicago-Kent College of Law; Affiliated Scholar, American Bar Foundation. For comments and discussion at various stages of this
project, thanks are due to Joshua Fischman, Joshua Karsh, David Klein, Robin Lenhardt, Gregory Mitchell, Mark Rosen, Matthew Sag, Christopher Schmidt, and David
Schwartz. I am also very grateful to Paul Edelman, David Klein, and Stefanie Lindquist for sharing their data with me, and to Matthew Sag, Andrew Martin, and Joshua
Fischman for answering my questions about their work. Exceptional research assistance was provided by Jerry Thomas. Thanks also to Tom Gaylord for his superb
library assistance.
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Finally, I propose a new approach for empirical scholars interested in
studying the role of ideology in Supreme Court cases. Rather than starting
with the assumption that ideology is the most important factor in Supreme
Court decisionmaking, my approach focuses on just how important ideology
was to the Justices in a particular case. Measuring ideological salience, I
argue, would allow empirical scholars to study the empirical question of
when and how ideology – and other factors – affects decisionmaking. Doing
so would also open the door to a wide variety of important and interesting
research questions. Most importantly, this approach would allow empirical
scholars to engage with more traditional legal academics in the important
normative debates about when and how ideology should play a role in the
work of the Supreme Court.
I. INTRODUCTION ......................................................................................... 81
II. CODING CASE IDEOLOGY ........................................................................ 85
III. OUTCOME CODING ................................................................................. 91
A. How It Works and How It Doesn’t ................................................... 91
1. The Supreme Court Database .................................................... 91
2. Challenging the Database’s Issue and Ideology Codes.............. 94
B. The Recoding Project ....................................................................... 97
1. Quantitative Analysis ............................................................... 100
Table 1: Ideology Coding for 95-Case Sample
in U.S. Supreme Court Database and Recoding Project ............... 101
Table 2: Factors Tested for Effect on
Likelihood of Mixed Ideology in Recoded Cases......................... 103
2. Qualitative Analysis ................................................................. 104
IV. BEHAVIORAL CODING .......................................................................... 111
A. A First Approach ............................................................................ 111
B. A Refinement: Identifying When There Are More Dimensions ...... 120
V. IDEOLOGICAL SALIENCE AND IDEOLOGICAL LEGITIMACY:
A WAY FORWARD? ................................................................................ 126
A. Defining Terms ............................................................................... 126
B. Is Measuring Ideological Salience Possible? ................................ 129
1. Possible Indicators of Ideological Salience ............................. 129
a. Distance from the Court’s Median. ................................... 129
b. Disordered Voting ............................................................. 130
c. Vote Margin. ..................................................................... 130
d. Other Possible Variables. .................................................. 131
2. Challenges in Using the Indicators .......................................... 131
C. Learning from Ideological Salience ............................................... 133
VI. CONCLUSION ........................................................................................ 134
APPENDIX A ................................................................................................ 136
Cases in Recoding Sample (Chronological Order) ............................. 136
APPENDIX B ................................................................................................ 139
Cases in Recoding Sample by Ideological Salience ............................ 139
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I. INTRODUCTION
Does ideology have a role to play in the work of the Supreme Court?
Chief Justice Roberts suggested that it does not when, during his confirmation
hearings, he described the judicial role as one of a neutral umpire “call[ing]
balls and strikes.”2 In Justice Sotomayor’s more recent confirmation hearings, she partially accepted this metaphor (although she said it is an “imperfect” analogy) and consistently rejected the notion that, as a Supreme Court
Justice, her personal experiences or perspectives would have a legitimate – or
even an inevitable – role to play in her work.3 These statements reflect a
view – widely expressed in public debates over judicial confirmations – that
law and legal reasoning can and will provide an objectively correct answer to
even the most difficult cases if only the judge is willing to put aside his or her
personal preferences and opinions – his or her ideology.
At the other extreme, the dominant model of Supreme Court decisionmaking in political science has long been the attitudinal model, which posits
that the Justices’ votes can be explained primarily as expressions of their
personal policy preferences, with little or no role for law, legal reasoning, or
legal doctrine.4 More recent and nuanced attempts to describe judicial ideology – attempts that focus not on case outcomes (as the attitudinal model does)
but rather on which Justices are in the majority and dissent in each case –
likewise fail to identify an explicit role for legal reasoning, precedent, or case
facts. For these scholars, judging on the Supreme Court is presumptively
about politics or ideology.5
2. Nomination of Judge John G. Roberts, Jr. to Be Chief Justice of the Supreme
Court: Panel One of a Hearing of the S. Judiciary Comm., 104th Cong. (2005)
(statement of Judge John Roberts).
3. Nomination of Judge Sonia Sotomayor to Be Associate Justice of the Supreme Court: Panel One of a Hearing of the S. Judiciary Comm., 106th Cong. (2009)
(statement of Judge Sonia Sotomayor).
4. See generally JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT
AND THE ATTITUDINAL MODEL REVISITED (2002).
5. The attitudinal model’s chief competitor in political science, the strategic
model, does not dispute that the Justices seek to implement their policy preferences
but theorizes that, for strategic reasons, Justices may not vote (or write) in perfect
accord with those preferences. See generally LEE EPSTEIN & JACK KNIGHT, THE
CHOICES JUSTICES MAKE (1998). Rather, they behave strategically to try to get a
result as close as possible to their preferred outcome but within the constraints imposed by needing agreement among colleagues and (sometimes) by concerns about
the response of other governmental actors. Id. at 1. While somewhat more nuanced
than the attitudinal model, the strategic model likewise assumes that the Justices are
primarily motivated by ideological considerations, not law. See generally id. Of
course, these models are not the only ways that political scientists think about judicial
decisionmaking. See, e.g., Cornell W. Clayton, The Supreme Court and Political
Jurisprudence: New and Old Institutionalisms, in SUPREME COURT DECISIONMAKING: NEW INSTITUTIONALIST APPROACHES 15-41 (Cornell W. Clayton & Howard
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Despite their limitations, these approaches to studying the ideology of
Supreme Court cases and Justices are prominent in the burgeoning field of
empirical legal scholarship in part because they are conducive to large-scale
quantitative analysis. They also are good examples of two significant limitations of much empirical legal scholarship. First, as already mentioned, they
at best ignore and at worst reject any role for law in Supreme Court judging.
And second, they presume that the ideological nature of each case can be
characterized along a single liberal-conservative dimension. As a result,
these approaches generally offer no way to evaluate the possibility that a particular case might involve multiple issues or concerns that pull the Justices in
different directions and that require them to balance competing interests and
priorities.
As a result of these and other deficiencies, some might dismiss the
project of quantitative analysis as, at best, too reductive to be useful, and indeed some legal academics have criticized empirical legal scholarship for
such flaws.6 This Article, however, proceeds from the premise that the tools
of quantitative analysis can enrich the longstanding public and academic debates about ideology and judging by offering important information about
what the Justices actually do. For example, quantitative analysis might allow
us to evaluate the ways in which Justices vote in cases that turn on issues of
procedure. Do the votes vary systematically depending on the underlying
issues in the cases, and, if so, how? Quantitative analysis of such questions
can help scholars avoid basing broad conclusions about the respective roles of
ideology and law on a handful of high-profile but unrepresentative cases – a
danger to which both traditional legal scholarship and public debate are particularly susceptible. In order to answer such questions, however, we must
refine the way empirical scholars identify the ideological nature of cases,
Gillman eds., 1999); Howard Gillman, What’s Law Got to Do with It? Judicial Behavioralists Test the ‘Legal Model’ of Judicial Decision Making, 26 LAW & SOC.
INQUIRY 465 (2001); Mark J. Richards & Herbert M. Kritzer, Jurisprudential Regimes
in Supreme Court Decision Making, 96 AM. POL. SCI. REV. 305 (2002); Herbert M.
Kritzer & Mark J. Richards, Jurisprudential Regimes and Supreme Court Decisionmaking: The Lemon Regime and Establishment Clause Cases, 37 LAW & SOC’Y REV.
827 (2003); Stefanie A. Lindquist & David E. Klein, The Influence of Jurisprudential
Considerations on Supreme Court Decisionmaking: A Study of Conflict Cases, 40
LAW & SOC’Y REV. 135 (2006).
6. See, e.g., FRANK B. CROSS, LAW IS POLITICS (forthcoming 2009) (manuscript
at 9-10) (prepared for presentation at the “What’s Law Got to Do With It?” Conference, Indiana University, 2009); Harry T. Edwards & Michael A. Livermore, Pitfalls
of Empirical Studies That Attempt to Understand the Factors Affecting Appellate
Decisionmaking, 58 DUKE L.J. 1895 (2009); Brian Z. Tamanaha, The Distorting Slant
in Quantitative Studies of Judging, 50 B.C. L. REV. 685 (2009); Gregory C. Sisk, The
Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making, 93 CORNELL L. REV. 873 (2008).
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THE CONTEXT OF IDEOLOGY
83
making possible acknowledgment and empirical assessment of the cases’
legal content.
Fortunately, traditional legal academics, who generally engage in qualitative analysis of cases and doctrines, and empirical legal scholars, who use
large-scale quantitative techniques, have recently begun to engage in serious
discussions with each other about how to think about and evaluate the balance
between law and ideology.7 What is missing in many of these discussions,
however, is an effort to use the tools of quantitative analysis to engage with
actual cases at a level of detail that allows for more nuanced understandings
of the interactions between law and politics (or policy, or ideology) and of the
interactions among different areas of law and between law and other considerations. There are notable and creative exceptions to this trend, but those
works generally focus on particular questions or areas of the law, such as
workplace law, tax law, or intellectual property.8 In this Article, in contrast, I
engage with a cross-section of cases in order to struggle with and evaluate
methods of identifying or describing ideology and the role it plays in the cases. And I conclude that quantitative scholars must think about how to identify the ideological valence of Supreme Court cases in entirely new ways.
Specifically, I argue that rather than assuming that the ideological character
of cases is the cases’ most important aspect, we should evaluate whether and
to what extent ideology plays a role.
The Article proceeds in four substantive parts. Part II provides the basic
context of the inquiry into attempts to identify the ideological character of
Supreme Court cases. In this Part, I explain some of the reasons scholars
want to characterize the ideological nature of cases, and I describe and critique in general terms the two most common approaches: Outcome Coding,
which assigns a liberal or conservative label to each case depending on its
outcome, and Behavioral Coding, which focuses on the voting patterns of the
Justices. Part III carries the critique of Outcome Coding a step further. In
this Part, I discuss the widely used U.S. Supreme Court Database, which as-
7. Two recent conferences illustrate this development. In March 2009, Indiana
University at Bloomington hosted an interdisciplinary conference entitled “What’s
Law Got to Do With It?” The proceedings of that conference will be published in a
volume forthcoming from the Indiana University Press. In February 2009, the Duke
Law Journal hosted a symposium entitled Measuring Judges and Justice, 58 DUKE
L.J. 1173 (2009).
8. An outstanding recent example is James J. Brudney & Corey Ditslear, The
Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches
in Tax Law and Workplace Law, 58 DUKE L.J. 1231 (2009). In this fascinating article, following up on their previous work focusing on workplace law, the authors
examine the ways in which the Justices’ use of legislative history and canons of statutory construction compare in workplace law and tax law. See id.; see also, e.g., Matthew Sag et al., Ideology and Exceptionalism in Intellectual Property: An Empirical
Study, 97 CAL. L. REV. 801 (2009); Nancy Staudt et al., The Ideological Component
of Judging in the Taxation Context, 84 WASH. U. L. REV. 1797 (2006).
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signs either a liberal or a conservative ideology code to every Supreme Court
case since 1953 and which is the primary source of evidence for the attitudinal model. Part III also presents an in-depth recoding, discussion, and
analysis of a random sample of 95 cases decided by the last Rehnquist natural
court.9 This recoding vividly demonstrates how a presumption that each case
involves only one issue, coupled with binary liberal/conservative outcome
codes, masks important information about the cases’ ideological and legal
content and context. As a result, the Database’s ideology coding involves
subjective and unarticulated decisions, leading to great indeterminacy. In
fact, for more than a third of the recoded cases, under the Database’s basic
protocols, the ideological nature of the cases could have been coded as either
liberal or conservative, depending on what issue the coder assigned to the
case. Through a qualitative analysis of these cases, Part III also identifies
particular types of cases in which the Justices must reconcile competing
priorities and issues – ripe areas for future research.
Part IV details current efforts to use Behavioral Coding to identify the
ideological nature of particular cases. Behavioral Coding infers the ideological character of cases from the voting patterns of the Justices. In this Part,
through a qualitative analysis of some of the recoded cases, I examine some
of the strengths and weaknesses of these approaches. For example, I demonstrate some of the limitations of relying on a methodology that promises more
precision than it can actually provide and that elides the reality that the Justices often face cases that present multiple and competing issues. I also discuss, however, some of the benefits of leveraging information provided by
the Justices’ actual voting patterns.
Finally, in Part V of the Article, I propose a new way for quantitative
scholars to think about the role ideology plays in Supreme Court cases. Specifically, I suggest that rather than focusing – as most empirical scholars do –
on the ideological position of a case (liberal or conservative), we should look
at the extent to which the case in fact had ideological salience to the Justices
themselves. This proposal capitalizes on the insight – often pointed out by
traditional legal scholars and acknowledged by some quantitative scholars –
that many cases, even at the Supreme Court level, do not have a particularly
strong ideological component. If we can separate cases that the Justices
treated as largely non-ideological from those cases that were ideologically
salient, we can begin to analyze what influences the Justices’ decisionmaking
9. The term natural court refers to the Supreme Court during a period in which
there are no personnel changes. Saul Brenner, The New Certiorari Game, 41 J. POL.
649, 653 (1979). The last Rehnquist natural court lasted from the beginning of October Term (OT) 1994 through OT 2004 – a total of 11 years. It is sometimes referred
to as the Rehnquist 7 natural court, as it is the seventh natural court of Chief Justice
Rehnquist’s tenure. HAROLD J. SPAETH, THE ORIGINAL UNITED STATES SUPREME
COURT JUDICIAL DATABASE 1953-1997 TERMS 30 (2008), available at
http://www.cas.sc.edu/poli/juri/allcourt_codebook.pdf [hereinafter Codebook].
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in different circumstances. We can address such questions as when and how
law dominates, when and how ideology does, and whether other factors might
explain the Justices’ votes and opinions. In this Part, I identify and discuss a
number of factors likely to be useful in identifying ideological salience.
In Part V, I also describe some of the important benefits that a focus on
ideological salience would bring to empirical legal scholarship. For example,
it would allow quantitative scholars to investigate whether, how, and why
judicial behavior varies depending on the ideological salience of a case. A
focus on ideological salience would also allow quantitative scholars to consider why some cases have higher ideological salience than others and to
identify and study changes over time in the types of cases that are ideologically salient. Perhaps most importantly, a focus on ideological salience
would open the door to more meaningful normative discussions between traditional legal academics and empirical scholars about the appropriate role of
ideology in Supreme Court judging.
The truth about the roles of ideology and law in the work of the Supreme Court undoubtedly lies somewhere between the two extremes of the
neutral umpire and the lawless ideologue, both as an empirical and normative
matter. As Judge Posner explains, all judges, but especially appellate judges
and even more especially Supreme Court Justices, can and must sometimes
decide cases with reference to their perspectives, politics, experiences, and
intuition.10 This is because the law itself leaves areas of uncertainty – what
Posner calls “open areas” – in which judges must exercise discretion, weigh
competing interests, and make policy judgments.11 If we want to talk about
whether we think the Justices get the balance between law and ideology right,
then we have to know what balance they are in fact striking, when they allow
ideology to dominate, and how other factors influence their decisions.
II. CODING CASE IDEOLOGY
The role of ideology in the work of the Supreme Court, as well as of
lower courts, has long been of interest to scholars. However, “judicial ideology” is not a self-defining term, nor is there consensus about what, precisely,
it means.12 “Ideology” could refer to a desire for
10. RICHARD A. POSNER, HOW JUDGES THINK 81-87, 269 (2008).
11. Id. at 81-121. See also Joshua B. Fischman & David S. Law, What Is Judicial Ideology, and How Should We Measure It?, 29 WASH. U. J.L. & POL’Y 133, 13841 (2009) (making the same point and noting that, in many contexts, use of judicial
discretion is mandated by the law).
12. See generally CROSS, supra note 6; LAWRENCE BAUM, LAW AND POLICY:
MORE AND LESS THAN A DICHOTOMY (forthcoming 2009) (prepared for presentation
at the “What’s Law Got To Do With It?” Conference, Indiana University, 2009);
Fischman & Law, supra note 11, at 137-38.
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a particular policy outcome – a world characterized by less environmental degradation, or of less regulation, or of greater or lesser
levels of immigration. Alternatively, the term “ideological” could
describe a tendency to favor or disfavor certain types of parties –
criminal defendants, police officers, corporations, members of ethnic or religious minorities, the disabled, and so forth. Indeed, the
breadth of the concept of “ideology” even makes it possible to
speak of both political ideology and legal ideology. To say that a
certain type of judicial behavior is “ideological” need not mean
that it is ideological in a political sense . . . . [A]djudication driven
by ideas about the role of law and the responsibilities of judges
might by contrast be characterized as both “legal” and “ideological” in character.13
Due to this range of possible meanings, some scholars have defined ideology in functional terms. “Ideology” could, for example, refer to “an overarching framework of beliefs, with sufficient consistency among constituent
belief elements that knowledge of an individual’s ideology allows for prediction of his or her views on related topics.”14 Still other scholars think of ideology in more purely political terms, distinct from legal or jurisprudential
philosophy: some judges are liberal, others conservative.15 For the purposes
of this Article, a working understanding of what is meant by judicial ideology
falls somewhere between these latter two ideas. Judicial ideology here refers
to judges’ extralegal “beliefs and intuitions,”16 which can and often do form a
general framework or orientation influencing decisionmaking, frequently but
not always correlating to more general understandings of political ideology.
To understand the significance of this working definition as a practical
matter, it is helpful to consider some of the kinds of questions that scholars
interested in judicial ideology have asked. Some have focused on the relationship between judges’ or Justices’ political orientations when appointed
and the way that they vote once on the bench. For example, if certain Justices
were described by newspaper editorials as very liberal (or conservative) before they were confirmed,17 or if those Justices were appointed by a Demo13. Fischman & Law, supra note 11, at 138.
14. Sag et al., supra note 8, at 804.
15. SEGAL & SPAETH, supra note 4, at 86 (“Simply put, Rehnquist votes the way
he does because he is extremely conservative; Marshall voted the way he did because
he was extremely liberal.”).
16. POSNER, supra note 10, at 79.
17. This measure is known as the Segal-Cover scores and has been widely used
because it is a measure of a Justice’s ideology that is completely independent of any
votes the Justice makes on the Court. Jeffrey A. Segal & Albert D. Cover, Ideological Values and the Votes of U.S. Supreme Court Justices, 83 AM. POL. SCI. REV. 557,
559-61 (1989). Of course, it also is unable to capture any changes or evolution in the
Justice’s views once confirmed. Fischman & Law, supra note 11, at 173. Judicial
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THE CONTEXT OF IDEOLOGY
87
cratic (or Republican) President, can we then predict how they will vote?18 In
some cases? In cases involving certain legal issues only? In all cases? Other
scholars have attempted to answer questions about judicial ideology by looking at the Justices’ behavior on the bench. If we know that Justice X rarely
votes in favor of criminal defendants, what (if anything) does that tell us
about how Justice X is likely to vote in intellectual property cases, for example, or First Amendment cases?19 Or if two particular Justices generally vote
together and often are the only two in dissent in certain types of cases, can we
make predictions about how they might vote in other categories of cases?
All of these questions require researchers to have not only some information about the Justices’ ideological orientations – whether gleaned from
newspaper editorials, party of appointing President, or voting patterns – but
also information about the ideological nature of the Justices’ votes, opinions,
or holdings. Put concretely, if we want to know if Justices appointed by
Democratic Presidents generally vote more liberally than Justices appointed
by Republican Presidents, then we need to be able to evaluate whether particular votes or opinions are more liberal or more conservative than others. It is
this question – how we should identify (or, in the language of empirical legal
studies, “code”) the ideological nature of cases (“case ideology”) – on which
this Article focuses.
The two primary approaches to coding case ideology focus on the votes
and/or outcomes in cases and not on the content of the opinions. Some scholars assign an ideology code to the case outcome (or the outcome for which a
Justice voted). Outcome can be defined by a variety of factors, such as which
party wins, whether a statute is upheld or struck down, or the type of claim at
issue, but, crucially, it is (in theory) independent of information about which
Justices vote which way. So, for example, the U.S. Supreme Court Database
assigns a liberal code to case outcomes (or votes) in favor of criminal defendants. I refer to this kind of coding as “Outcome Coding.”
Other scholars look at the voting patterns of the Justices over time with
reference to each other and derive ways of describing case ideology from
those voting patterns. Although these approaches often use highly sophisticated statistical methods, we can begin our discussion of them with a conceptual description. Knowing nothing about a case other than that Justices Scalia, Thomas, and Rehnquist were in the majority and that Justices Souter and
Stevens were in dissent, most observers likely assume that the outcome of the
common space scores, another widely used measure of judicial ideology, have some
of the same strengths and weaknesses. These scores rely on ideology measures of the
appointing President as well as of a judge’s home state senators at the time of appointment where those senators are of the same party as the President. Michael W.
Giles et al., Picking Federal Judges: A Note on Policy and Partisan Selection Agendas, 54 POL. RES. Q. 623 (2001).
18. Fischman & Law, supra note 11, at 166-72.
19. See, e.g., Sag et al., supra note 8 (evaluating whether judicial ideology predicts votes in intellectual property cases); Nancy Staudt et al., supra note 8.
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case is conservative. This assumption arises from information we have about
the Justices’ behavior on the bench rather than from any identification of the
case outcome itself, from any other characteristics of the case, or, for that
matter, from information about how the Justices were expected to vote by
editorialists or their appointing Presidents.20 I will refer to this kind of coding
as “Behavioral Coding.”21
These approaches share several important limitations.22 First, they both
focus on the votes and/or outcomes in cases and not on the content of the
opinions. As a result, factors such as legal reasoning, precedent, and case
facts play no explicit role in describing the ideological character of the case,
nor is there an attempt to account for law, jurisprudential approaches, or institutional concerns as constraining, channeling, or motivating forces.23 Second,
implicit in these approaches is an assumption that the Justices generally vote
sincerely, not strategically, or that we can legitimately treat those votes as
sincere even if the Justices do vote strategically.24 And third, these approaches all assume that there is a single dimension – liberal to conservative – along
which all cases’ ideological character can be measured. In fact, for the Outcome Coding used in the U.S. Supreme Court Database, not only is the ideology coding unidimensional, but it is also binary – either liberal or conservative.25
The recent Voting Rights Act case, NAMUDNO v. Holder,26 provides a
useful example of the complications inherent in trying to identify a case’s
ideological character while operating within these limitations.
In
NAMUDNO, a small Texas municipal district wanted to avoid the restrictions
of Section 5 of the Voting Rights Act.27 Section 5 requires voting districts in
certain parts of the country, including Texas, to obtain “preclearance” from
the U.S. Department of Justice before making any changes that affect vot-
20. In fact, a measure like party of appointing President would not help here, as
all five Justices mentioned were appointed by Republican Presidents.
21. Fischman & Law, supra note 11, at 176-83 (describing “behavioral measures” of judicial ideology). When describing the coding of cases, Fischman and Law
refer to this kind of coding as “agnostic coding” because it “does not require the researcher to make a subjective assessment of the direction of each outcome.” Id. at
162.
22. I discuss here three significant structural limitations. These and other limitations are discussed in more detail infra, Parts II & III.
23. See id.
24. Political scientists often distinguish between sincere and strategic voting.
Sincere voting means that judges vote their ideological preferences regardless of the
effect that it will have on the final result. Strategic voting occurs when judges alter
their votes or other actions in some way to achieve a result closer to their preferences
than would occur if they voted sincerely. See, e.g., EPSTEIN & KNIGHT, supra note 5.
25. Codebook, supra note 9.
26. Nw. Austin Mun. Util. Dist. No. One v. Holder, 129 S. Ct. 2504 (2009).
27. Id. at 2505 (the particular statute can be found at 42 U.S.C. § 1973c).
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THE CONTEXT OF IDEOLOGY
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ing.28 Some otherwise covered states and political subdivisions are able to
“bail out” of Section 5’s requirements by making certain showings in a special three-judge district court.29 That court held in NAMUDNO, however,
that, under the statutory definition of “political subdivision,” the municipal
district was not eligible to bail out.30
In the Supreme Court, the voting district argued that it should be allowed to bail out of Section 5’s requirements (or, rather, that it should be
allowed an opportunity to show that it could meet the requirements to bail
out).31 In the alternative, it argued that Section 5 was unconstitutional.32 The
Supreme Court had upheld identical and near-identical language in earlier
incarnations of the Voting Rights Act as legitimate exercises of Congress’s
power to enforce the Fifteenth Amendment.33 In NAMUDNO, however, the
voting district argued that, under the factual circumstances when the law was
reenacted in 2006, Congress exceeded its Fifteenth Amendment power.34
After oral argument, it seemed overwhelmingly likely that there were at
least four votes (Chief Justice Roberts and Justices Alito, Scalia, and Thomas) for holding Section 5 unconstitutional, with a likely fifth vote from Justice Kennedy.35 But when the opinion was announced on June 22, 2009, to
much surprise,36 the vote was eight to one in favor of a reading of the statutory text that declared that all covered voting districts, including NAMUDNO
itself, are eligible for bail-out.37 Because it held for the voting district on the
statutory claim, the Court said that it need not and should not decide the constitutional question.38 Only Justice Thomas, concurring in the judgment in
part and dissenting in part, reached the constitutional issue and would have
struck down the statute.39 Not only did Justices Alito and Scalia join the majority, but the opinion itself was written by Chief Justice Roberts.40 Perhaps
28. 42 U.S.C. § 1973c (2006).
29. Id.
30. Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 221, 232
(2008).
31. NAMUDNO, 129 S. Ct. at 2510.
32. Id.
33. Lopez v. Monterey County, 525 U.S. 266 (1999); City of Rome v. United
States, 446 U.S. 156 (1980); Georgia v. United States, 411 U.S. 526 (1973); South
Carolina v. Katzenbach, 383 U.S. 301 (1966).
34. See NAMUDNO, 129 S. Ct. at 2510.
35. See, e.g., Dahlia Lithwick, The Supreme Court Breakfast Table: Roberts,
Then and Now, SLATE, June 22, 2009, http://www.slate.com/id/2220927/entry/222105
2/.
36. Id.
37. See NAMUDNO, 129 S. Ct. 2504.
38. Id. at 2513.
39. Id. at 2517 (Thomas, J., dissenting) (arguing that the doctrine of constitutional avoidance is inapplicable in the circumstances of this case).
40. See generally id.
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just as surprising, the four most liberal members of the Court – Justices Breyer, Ginsburg, Souter, and Stevens – all joined Chief Justice Roberts’s majority opinion in full, despite the opinion’s skeptical language about the constitutionality of the law,41 and none of them wrote separately.
Speculation has run rampant about what happened after the oral argument. Many people presume that there was some kind of compromise.42 For
the conservatives, the opinion allowed the plaintiff voting district to avoid the
requirements of Section 5 and raised explicit concerns about the law’s constitutionality. For the liberals, the statute remains intact, and Congress has the
opportunity to resolve the constitutional concerns itself by amending the law,
thereby avoiding a constitutional precedent restricting congressional power
with respect to civil rights.
There is little question that NAMUDNO raised politically and ideologically salient questions of government treatment of race and of federal authority over functions, like running elections, that are traditionally within the purview of the states. The post-oral-argument predictions presumed, based in
large part on their questions and demeanor at oral argument, that the four
most conservative Justices would vote to strike down Section 5.43 If we focus
only on outcome, then would we say that the majority opinion is liberal because it did not do so or conservative because it did not uphold Section 5?
Would we say that it is conservative because it allowed for the possibility that
the voting district could bail out of Section 5’s requirements or liberal because to do so the district must establish a track record of undertaking measures designed to ensure minority voters equal access to the polls? If we take
a more behavioral approach, we might assume that, because the liberal Justices joined the majority opinion, the opinion should be characterized as relatively liberal – but the behavioral approach does not allow us to take into
account the opinion’s language voicing serious doubts about Section 5’s constitutionality. Nor does it allow us to account for the possibility of strategic
voting and opinion writing. And finally, we miss, through these approaches,
any analysis of the legal reasoning, such as the majority’s use of the constitutional avoidance doctrine, or any way to consider what (if anything) the quality or nature of that reasoning tells us about the ideological and/or strategic
nature of the Justices’ votes. Neither Outcome Coding nor Behavioral Cod-
41. See, e.g., id. at 2512 (discussing “federalism concerns” inherent in federal
control over state-run elections, differentiation between states “despite our historic
tradition that all the States enjoy equal sovereignty,” and race-consciousness required
to comply with Section 5) (internal quotation marks and citations omitted); id. at 2513
(noting that the “Act’s preclearance requirements and its coverage formula raise serious constitutional questions”).
42. See, e.g., Linda Greenhouse, The Supreme Court Breakfast Table: There’s
Always Another Day, SLATE, June 22, 2009, http://www.slate.com/id/2220927/
entry/2221036/; Lithwick, supra note 35.
43. Lithwick, supra note 35.
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ing adequately describes the ideological valence of the case and the interaction between ideology and other considerations.
III. OUTCOME CODING
A. How It Works and How It Doesn’t
1. The Supreme Court Database
The most famous and widely used source of Outcome Coding for Supreme Court cases is found in Harold Spaeth’s U.S. Supreme Court Database
(the “Database”).44 The Database is the primary source of evidence for the
attitudinal model, but it is ubiquitous in all kinds of empirical legal scholarship on the Supreme Court. As one scholar puts it, “‘There is little doubt that
today [the] U.S. Supreme Court Judicial Data Base is the greatest single resource of data on the Court; there are virtually no social-scientific projects on
the Court that fail to draw on it.’”45 The Database’s own new website proclaims itself “the definitive source for researchers, students, journalists and
citizens interested in the U.S. Supreme Court.”46 Unfortunately, however,
scholars often use the Database without careful consideration of its significant
limitations and its appropriateness for their purposes.47
To identify the ideological character of cases, the Database codes virtually every case as having either a liberal or a conservative outcome.48 Some
of the limitations of this approach are obvious and fairly well recognized. A
binary, liberal-versus-conservative coding system masks all kinds of subtleties: some cases are more liberal (or more conservative) than others;49 some
44. The Database is available for free public download at http://scdb.wustl.e
du/index.php [hereinafter Database]. See also www.cas.sc.edu/poli/juri/
sctdata.htm.
45. Michael Heise, The Past, Present, and Future of Empirical Legal Scholarship: Judicial Decision Making and the New Empiricism, 2002 U. ILL. L. REV. 819,
848 (2002) (quoting Lee Epstein, Social Science, the Courts, and the Law, 83
JUDICATURE 225, 225 (2000)).
46. See Database, supra note 44.
47. See generally Carolyn Shapiro, Coding Complexity: Bringing Law to the
Empirical Analysis of the Supreme Court, 60 HASTINGS L.J. 477 (2009).
48. Codebook, supra note 9. Likewise, it codes every vote as having a conservative or liberal orientation. Id. I will refer primarily to case outcomes in the text, but
the same analysis and critiques apply to the Database’s coding of individual votes.
49. See, e.g., Shapiro, supra note 47, at 486-87 & n.43 (citing Frank B. Cross et
al., Warren Court Precedents in the Rehnquist Court, 24 CONST. COMMENT. 3, 4
(2007)) (“[T]he binary outcome coding cannot measure whether a particular opinion
is moderately liberal (or conservative) or more extremely ideological.”); Michael J.
Gerhardt, Attitudes About Attitudes, 101 MICH. L. REV. 1733 (2003) (reviewing objections to the attitudinal model and Spaeth and Segal’s responses).
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issue areas (such as civil rights) may be more suitable to being characterized
as liberal or conservative than others (such as patent law);50 and some cases
involve more than one issue to which an ideology code could be attached.51
It is this last point – the possibility of more than one issue actually being
present in a case – that the Database’s design and coding protocols render
particularly problematic. Each case receives a code reflecting the case’s “issue,” and the coding protocols for the Database explicitly presume that most
cases can and should be coded with a single issue.52 Once a case’s issue is
identified, an issue area code is assigned. Assigning issue area codes is mechanical: each issue code is assigned to one of thirteen issue areas.53 Those
issue area codes are crucial for determining the ideology of the case. The
ideology coding protocols are different for different issue areas and focus
either on which party prevails or on what type of ruling was issued on a particular claim.54 In the criminal procedure issue area, for example, when the
prevailing party in a case is a criminal defendant, the case is coded as liberal;
50. See William M. Landes & Richard A. Posner, Rational Judicial Behavior: A
Statistical Study (August 28, 2009) (unpublished manuscript), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1126403 (changing ideology
codes within certain issue areas to “indeterminate” due to dissatisfaction with the
liberal versus conservative options in those issue areas). For examples of efforts to
address inadequate ideology coding in particular issue areas, see Michael S. Greve &
Jonathan Klick, Preemption in the Rehnquist Court: A Preliminary Empirical Assessment, 14 SUP. CT. ECON. REV. 43 (2006) (explaining that the Database does not
adequately assess the ideological orientation of cases involving federal preemption of
state law); Nancy Staudt et al., supra note 8 (developing a separate ideology coding
regime for tax cases in part due to dissatisfaction with the Database in this area of
law); Sag et al., supra note 8 (developing a different approach to identifying the ideological nature of intellectual property cases).
51. See, e.g., Greve & Klick, supra note 50, at 79; Ernest A. Young, Just Blowing Smoke? Politics, Doctrine, and the Federalist Revival After Gonzales v. Raich,
2005 SUP. CT. REV. 1, 1-3; Shapiro, supra note 47, at 521; Anna Harvey & Michael J.
Woodruff, Confirmation Bias in the United States Supreme Court Judicial Database
3 (2009), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id
=1393613. See infra text and notes 64-69 for an in-depth discussion of Anna Harvey
and Michael Woodruff’s analysis of the scope of this problem.
52. Shapiro, supra note 47, at 491-92. The coding protocols do allow for cases
to have multiple issues assigned to a single case. Id. at 492. Only about 8.6% of the
orally argued cases in the Database (1953-2005) have more than one issue code. Id.
at 491-92 & n.74. In addition, a case’s issue is defined not as its legal issue but as the
public policy context of the case. Id. at 488-91.
53. The issue areas are Criminal Procedure, Civil Rights, First Amendment, Due
Process, Privacy, Attorneys, Unions, Economic Activity, Judicial Power, Federalism,
Interstate Relations, Federal Taxation, and Miscellaneous. SPAETH, Codebook, supra
note 9, at 42-52. The coding protocols require the coder to identify the issue code for
the case. Id. at 42-43. The issue area is then automatically assigned by the computer.
Id. at 82.
54. Id. at 53-55.
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when the criminal defendant loses, the case is coded as conservative.55 In the
economic activity area, if economic regulation is invalidated, the case is
coded as conservative; if it is upheld, the case is coded as liberal.56 Individual
Justices’ votes are also classified using the same protocols but with a focus on
the party or claim for which the Justices voted.57
Because the Database’s ideology protocols vary with issue area, in some
cases, the choice of issue area determines the ideology code. Schenck v. ProChoice Network of Western New York58 is such a case.59 In Schenck, abortion
protesters brought a First Amendment challenge to an injunction restricting
their activities.60 Votes for the abortion protesters and their First Amendment
rights were coded as conservative – because the issue identified was abortion.61 But if the issue identified had been the First Amendment, the votes for
the protesters, as claimants of First Amendment rights, would have been classified as liberal.62
Spelling out these protocols forces us to recognize that what looks on
the surface like a completely objective system – look at the issue area and
figure out which party prevailed – in fact masks subjective decisions about
how to characterize a case. This does not mean that those decisions are necessarily “wrong.” Consider Schenck: most observers would agree, I think,
55. Id. at 53-54.
56. Id. at 54.
57. Id. at 61-67.
58. 519 U.S. 357 (1997).
59. Another prominent example is Gonzalez v. Raich, 545 U.S. 1 (2005), in
which a liberal vote for the supremacy of federal law was also a conservative vote
against legalizing medical marijuana. See also Shapiro, supra note 47, at 492; Fischman & Law, supra note 11, at 161-63; Young, supra note 51, at 11.
60. Schenck, 519 U.S. at 361-62.
61. See Shapiro, supra note 47, at 480.
62. A disclaimer about terminology is appropriate here. As others have complained, see, for example, Ernest Young, Judicial Activism and Conservative Politics,
73 U. COLO. L. REV. 1139, 1189-90 (2002), the Database’s identification of which
case outcomes are conservative (versus liberal) is, in some contexts, contestable, outof-date, or even offensive. Most contemporary conservatives would bristle at the
notion that a decision in favor of a cross-burner should be seen as conservative because the decision is in favor of a racist. Likewise, many conservatives today would
be quite reluctant to accept automatic descriptions of all pro-First Amendment decisions as “liberal.” See infra note 78. A similar critique of the Database’s protocols
can be made from the left. Many liberals would not accept the notion, for example,
that a vote against a criminal defendant should automatically be seen as a conservative vote. Nonetheless, throughout my discussion of the Database and its coding
protocols in both Part II and Part III, I will, by necessity, refer to case outcomes or
votes in the Database’s terms. This use of terminology should not be taken to mean
that I am attributing particular views to all (or any) conservatives or liberals. The
same of course is true when I refer to liberal or conservative views even outside the
context of the Database.
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that in our current political context the votes for the abortion protesters were
votes for the more conservative outcome, while the votes against the protesters were for the more liberal outcome. (This is true even though the votes for
the protesters were also votes for more expansive First Amendment rights, a
position traditionally deemed liberal.)63 But making such an assessment requires the coder to, sub silentio, locate the case in a broader political and social context, which is not always easy to do.
2. Challenging the Database’s Issue and Ideology Codes
Recent scholarship has begun to explore the extent to which the Database systematically selects one type of issue code over another – and therefore one type of ideology code over another. This scholarship is useful both
for noting the indeterminacy of the Database’s coding protocols and for understanding the nature of the unarticulated criteria that go into the coding
decisions. In a recent working paper, for example, Professors Anna Harvey
and Michael Woodruff convincingly demonstrate that the way the Database
identifies issues – and hence ideology – varies over time and correlates to the
ideological reputation of the Court that decided each case.64 Harvey and
Woodruff focus on cases that involved constitutional challenges to federal
statutes and that were decided between 1953 and 2002.65 Under the Database’s coding protocols, they note, most such cases can be given either an
issue code that focuses on the constitutional question (for example, the First
Amendment or due process) or one that focuses on the substantive area that
the statute regulates (for example, economic activity).66 Moreover, some of
these issue areas are oriented so that within those areas decisions to strike
down statutes are coded as “liberal” – vindicating a person’s constitutional
rights, for example – while other issue areas would code the same decision as
“conservative” – anti-regulation. As a result, the issue coding decisions with
respect to constitutional challenges have systematic implications for the ideology coding in such cases.
63. Cf. Lee Epstein & Jeffrey A. Segal, Trumping the First Amendment, 21
WASH. U. J.L. & POL’Y 81, 91 (2006) (arguing that, over time, liberal Justices have
become increasingly willing to allow other interests to predominate over First
Amendment interests). But see Shapiro, supra note 47, at 507-08 (pointing out the
ways in which Epstein and Segal’s analysis is faulty due to its reliance on the Database’s coding).
64. Harvey & Woodruff, supra note 51, at 14; see also Anna Harvey, What
Makes a Judgment “Liberal?” Coding Bias in the United States Supreme Court Judicial Database 8 (2008), available at http://ssrn.com/abstract=1120970 (arguing that
decisions about issue and ideology coding may be affected by the coder’s knowledge
of which Justices are in the majority and which are in dissent).
65. See generally Harvey & Woodruff, supra note 51.
66. See id. at 6-10.
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Through statistical analysis of the cases involving constitutional challenges, Harvey and Woodruff establish that the Database systematically identifies issue codes leading to liberal outcomes for cases decided by the relatively liberal Warren and Burger Courts and vice versa for the conservative
Rehnquist Court.67 Harvey and Woodruff attribute their findings to confirmation bias: the coder knows, for example, that the Rehnquist Court is conservative, and so the coder is more likely to select an issue code resulting in a conservative outcome.68 As a result, they argue, conclusions drawn about, for
example, the ideological nature of cases decided by these different Courts
may be circular and unreliable.69
There are, however, other explanations for Harvey and Woodruff’s
striking and fascinating findings, and those explanations require thinking
about ideology in more contextual ways. Take one of their prominent examples, Lopez v. United States.70 In Lopez, a convicted criminal challenged the
constitutionality of a statute criminalizing possession of a gun within a certain
distance of a school.71 Lopez’s argument – which likely looked like a long
shot when it was first made – was that the statute in question exceeded Congress’s regulatory authority under the Commerce Clause.72 In a 5-4 decision,
the Supreme Court agreed with him.73 As Harvey and Woodruff point out, if
coded as a criminal procedure case – which is possible under the Database’s
protocols – the case would result in a liberal ideology code because it was
decided in favor of a criminal defendant.74 But since it was coded as a federalism case, it received a conservative ideology code because it limits the
regulatory power of Congress.75
Harvey and Woodruff suggest that the decision to code Lopez so that it
received a conservative ideology code is the result of confirmation bias.76
But this line of argument assumes that we should assess ideology by reference to the same aspects of a case in 1995 as in 1965, regardless of what other legal or political issues are present in the case and regardless of broader
historical and political contexts. In other words, at some historical moments,
67. In fact, they find that every single case in which the Warren Court struck
down a statute is coded for liberal ideology. Id. at 11.
68. Id. at 10-14.
69. I use the term “unreliable” in its ordinary, descriptive sense, not in the technical statistical sense of repeatedly reaching different results or observations. Cf.
Shapiro, supra note 47, at 481 n.16.
70. 514 U.S. 549 (1995).
71. Id. at 551-52.
72. Id. at 552.
73. Id.
74. See Harvey & Woodruff, supra note 51, at 16-17.
75. Id. at 16. Lopez also was coded as a case involving economic activity. Id.
Because the case struck down a regulatory statute, under the Database’s decision
rules, it is coded as a conservative outcome. Id. at 16-17.
76. See id. at 17-18.
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the Justices’ focus may be more clearly on congressional power issues, for
example, while at other times they may be paying more attention to criminal
law and procedure. More generally, underlying Harvey and Woodruff’s
analysis is an assumption that ideology is always relevantly identified by
reference to the same aspects of an opinion – either the nature of the statute
struck down or the nature of the constitutional challenge, but not both. Different areas of the law (or, for that matter, of policy) are not deemed to interact, influence, or trump each other.
But does anyone really doubt that Lopez was a conservative decision?
True, it vacated a criminal conviction, but that was unquestionably the least
salient aspect of the case to the Justices and to the opinion-reading public. It
was the implications of both the holding and the Court’s reasoning for congressional power in all kinds of contexts – criminal and otherwise – that
alarmed liberals and pleased conservatives.77 The criminal context of the
case was largely irrelevant to these concerns. In fact, the conservative majority’s willingness to vacate a criminal conviction and overturn a criminal
statute (albeit one relating to guns) could be seen as an indication of just
how salient the conservative aspect of the opinion was to the Justices in the
majority. More importantly, seen in the context of the many other Rehnquist
Court cases restricting congressional power, Lopez was part of a larger conservative project, just as expansive readings that vindicated constitutional
rights were part of a larger project of the Warren Court. Part of the challenge
empirical legal scholars face in gaining respect within the legal academy is
rooted in such realities – realities that are elided by the Database, unnoted by
most people who rely on its coding, and ignored by the kinds of “objective”
coding regimes with which Harvey and Woodruff experiment. Put bluntly,
coding regimes that might identify Lopez as a liberal case will not and should
not be taken seriously by legal scholars.78
Ultimately, what Harvey and Woodruff’s work may establish is that – at
least sometimes – the Database’s issue and ideology coding is driven not so
much by confirmation bias, as they hypothesize, but by an assessment of the
most politically salient aspects of the case in the context of the time and the
particular Court’s overall agenda. To the extent that the Database gets those
77. Cf. Baum, supra note 12, at 5 (citing Paul J. Wahlbeck, The Life of the Law:
Judicial Politics and Legal Change, 59 J. POL. 778 (1997) (noting that “judges actually might have limited interest in who wins and loses a specific case and much greater
interest in the broader policy implications of court decisions than are captured in
doctrine”).
78. I do not mean to suggest that miscoding the occasional case – even an important case like Lopez – necessarily renders the Database and work relying on it unreliable. To the extent that such miscodings are randomly distributed and are not too ubiquitous, the problems they present will not affect conclusions drawn from large-N
statistical studies. Moreover, in fairness to Harvey and Woodruff, I do not believe
that they are claiming that Lopez is a liberal case. They use it as an example of the
systematic differences in coding among different eras of the Supreme Court.
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assessments “right,” it is because of unarticulated decisions and criteria, such
as the decision not to code Lopez as a liberal criminal procedure case or to
code Schenck as an abortion case. The unarticulated nature of these assessments means that, at best, scholars are deprived of the opportunity to analyze
the way the Justices’ votes and opinions are affected by the interaction of
different legal and political issues arising in a single case.79 The appropriate
response, it seems to me, is to find ways to explicitly account for both the
context of the cases and the content of the opinions. Doing so requires moving away from binary, liberal-versus-conservative coding and from assumptions that most cases can be described by reference to a single issue or issue
area.
B. The Recoding Project
Part of any assessment of the limitations of the Database’s coding must
concretely examine ways in which the coding is incomplete or inaccurate. To
do so here, I build on my prior efforts to evaluate the limitations of the Database. In a previous article, Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court, I recoded a random sample of 95 cases –
10% of the cases decided by the last Rehnquist natural court (“Rehnquist
7”)80 – in an effort to establish the extent to which the Database accurately
provides information about law. Through this Recoding Project, I concluded
that a significant amount of information about law goes unreported in the
Database, in large part due to the presumption that most cases can and should
be coded with a single issue.81 Notably, out of the 95 cases in my sample, the
Database coded 94 of them as involving only a single issue area and coded
only one case as having two issue areas.82 In contrast, once recoded, the
mean number of issue areas per case was 2.4, and only six cases had a single
issue area.83 In other words, the Database failed to identify more than half of
the issue areas identified by the Recoding Project.
Coding Complexity focused on the Database’s limitations only with respect to information about law, and my primary goal in that article was to
evaluate how and whether empirical scholars interested in law could use the
79. At worst, of course, the Database systematically gets these assessments
wrong, leading to misleading data and conclusions based on that data. Cf. Harvey &
Woodruff, supra note 51, at 20 (arguing that the Database’s ideology coding biases
have led to inaccurate assessments of the extent to which the Court is constrained by
Congress).
80. The sample was computer generated. See Shapiro, supra note 47, at 511
n.175.
81. See id. at 528-29.
82. Id. at 514-15.
83. Id. Only about 5.12% of Rehnquist 7 cases are coded in the Database as
having more than one issue (and some of those cases have only one issue area). Id. at
516 & n.187.
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Database.84 Therefore, although I noted that the Database’s coding of outcome ideology relies on the issue areas coded, I did not evaluate the extent to
which the issue areas that the Database fails to identify in fact affected its
ideology coding. Here, I address that question: since the Database’s ideology
coding is directly related to the issue area codes, how would ideology coding
vary for the many cases that, once recoded, have additional issue area
codes?85 In other words, using the Database’s basic ideology protocols but
my more complete issue coding, do we see any significant differences or inconsistencies in the ideology coding?
To investigate this question, I returned to the recoded cases from Coding
Complexity. I used the ideology coding protocols set out in the Database’s
codebook, applying them to each issue that I had coded86 rather than to the
case as a whole. Several caveats are worth mentioning. First, because the
Database’s issue coding is designed to identify the public policy context of a
case, not the case’s legal issues, comparing my legal-issue based ideology
coding to the Database’s public-policy based coding is, arguably, comparing
apples to oranges. I accounted for this problem by reviewing the cases to
ensure that the public policy context was captured by the issue coding, and I
concluded that only three cases in the sample involved public policy contexts
not accounted for by their recoded legal issues.87 As a result, the Database’s
ideology coding protocols were generally applicable to the legal issues that I
identified.
84. Id. at 488.
85. I am indebted to Gregory Mitchell for suggesting this line of inquiry.
86. I did the ideology coding more than a year and a half after I did the issue
coding.
87. Those three cases are Schenck v. Pro-Choice Network of W. N.Y., 519 U.S.
357 (1997), Clinton v. Jones, 520 U.S. 681 (1997), and Virginia v. Black, 538 U.S.
343 (2003). Schenck is the First Amendment challenge brought by abortion protesters. 519 U.S. 357. There is no legal issue related to abortion in the case. See id.
Virginia v. Black is also a First Amendment case in which the nature of the “speech”
– cross burning – has a significant public policy context in its own right. 538 U.S.
343. Finally, in Clinton v. Jones, Paula Jones’s lawsuit against President Clinton, see
520 U.S. 681, the partisan political context is not encompassed by the issue codes.
For these cases, I did not add any issues to my issue coding, but I did account for the
larger public policy context in the ideology coding. Because Schenck and Black were
already coded as having mixed ideology, nothing changed in their coding. For Clinton v. Jones, however, I changed the liberal ideology code to a mixed code. See note
94 and accompanying text for an explanation of mixed ideology codes. My conclusion that public policy context was almost always accounted for in the issue coding is
consistent with my findings in Coding Complexity that, in general, at least one of my
issue area codes matched the Database’s. Shapiro, supra note 47, at 517. Interestingly, despite the protocol requiring coding of the public policy context and not legal
issue, Schenck is the only one of the three cases for which the Database actually identifies the public policy context as the case’s issue.
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Nonetheless, in a few situations, the protocols did not speak directly to
the types of issues presented. For example, the coding protocols provided
that cases decided in favor of voting rights plaintiffs should be coded as liberal, making no distinction between minority plaintiffs alleging that their voting
rights had been violated and white plaintiffs alleging racial gerrymandering.
When appropriate, I updated the protocols accordingly.88
In addition, in the Recoding Project for Coding Complexity, I created
some issue areas that did not exist in the original Database in order to more
accurately describe the cases’ legal issues.89 As a result, I had to make some
changes and additions to the ideology coding protocols to accommodate these
new issue areas. I tried, however, to hew as closely as I could to the Database’s protocols. For example, in my issue area “employment,” which encompasses the Database’s “unions” issue area but is much broader, I continued the Database’s practice of coding a case conservative if it was proemployer and vice versa.90
Finally, unlike the Database, which codes outcome on the basis of which
party or claim prevailed in the entire case,91 I coded the outcome of the cases
on an issue-by-issue basis. For example, if a habeas petitioner were to win on
a procedural claim but lose on the merits of his ineffective assistance of counsel claim, the Database would likely assign that case a conservative code –
the final outcome is in favor of the government and against the criminal defendant. Coding by issue, however, required me to evaluate how each issue
was decided, even if the resolution of that issue did not affect the case’s final
outcome. So my hypothetical habeas case would get a liberal code for the
procedural issue and a conservative code on the merits.
Before describing the results of this recoding and comparing them to the
Database’s original coding, however, it is worth reiterating why I undertook
the project. My purpose is not simply to show that the Database’s ideology
coding protocols are indeterminate and dependent upon subjective issue coding – although there is strong evidence for that proposition in my recoding
and in the work of Harvey and Woodruff, among others.92 The purpose here
is to use an intensive look at the 95 cases in my sample to begin a discussion
of how and whether we can better evaluate a case’s ideological character,
what we mean when we talk about a case’s ideology, and what we are missing under current measures of case ideology. I do not claim that my approach
88. In fact, I discovered that, in some instances, including the racial gerrymandering cases, Spaeth himself had, sub silentio, updated the protocols, coding conservative votes in favor of the plaintiffs in those cases and vice versa.
89. See Shapiro, supra note 47, at 511-12.
90. This approach is also consistent with the Database’s overall economic activity protocols, which also overlap with my employment issue area.
91. Codebook, supra note 9, at 58-59.
92. Harvey & Woodruff, supra note 51; Young, supra note 51, at 9-10; Shapiro,
supra note 47, at 493; Paul H. Edelman & Jim Chen, The Most Dangerous Justice
Rides into the Sunset, 24 CONST. COMMENT. 199, 207 (2007).
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to coding legal issues, coupled with the Database’s ideology protocols, is the
best way to identify the ideological nature of cases.93 Rather, this approach
gives us an initial purchase on the nuanced and textured nature of ideological
and legal decisionmaking in a cross-section of cases and a way to evaluate at
least some of the substantive limitations of binary, liberal-versus-conservative
coding.
1. Quantitative Analysis
Once I completed the outcome recoding of my 95-case random sample, I
compared my ideology codes to the Database’s. Out of the 95 cases in the
dataset, the Database assigns 47 of them a conservative ideology code and 45
of them a liberal ideology code. Three cases received both liberal and conservative ideology codes; that is, the Database itself gave three cases what I
call “mixed ideology codes.”94 Where the Database’s ideology codes were in
complete agreement with mine, I designated the case a match. Sixty cases,
including the Database’s three mixed ideology cases, were matches.
Under my recoding, there were an additional 35 cases that had mixed
ideology codes – both liberal and conservative codes – for a total of 38 or
40.0%.95 Were all the cases from the last Rehnquist natural court (“Rehnquist
7”) to be recoded, there is a 95% chance that between 30.0% and 50.0% of
them would have mixed coding.96 In other words, from about one-third to
one-half of Rehnquist 7 cases would be coded as having both liberal and conservative ideology. The Database, however, identifies a grand total of only
93. I doubt very much that it is. See infra Part V.
94. Those cases were Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357
(1997), which received a mixed ideology code because the Court upheld part of the
injunction against the abortion protesters and struck down part of it; Kolstad v. American Dental Ass’n, 527 U.S. 526 (1999), in which the Court unanimously allowed
punitive damages under Title VII but, in a 5-4 vote, restricted the circumstances under
which they could be awarded; and Green Tree Financial Corp. v. Randolph, 531 U.S.
79 (2000), in which the Court decided two entirely distinct questions, each of which
received its own issue and ideology code. For further discussion of these cases, see
infra Part III.B.2.
95. There were no cases in which I coded only the opposite ideology code from
the Database. All of the cases either matched the Database’s coding or resulted in
mixed ideology coding.
96. Unanimous cases are often omitted from analyses that focus on the ideological orientation of the cases and votes on the theory that these cases are legally easy
and that ideology plays little or no role in them. I think that this approach is very
problematic, but I did think it was likely that unanimous cases might reflect greater
multidimensionality – hence more mixed ideology codes – because different Justices
might find different aspects of the same case more salient than other Justices. However, there was barely any change when I removed unanimous cases from the sample.
Among the non-unanimous cases in the sample, 37.7% have mixed ideology coding,
with a 95% confidence interval of 25.2% to 50.2%.
THE CONTEXT OF IDEOLOGY
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101
10 such cases for the 11 years of that natural court – about 0.01% of the cases
in the Database. These findings alone raise significant questions about any
study that rests too much weight on the binary, liberal-versus-conservative
coding of the Database, and they suggest that in many cases even the most
ideologically driven Justice must prioritize some aspects of a case over others.
Table 1: Ideology Coding for 95-Case Sample in U.S. Supreme Court
Database and Recoding Project
U.S. Supreme
Court Database
Recoding Project
Conservative Only:
Number of Cases
47
Liberal Only:
Number of Cases
45
Mixed Ideology:
Number of Cases
3
27
30
38
In addition to compiling these descriptive statistics, I performed a (logit)
regression analysis to investigate factors that made it more likely for a case,
once recoded, to have mixed ideology codes. I hypothesized that recoded
cases with issue areas that are not generally seen as particularly ideologically
fraught – areas like economic activity, judicial power, and matters of government structure and operations97 – would be more likely to have mixed
ideology. My reasoning was that it is likely – or even, as Harvey and Woodruff demonstrate, highly probable – that the economic, governmental, or judicial issues often point in different ideological directions from constitutional or
civil rights issues that might appear in the same cases.98 Under the same reasoning, I also tested whether cases identified in the Database as involving
civil liberties99 were particularly likely to have mixed ideology once recoded.
97. Here, I included cases with issue areas of federalism, federal government,
and state and local government. Federalism, of course, was a much contested area
during the Rehnquist Court. See, e.g., Kathleen M. Sullivan, From States’ Rights
Blues to Blue States’ Rights: Federalism After the Rehnquist Court, 75 FORDHAM L.
REV. 799, 799 (2006) (noting that “the Rehnquist Court dramatically revived the
structural principles of federalism as grounds for judicial invalidation of statutes”); id.
at 800 (noting that these decisions “sharply divided the Court, typically eliciting 5-4
divisions among the Justices and vigorous dissents”).
98. My previous work indicated that issues involving judicial power and the
structure and functioning of government are particularly likely to go uncoded in the
Database, in contrast with, for example, the sexier issues of civil rights or criminal
procedure. Shapiro, supra note 47, at 518-21. For this reason, I focused on the recoded issue areas here.
99. I grouped together cases that the Database codes as involving criminal procedure, civil rights, due process, First Amendment, or privacy. Cf. Lee Epstein et al.,
The Supreme Court During Crisis: How War Effects Only Non-War Cases, 80 N.Y.U.
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Here, I thought we might see more mixed ideology codes because the civil
liberties aspect of the case would likely have dominated the coding in the
Database, leaving out other, less “sexy,” issue and ideology codes.
I suspected that vote margins would be related to whether a case had
mixed ideology. Cases with broad agreement among Justices who are often
at odds ideologically might involve multiple issues, some perhaps more salient to liberal Justices and others more salient to conservative Justices. If
that were so, then we might expect to see that unanimous cases or cases with
wide vote margins (e.g., 8-1) are more likely to have mixed ideology. On the
other hand, I thought we might see the opposite effect. To the extent that
unanimous or lopsided cases are the legally “easy” cases in which ideology is
not salient, the Justices might join cases that, superficially, appear to point in
the opposite direction of their usual predilections. I similarly identified cases
in which the lower courts were in disagreement, thinking that such disagreement might signal multidimensionality in issues that would make it more
likely that we would see mixed ideology. Finally, I included a variable to
indicate how far to the right or left the median Justice in the majority is100 as a
way of controlling, to some degree, for the overall ideological orientation of
the opinion independent of any outcome-related coding.
Interpreting the results of this quantitative analysis must be done with
caution. The sample size is quite small,101 and, although there are many potential explanatory variables, I was not able to include them all in the regression.102 My results, which are discussed below and summarized in Table 2,
are best understood, therefore, as providing some guidance for future investigation, not as definitively explaining the mixed ideology codes.
As expected, recoded cases that included a government, judicial power,
or economic activity code were more likely to have mixed ideology than
those that did not, but there was no statistically significant effect for cases
that the Database coded as involving civil liberties. There was also no statistically significant effect for unanimous cases or for the size of the vote margin. On the other hand and to my surprise, I found that a split of authority in
the lower courts made mixed ideology coding less likely. I am unsure how to
explain this last result. My measure for how far to the right or left the court
majority was, based on the median Justice in the majority, was borderline
L. REV. 1, 43-44 (2005) (defining civil liberties cases as including the same five issue
areas as well as the “attorneys” issue area).
100. For this variable, I used the Martin-Quinn score of whichever Justice was the
median of the majority. See Part IV, infra, for an explanation of Martin-Quinn scores
and the significance of the score of the median Justice of the majority.
101. It is at the very low end of the appropriate sample size for a logistic regression. See J. SCOTT LONG & JEREMY FREESE, REGRESSION MODELS FOR CATEGORICAL
DEPENDENT VARIABLES USING STATA 77 (2d ed. 2006).
102. I could not include some variables because those variables did not have
enough variation in the sample. In addition, due to the small sample size, I had to
restrict the number of explanatory variables in the regression. See id. at 131.
2010]
THE CONTEXT OF IDEOLOGY
103
statistically significant (p>.052)103 and suggested that, the further to the left
the majority was, the less likely the case was to have mixed ideology coding.
Again, I am unsure how to explain this result, but it suggests that Justices on
the right and left may treat multidimensional cases differently. This finding
obviously warrants future research and investigation.
Table 2: Factors Tested for Effect on Likelihood of Mixed Ideology in
Recoded Cases
Factors Tested
Economic Activity Issue
Area in Recoded Cases
Judicial Power Issue Area
in Recoded Cases
Government Issue Area
in Recoded Cases
Civil Liberties Code in
Original Database
Vote Margin
Position of Median Justice in Majority
Split of Authority
Lower Courts
in
Effect Found
Mixed ideology is more
likely.
Mixed ideology is more
likely.
Mixed ideology is more
likely.
No effect found.
Statistical Significance
p>.01
No effect found.
Mixed ideology may be
more likely the further
to the left the median
Justice in the majority.
Mixed ideology is less
likely.
None
p>.052
p>.01
p>.01
None
p>.05
I also wanted to investigate whether cases that the Database coded as
liberal were more or less likely to have mixed ideology once recoded than
were cases that it had coded as conservative.104 The evidence here is not conclusive, but it is concerning. When I added the Database’s issue coding to the
model, it approached statistical significance (p>.088). In other words, the
analysis suggested but did not establish that, all else equal, cases identified as
liberal in the Database are more likely to have mixed ideology coding once
recoded than are cases originally identified as conservative.105 Further research – with larger datasets – is needed to determine if such a skew is in fact
103. The traditional cut-off for statistical significance is p>.05. The p-value tells
us the likelihood that a particular variable actually has the effect identified by the
statistical analysis. At p>.01, we can say that there is a 99% likelihood that the variable has the identified effect. At p>.05, we can say there is a 95% likelihood.
104. For this regression, I dropped from the sample the three cases that the Database identifies as mixed.
105. The results also suggested – again without statistical significance – that the
tendency was less pronounced in cases to which the Database assigns a civil liberties
issue area than in other cases.
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present in the Database and, if so, to investigate its implications, which could
be extraordinary.
2. Qualitative Analysis
The qualitative analysis of the mixed ideology cases begins with the
three cases that the Database itself codes as having mixed ideology: Schenck
v. Pro-Choice Network of Western New York, 106 Kolstad v. American Dental
Ass’n,107 and Green Tree Financial Corp. v. Randolph.108 The Database
characterizes two of those cases, Schenck and Kolstad, as “split decisions,”
meaning that each party prevailed in part. In Schenck, the Court upheld part
of the injunction restricting abortion protesters’ activities (coded as liberal)
and struck down part of it (coded as conservative).109 In Kolstad, the Court
held unanimously that Title VII plaintiffs can receive punitive damages
(coded liberal), but, over a partial dissent by four Justices, it imposed a fairly
restrictive test for determining when such damages are warranted (coded conservative).110
Green Tree Financial, the third case that the Database codes as both liberal and conservative, is the only case in my sample to which the Database
assigns two issues areas: economic activity and judicial power. In Green
Tree Financial, the Court answered two distinct questions.111 The first question was whether a district court’s “order compelling arbitration and dismissing a party’s underlying claims is a ‘final decision with respect to arbitration’
within the meaning of . . . the Federal Arbitration Act . . . and is thus immediately appealable pursuant to that Act.”112 Presumably because of the centrality of this jurisdictional question to the case, the Database gives the case a
judicial power issue area code. And since the Court concluded (unanimously)
that the answer was yes – it was a final order, and so there was appellate jurisdiction113 – the case received a liberal code with respect to judicial power.114
106. 519 U.S. 357 (1997).
107. 527 U.S. 526 (1999).
108. 531 U.S. 79 (2000).
109. Schenck, 519 U.S. at 361.
110. Kolstad, 527 US. at 527.
111. Green Tree Fin., 531 U.S. at 82.
112. Id. (citing 9 U.S.C. § 16(a)(3)).
113. Id. at 89.
114. Under the coding protocols, cases decided in favor of federal court jurisdiction should be coded as liberal. Codebook, supra note 9, at 54-55. Jurisdictional or
procedural issues that must be decided before the Court can consider the merits are
sometimes called threshold issues, and some scholars systematically identify them
separately from the underlying merits issues. Although the Database does identify the
issue separately in Green Tree Financial, the protocols do not require that it systematically does so, and in many other cases it does not. See, e.g., Yamaha Motor Corp.,
2010]
THE CONTEXT OF IDEOLOGY
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The Court then went on to consider the second question: the enforceability of the arbitration agreement. The agreement at issue in the case did “not
mention arbitration costs and fees,” and the plaintiff argued that it was therefore “unenforceable because it fail[ed] to affirmatively protect [her] . . . from
potentially steep arbitration costs.”115 Here, the Court held that the agreement
was not automatically unenforceable for that reason and, in a 5-4 vote, ruled
against the plaintiff because she had failed to provide any evidence of the
arbitration’s actual cost burdens.116 Presumably because the case involved a
dispute between a mortgage holder and borrower, the Database assigns it an
economic activity issue area. And for a holding like this one, in favor of the
large company and against an individual (or potential class of individuals),
the coding protocols dictate a conservative ideology code.117
Each of the three original mixed-ideology cases has a different kind of
structure with respect to its issue and ideology coding. Schenck involved
application of the same body of law – the First Amendment and precedent
construing it – to a multi-faceted factual situation – the injunction against the
abortion protesters.118 The Court reached different conclusions with respect
to different aspects of the factual situation (the injunction), but it did not
purport to announce any new legal rules.119 In Kolstad, on the other hand, the
Court decided a pure legal question in favor of the plaintiff – and by extension in favor of all Title VII plaintiffs – but it did not go as far in favor of the
plaintiff as it could have.120 Both of these cases, to the extent that they can be
explained ideologically, suggest that the Justices do not vote in purely binary,
liberal-versus-conservative terms. Rather, these cases might be described as
falling somewhere on a spectrum.
I call cases like Schenck “Tug-of-War Cases” because they involve two
clearly defined interests (abortion rights and the First Amendment) that, in the
factual context of the case, point in opposite ideological directions under the
Database’s protocols.121 In Tug-of-War Cases, the decision as to which issue
area to identify will determine the ideology code. These are the kinds of casU.S.A. v. Calhoun, 516 U.S. 199 (1996) (coded by the Database as an economic activity case with no reference to the jurisdictional issue that the Court also decided).
115. Green Tree Fin., 531 U.S. at 82.
116. Id. at 91-92. This portion of the opinion was 5-4. See id. Although the
dissenters agreed that the arbitration agreement was not automatically unenforceable,
they would have remanded to the lower court “for closer consideration of the arbitral
forum’s accessibility.” Id. at 93 (Ginsburg, J., concurring in part and dissenting in
part).
117. Codebook, supra note 9, at 54. My description of the reasons that the Database codes Green Tree Financial as it does is educated speculation.
118. See Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357 (1997).
119. See generally id.
120. See generally Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999).
121. See supra note 62 for a disclaimer and discussion about liberal and conservative labels.
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es that Harvey and Woodruff identify as problematic for the Database. In
contrast, Kolstad is what I call a “Spectrum Case.” Spectrum Cases are those
in which, while there may well be more than one issue or issue area, they run
ideologically in the same direction; a vote for the plaintiff is considered a
liberal vote in Kolstad under both civil rights coding and economic activity
coding.122
Green Tree Financial, on the other hand, is a Tug-of-War Case, but, unlike Schenck, it involves two distinct legal questions, each coded in the Database and decided (according to the Database’s protocols) in different ideological directions. Green Tree Financial’s two distinct legal issues challenge not
only the widespread assumption of unidimensionality but also the underlying
presumption that the Justices simply vote their policy preferences without
regard for law.123 In Green Tree Financial, the Justices who voted against
the plaintiff on the merits could have reached the same result – a loss for the
plaintiff – if they had held that there was no jurisdiction. Moreover, if they
were trying to reach a conservative bottom line, such a holding would have
had much more impact, as it would have prevented lower appellate courts
from ever reviewing dismissals of plaintiffs’ claims pursuant to the Federal
Arbitration Act. Nonetheless, they joined their liberal colleagues in finding
such dismissals reviewable in the federal appellate courts.124
The Justices’ behavior in Green Tree Financial therefore suggests that,
assuming they were simply voting their policy preferences, they had different
ideological preferences with respect to different issue areas. If so, there is no
unidimensionality with respect to judicial ideology, at least in this case. On
the other hand, if their ultimate policy preference was to promote arbitration
(as indeed they suggest in the opinion),125 then their failure to vote against the
plaintiff on jurisdictional grounds suggests that they were constrained in some
way, perhaps by their reading of the law, or that they were concerned about
the consequences of the case as a legal precedent.126 If so, it is not just ideology that motivated their votes. Likewise, the Justices who dissented in Green
122. The difference between Spectrum Cases and Tug-of-War Cases is largely an
artifact of the issue and ideology coding protocols both in the Original Database and
in the Recoding Project. In both kinds of cases, the Justices are balancing competing
interests. Spectrum Cases, however, are often identifiable only when there are separate opinions urging the Court to go further in one direction or another. Moreover, in
any case, there may be additional dimensions – jurisprudential, strategic, or institutional, to name a few – that might compete with ideology as the Justices make their
decisions.
123. See generally SEGAL & SPAETH, supra note 4.
124. See Green Tree Fin. Corp. v. Randolph, 531 U.S. 79 (2000).
125. The majority does not assert that this is its personal policy preference. See
id. Rather, it refers to the need to support the “liberal federal policy favoring arbitration agreements.” Id. at 91 (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24 (1983)).
126. Cf. BAUM, supra note 12, at 5.
2010]
THE CONTEXT OF IDEOLOGY
107
Tree Financial could have argued that all arbitration agreements that are silent as to costs are necessarily unenforceable, as the plaintiff claimed and the
Eleventh Circuit held, but they did not do that either. Instead, the dissenters
agreed with the majority that such agreements can, at least sometimes, be
enforced.127 The Green Tree Financial opinions, like those in Schenck and
Kolstad, evidence some calibration of judicial preferences that – whether
ideological or not – are certainly not binary and that appear to operate along
several dimensions.
A review of all 38 of the mixed ideology cases in my dataset revealed
that – as with Schenck, Kolstad, and Green Tree Financial – in almost every
case, the mixed ideology codes revealed something substantive about the case
instead of being an artifact of the coding protocols. Sometimes, of course, the
mixed ideology codes identified something for which the case was not well
known.128 Nor did the different ideological considerations always carry anything close to the same weight within the case.129 Nonetheless, of the 38
mixed ideology cases, I identified only two cases in which the mixed ideology code seemed a function purely of a mechanical application of the coding
protocols and added no information about the ideological character of the
case.130 In other words, my mixed ideology codes helped to identify cases in
which the Justices in fact had to reconcile competing interests.
127. See Green Tree Fin., 531 U.S. 79.
128. For example, Printz v. United States, 521 U.S. 898 (1997), is known for
striking down part of the Brady Bill. But in a lower-profile holding, the Court also
held that the plaintiff had no standing to challenge other aspects of the law.
129. In Garner v. Jones, 529 U.S. 244 (2000), for example, the Court held that a
change in Georgia’s parole board operations did not violate the Ex Post Facto Clause.
However, Justice Scalia, concurring in part and concurring in the judgment, would
have denied the prisoner even the possibility that on remand the lower courts might
allow him to take additional discovery. See id. at 257-59 (Scalia, J., concurring in
part of the judgment). The majority, while it issued a conservative decision, did not
go as far as Justice Scalia. See id. at 246-57 (majority opinion).
130. In fact, those two cases demonstrate some additional weaknesses and overgeneralizations in the Database’s coding protocols. In Heintz v. Jenkins, 514 U.S. 291
(1995), the Court held that an attorney who regularly engaged in debt collection was
subject to the Fair Debt Collection Practices Act. As an economic activity case (and
as coded in the Database), this is a pro-consumer, liberal decision. But if coded as a
decision within the attorneys issue area (or in the legal profession issue area in my
recoding) as an anti-lawyer decision, it would get a conservative ideology code. The
notion that pro-lawyer decisions are necessarily liberal is absurd, and I presume that
this protocol arose with respect to issues related to attorneys’ fees and access to lawyers in other contexts. In Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock
Co., 513 U.S. 527 (1995), the Court held that maritime jurisdiction governed litigation
over the Chicago flood; as a result, the available damages were dramatically reduced.
As an economic activity decision, it should be coded as a conservative, anti-tort liability decision. As a judicial power case, however, the protocols dictate that pro-federal
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Of the remaining 36 cases, five, including Kolstad, were Spectrum Cases that essentially split the baby – not going as far in one direction as the
Court could have gone and issuing a holding that was, in some sense, moderated.131 In Wilson v. Layne, for example, the Court held that officers violated the Fourth Amendment by bringing reporters along for execution of a
warrant, but the Court also held that the officers were entitled to qualified
immunity from suit.132
The remaining 31 cases were Tug-of-War Cases. These cases involved
some recurrent themes,133 some of which have been studied and others of
which are ripe for more investigation:
(a) Federalism and Preemption. Five cases were about whether federal regulatory structures preempted state law.134 Professors Jonathan Klick
and Michael Greve have already recognized this category of cases as problematic for the Database.135 As they explain, if understood as a matter of
federalism, pro-state-law, anti-federal-law votes should be coded as conservative, which is in fact how they are usually coded in the Database. But if understood as economic activity cases, the pro-regulation votes – which are also
the pro-state-law votes because they are votes to uphold state regulation –
should be coded as liberal and vice versa. Greve and Klick’s findings suggest that it is this second dimension – economic regulation – that is often
jurisdiction holdings be identified as liberal. Ironically, this is how the Database
codes the case, although I would argue that it is simply wrong and overly mechanical.
131. Garner v. Jones, 529 U.S. 244 (2000); Slack v. McDaniel, 529 U.S. 473
(2000) (resolving some procedural matters in favor of habeas petitioner and resolving
others against him); Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999); Martin v.
Hadix, 527 U.S. 343 (1999) (holding that the Prison Litigation Reform Act’s limitations on attorneys’ fees applies to postjudgment monitoring performed after the
PLRA’s enactment but not to such monitoring performed before its enactment even if
payment was sought only post-enactment); Wilson v. Layne, 526 U.S. 603 (1999).
Virginia v. Black, 538 U.S. 343 (2003), the cross-burning case, could also be considered to fall into this category. In all of these cases, that there is a spectrum is made
obvious by the presence of separate opinions, see, for example, Slack, 529 U.S. 473
(separate opinion by Justice Stevens agreeing with only part of the majority’s holding
and separate opinion by Scalia agreeing with a different part), and/or by the Court’s
resolution of at least two related questions, as in Wilson, 526 U.S. 603 (resolving
merits of Fourth Amendment question as well as the related issue of qualified immunity).
132. 526 U.S. 603 (1999).
133. There is of course some overlap between the categories of cases set forth
below, and many cases could be classified in more than one category. Some (but not
all) of those overlaps are noted in the footnotes.
134. AT&T v. Cent. Office Tel., Inc., 524 U.S. 214 (1998); Am. Trucking Ass’ns,
Inc. v. Mich. Pub. Serv. Comm’n, 545 U.S. 429 (2005); Mid-Con Freight Sys., Inc. v.
Mich. Pub. Serv. Comm’n, 545 U.S. 440 (2005); Norfolk S. Ry. Co. v. Shanklin, 529
U.S. 344 (1996); Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 619 (1996).
135. Greve & Klick, supra note 50, at 79-80.
2010]
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109
more salient to the Justices in these cases. Of my five preemption cases, only
two of them were coded as economic activity cases. The other three received
federalism codes.
(b) Constitutional Challenges to Laws. Four cases involved constitutional challenges to state or federal regulation,136 much like the cases that
Harvey and Woodruff examine.137
(c) Jurisdictional Issues. Eleven cases, including Green Tree Financial, decided whether to grant standing or jurisdiction to plaintiffs where the
ideological character of the jurisdictional decision pointed in the opposite
direction of the underlying claims.138 In Bennett v. Spear,139 for example, the
Court held that prudential zone-of-interests standing requirements did not
apply to citizen suits authorized by the Endangered Species Act, and it found
that the plaintiffs in the case – ranchers and irrigation districts concerned
about the economic harm they would suffer from certain actions taken by the
Department of the Interior under the ESA – had sufficient injury-in-fact to
satisfy Article III.140 Pro-jurisdiction, pro-standing holdings are generally
seen as liberal, and indeed that is how the case is coded in the Database. But
the claims that the Court allowed to go forward alleged that the Secretary of
the Interior had failed to adequately consider the economic impact of his action – an anti-environmental, anti-regulation outcome. Such outcomes are
generally seen as conservative. So although the Database assigns Bennett a
judicial power issue area with a liberal ideology code, the case could have
received an economic activity issue area with a conservative ideology code.
(d) Federal Government Structure and Power. Four cases involved
questions of federal government structure or power – cases that have implications for the balance of power between Congress, the courts, and the executive. Such cases can sometimes pit supposedly liberal or conservative prefer-
136. Ill. ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (2003); Rubin v.
Coors Brewing Co., 514 U.S. 476 (1995); Buckley v. Am. Constitutional Law Found.,
Inc., 525 U.S. 182 (1999); Virginia v. Black, 538 U.S. 343 (2003).
137. Harvey & Woodruff, supra note 51, at 6-8. Harvey and Woodruff examine
only challenges to federal law. See generally id.
138. Adarand Constructors, Inc. v. Mineta, 534 U.S. 103 (2001); Green Tree Fin.
Corp. v. Randolph, 513 U.S. 79 (2000); Nelson v. Adams USA, Inc., 529 U.S. 460
(2000); Bennett v. Spear, 520 U.S. 154 (1997); Lords Landing Condo. Council of
Unit Owners v. Cont’l Ins. Co., 520 U.S. 893 (1997); Printz v. United States, 521
U.S. 898 (1997); Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 715 (1997) (takings plaintiff); Comm’r v. Lundy, 516 U.S. 235 (1996); Celotex Corp. v. Edwards,
514 U.S. 300 (1995); Austin v. United States, 513 U.S. 5 (1994); Reich v. Collins,
513 U.S. 106 (1994).
139. 520 U.S. 154 (1997).
140. Id. at 166-68.
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ences about deference to the different branches against preferences with respect to the underlying substantive issues.141
(e) Public Policy Contexts. There were three cases, including
Schenck, in which the public policy context could be seen as more salient
than the legal issues – and where the ideological orientation of the public
policy context was inconsistent with the ideological orientation of the legal
issues.142 These are cases in which the attitudinal model may have the most
explanatory power.
(f) Deference to State Decisionmakers. In four cases, the Court had
to decide whether to defer to state policymakers or state courts that were asserting a relatively liberal position. In other words, as with the preemption
cases, the traditionally conservative solicitude for state policymaking and
sovereignty conflicted with the substantive legal issues at stake – and vice
versa.143
This qualitative analysis of the mixed ideology cases illustrates why and
how unidimensionality and binary ideology coding inadequately describe
content of Supreme Court cases and the nature of Supreme Court decisionmaking. The Justices are not simply giving the thumbs up (or thumbs down)
to favored (or disfavored) parties or claims. Instead, they are balancing
sometimes powerful competing interests. What we cannot conclude from this
analysis, however, is the extent to which those competing interests are perceived by the Justices in purely ideological terms – protecting women’s
access to abortion versus protecting free speech, for example – or the extent
to which they are perceived and resolved along other dimensions – most notably law, but also including strategic, institutional, and jurisprudential considerations. With respect to the interaction of ideology and law, Tug-of-War
Cases involving questions of standing and jurisdiction and the state solicitude
cases offer particularly fruitful avenues for future research. Are the Justices
141. Hamdi v. Rumsfeld, 542 U.S. 578 (2004) (holding that the government could
not indefinitely detain an American citizen designated an enemy combatant without
providing him a chance to contest the factual basis for the detention); Household
Credit Servs., Inc. v. Pfennig, 541 U.S. 232 (2004) (applying Chevron deference to
regulation promulgated by the Federal Reserve Bank and upholding regulation);
Fischer v. United States, 529 U.S. 667 (2000) (holding that the federal bribery statute
covered a health care provider participating in Medicare, thereby expanding the reach
of federal regulation of criminal activity traditionally governed by the states); Loving
v. United States, 517 U.S. 748 (1996) (holding that Congress could delegate to the
President the authority to identify aggravating circumstances for the imposition of the
death penalty and upholding the factors so identified). Clinton v. Jones, 520 U.S. 681
(1997), could also be placed in this category.
142. Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357 (1997); Clinton,
520 U.S. 681; City of Chicago v. Morales, 527 U.S. 41 (1999). Virginia v. Black,
538 U.S. 343 (2003), could also be considered in this category.
143. Easley v. Cromartie, 532 U.S. 234 (2001); Abrams v. Johnson, 521 U.S. 74
(1997); Bush v. Vera, 517 U.S. 952 (1996); Ohio v. Robinette, 519 U.S. 33 (1996).
The federal preemption cases can be seen as a subset of this category.
2010]
THE CONTEXT OF IDEOLOGY
111
voting on judicial power issues in ways that are inconsistent with their apparent preferences on the underlying merits, especially in ideologically charged
areas like race and capital punishment? Do they rule in the same way on
similar judicial power questions in different factual or legal contexts? How
does deference to state lawmakers vary depending on the legal or factual context? These questions might help us determine how (or whether) legal doctrine interacts with ideology.
IV. BEHAVIORAL CODING
A. A First Approach
While scholars like Spaeth, Harvey, and Woodruff attempt to identify
the ideological nature of cases by reference to case outcomes, independently
of the Court’s composition and how particular Justices vote, other scholars
have taken precisely the opposite path. For these scholars, the ideology of a
case is a function of which Justices joined the majority opinion.
In a landmark article, Professors Andrew Martin and Kevin Quinn use
an elegant and sophisticated methodology to assign each Justice a numeric
score for each Term.144 Martin and Quinn’s model calculates the frequency
with which Justices vote together, incorporating historical voting patterns as
well as such information as the frequency with which a given Justice is a lone
dissenter or one of two dissenters, etc.145 Based on this information, the Justices are arrayed along a single line, with new scores determined for each
Term. The scores represent the Justices’ “ideal points” relative to each
other, 146 and Martin and Quinn, as well as other scholars, interpret them as
reflecting the ideological predilections of the Justices.147 Indeed, most observers would likely agree that the scores are consistent with where the Justices fall ideologically, at least relative to each other. For October Term (OT)
2004, for example, the last Term of the Rehnquist 7 natural court, Justice
Thomas was at the far right, with a score of 4.5. Justice Stevens was at the
144. Andrew D. Martin & Kevin M. Quinn, Dynamic Ideal Point Estimation via
Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999, 10 POL.
ANALYSIS 134 (2002).
145. See id.
146. Martin and Quinn claim that the scale is consistent over time and so can be
used to compare Justices who never served together – like Thomas and Douglas –
through the information provided by looking at the votes of the Justices who served
with both. Martin & Quinn, supra note 144, at 145. See infra Part IV.A for discussion of this claim.
147. See, e.g., Lee Epstein et al., Ideological Drift Among Supreme Court Justices: Who, When, and How Important?, 101 NW. U. L. REV. 1483 (2007); Tonja Jacobi
& Matthew Sag, Taking the Measure of Ideology: Empirically Measuring Supreme
Court Cases, 98 GEO. L.J. 1, 3-4 (2009).
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other extreme, with a score of -2.41. The median Justice for that Term was,
unsurprisingly, Justice O’Connor, with a score of .08.
The Martin-Quinn scores (which are publicly and freely available)148 are
widely used for a variety of purposes. While they cannot be used as an independent variable to explain the universe of votes (because they are derived
from the universe of votes), they can (arguably) be used to explain or predict
votes in certain areas or on certain subjects.149 Among the advantages of the
Martin-Quinn scores is that they are not binary. Instead of identifying a Justice as either liberal or conservative, the Martin-Quinn scores define a spectrum and locate Justices at various points along that spectrum.
Scholars are now beginning to try to use Martin-Quinn scores to describe the ideological character of cases as well as of the Justices. In a recent
article, for example, Professors Tonja Jacobi and Matthew Sag present several models of how the Martin-Quinn scores might be used to identify the ideological character of a case, taking advantage of this spectrum.150 Jacobi and
Sag’s work explores a variety of theoretical models that might explain the
way ideological and strategic considerations influence Justices’ voting. One
possibility, which they call the Ideological Model, simply assigns every case
the Martin-Quinn score of the median Justice of those who participated in the
case, which, for most cases, is the median Justice on the Court for that
Term.151 Yet it is obvious that not every case in a given Term has the same
ideological character, and, in part for this reason, the Ideological Model is not
compelling.
148. See Martin-Quinn Scores, The National Center for Empirical Research in the
Law and the Institute for Quantitative Social Science, http://mqscores.wustl.edu/ (last
visited on Nov. 3, 2009).
149. Andrew D. Martin & Kevin M. Quinn, Can Ideal Point Estimate Be Used as
Explanatory Variables?, (Oct. 8, 2005) (unpublished working paper), available at
http://mqscores.wustl.edu/media/resnote.pdf.
150. Jacobi & Sag, supra note 147, at 11-18; see also Tonja Jacobi, Competing
Models of Judicial Coalition Formation and Case Outcome Determination, 1 J.
LEGAL ANALYSIS 411 (2009) (laying out in detail the theoretical justifications for the
models). Jacobi and Sag’s work is a particularly well-developed attempt to use the
Martin-Quinn scores to identify case ideology. As such, it offers the opportunity to
analyze how the strengths and weaknesses of the widely used Martin-Quinn scores
affect such an effort.
151. Jacobi & Sag, supra note 147, at 15-16. This model relies on the Median
Justice Theorem, which suggests that the median Justice essentially controls the outcome of all cases. See id. (citing Duncan Black, On the Rationale of Group DecisionMaking, 56 J. POL. ECON. 23 (1948), and Keith Krehbiel, Supreme Court Appointments As a Move-the-Median Game, 51 AM. J. OF POL. SCI. 231 (2007)). There are
occasional cases in which one or more Justices do not participate. In such cases, the
score for the median Justice may or may not be the score for the median Justice for
the Court.
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The approach that Sag and Jacobi prefer, after assessing its descriptive
power, is what they call the Strategic Model.152 In this model, the ideological
nature of the case is defined as the median or, alternatively, the mean of the
Martin-Quinn scores of all of the Justices in the majority.153 I will refer to the
Strategic Model’s scores as Jacobi-Sag scores of case ideology, and, in the
text, I will report the median score of the Justices in the majority, with the
mean score identified in the footnotes.154
As an alternative to the binary, liberal-versus-conservative coding of the
Database, measures (like the Jacobi-Sag approach) that rely on the MartinQuinn scores offer a number of distinct advantages. Notably, they allow for a
spectrum – some cases might be more conservative (or more liberal) than
others. And they do not rest on subjective assessments (unarticulated or explicit) about the most salient aspects of a case. In fact, assigning the JacobiSag score to a case requires knowing nothing at all about the case’s legal
issues, case facts, or political context.
Moreover, the Jacobi-Sag approach in particular can be both descriptive
and informative. It arguably identifies the correct ideological direction with
respect to closely decided cases in which the Court’s swing Justice sides with
the liberal Justices and those in which the swing Justice sides with the conservatives. Compare, for example, the Jacobi-Sag scores for two 5-4 voting
rights cases.155 In Bush v. Vera, Justice O’Connor sided with the conservative Justices to strike down the boundaries of three congressional districts on
equal protection grounds.156 The Jacobi-Sag score for the case is 1.544.157 In
152. Jacobi & Sag, supra note 147, at 17-18. The theoretical framework for this
model rests on the idea that Justices care both about case outcome and about the size
of the majority coalition and will make strategic trade-offs between them. Id. at 1718. Jacobi and Sag also consider and reject a “Collegial Model,” which assigns each
case the Martin-Quinn score of the “marginal” Justice. Id. at 16, 24, 65. In a 6-3
decision that the Database codes as conservative, for example, the case will receive
the Martin-Quinn score of the most liberal Justice who joined the majority. See id. at
16. They explain the theory behind the Collegial Model but then convincingly demonstrate that it does a terrible job of describing the ideological character of decided
cases. Id. at 16, 34-65.
153. Id. at 17-18. Jacobi and Sag assess whether the median or mean is a better
measure and conclude that each has practical and theoretical advantages and disadvantages. Id. at 82; see also Cliff Carrubba et al., Does the Median Justice Control
the Content of Supreme Court Opinions? (November 2007) (unpublished working
paper), available at http://adm.wustl.edu/media/working/mjt1-5.pdf (concluding that
the median Justice of the majority is a better measure of case ideology than the median Justice of the Court).
154. I figured the Jacobi-Sag scores myself based on the protocols set forth in
their article.
155. Except where noted, all of the cases discussed in this Part are in my 95-case
dataset.
156. 517 U.S. 952, 956-57 (1996).
157. Using the mean instead of the median, the score is 1.996.
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Easley, on the other hand, Justice O’Connor sided with the liberal block to
uphold a district against a similar challenge.158 The Jacobi-Sag score is
-1.518.159 The shift in these scores from the right of the Court’s median Justice (O’Connor) in Bush v. Vera to her left in Easley comports with some of
what we know about the cases. Bush v. Vera has a conservative outcome,
while Easley is a liberal case, as indeed they are coded in the Database. But
the spectrum created by the Jacobi-Sag scores provides more information
about the ideological nature of a case than does the Database. In the Database, a unanimous (or lopsided) case with a “liberal” outcome has the same
ideology code as Easley, and a unanimous case with a “conservative” outcome has the same ideology code as Bush v. Vera. Yet such a unanimous
case would have the Jacobi-Sag score of the median Justice on the Court.
Jacobi and Sag’s use of the Martin-Quinn scores, on the other hand, allows us
to distinguish meaningfully between the ideological character of cases in
which the outcome closely divided the Court (like the voting rights cases) and
those in which the outcome was relatively centrist, an improvement over binary, liberal-versus-conservative codes.
Moreover, the Jacobi-Sag scores might help us identify when and how
ideological predilections change, again without reference to subjective assessments. Specifically, the scores might demonstrate how the meaning of
“conservative” and “liberal” can change over time. Take, for example, Republican Party of Minnesota v. White, a 5-4 decision striking down, on First
Amendment grounds, state law restrictions on judicial candidates’ speech.160
White is coded in the Database as a liberal First Amendment decision. But
because the four most liberal Justices dissented in White, the Jacobi-Sag score
is comparable to the score in Bush v. Vera, the conservative voting rights
case. That information can serve as a signal that, at least sometimes, what
has traditionally been considered liberal (or conservative) with respect to the
First Amendment may have changed or that issues other than the First
Amendment have become more salient to at least some of the Justices.161
There are several specific problems with the Jacobi-Sag scores, however. First, Jacobi and Sag’s use of the Martin-Quinn scores may sometimes
substantially overstate the difference between the ideological positions of
cases. The focus on the median Justice in the majority may, in some kinds of
cases, shift the focus away from the Justices whose votes were actually contested and therefore whose ideology is most likely to be reflected in the case.
For example, in Bush v. Vera and Easley, the voting rights cases discussed
earlier, the shift in one vote – Justice O’Connor’s decision to side with the
liberals or the conservatives – caused a dramatic change in the Jacobi-Sag
158. 532 U.S. 234, 236-37 (2001).
159. Using the mean instead of the median, the score is -1.27.
160. Republican Party of Minn. v. White, 536 U.S. 765, 766, 788 (2002) (coded as
liberal in the Database). White is not in my dataset.
161. Cf. Epstein & Segal, supra note 63, at 91.
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score for those cases (1.544 for the conservatively decided Bush v. Vera and
-1.518 for the liberal decision in Easley). While the Jacobi-Sag measure accurately identifies the ideological direction of each case, it seems unlikely
that Justice O’Connor perceived either case as being anywhere close to that
ideological extreme. As in the Michigan affirmative action cases, where Justice O’Connor alone voted to uphold the law school’s affirmative action admissions program but voted to strike down the program used for undergraduate admissions,162 it is likely that she understood both cases to be close cases
in which the specific facts made all the difference. Sag and Jacobi’s singular
focus on the median Justice in the majority in these cases, then, obscures important information about the ideological character of the cases and may
overstate the ideological distance between them.163 This criticism, put more
theoretically, suggests that Jacobi and Sag’s Ideological Model may be a
more accurate approach to identifying the ideological position of some kinds
of cases than is their Strategic Model.
The remaining three problems I will discuss all arise from Sag and Jacobi’s reliance on the Martin-Quinn scores. The first problem is that the scores
provide an extraordinary degree of apparent precision – several digits beyond
the decimal point. This precision arises from the sophisticated (and, for most
legal scholars, incomprehensible) methodology Martin and Quinn use.
Moreover, the Martin-Quinn scores are estimates, and they have their own
confidence intervals around them – ranges within which Martin and Quinn
calculate the actual ideal points are overwhelmingly likely to fall.
The apparent precision of the scores, then, is an artifact of statistical
techniques and reporting conventions. This precision, however, is not necessarily qualitatively meaningful. That is, knowing nothing else about the cases, is it meaningful to say that a case (or a Justice) with a score of 1.518 is
more conservative than one with a score of 1.516? And, if not, why make the
distinction? The approaches do not tell us at what point the distance between
scores becomes important or useful information. While this concern may not
matter when the Martin-Quinn or Jacobi-Sag scores are used for large-N empirical studies,164 it becomes more problematic, as I will explain below, if we
assume that the scores are telling us something substantive about the ideological nature of particular cases relative to each other.
A second problem with the Martin-Quinn scores is that while they improve on the binary, liberal-versus-conservative coding of the Database in
some respects, they nonetheless assume unidimensionality.165 More concrete162. Gratz v. Bollinger, 539 U.S. 244 (2003) (striking down undergraduate admissions program); Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding law school’s
admissions program).
163. I am indebted to David Klein for this insight.
164. “N” refers to the number of observations in a study. “Large-N” means that
there are many observations.
165. Fischman & Law, supra note 11, at 32 (noting that unidimensional ideology
coding may create “distortions” that we cannot identify).
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ly, the Martin-Quinn scores do not allow us to take into account the possibility that the Justices’ actual ideal points on the spectrum may vary relative to
each other depending on the legal issues, facts, or context of the cases. One
consequence of this unidimensionality is that, while Martin-Quinn scores for
each Justice vary from Term to Term, it is impossible to tell what those
changes mean other than that Justices vote with each other at somewhat different rates from Term to Term. In other words, the Martin-Quinn scores
reflect observed voting behavior. Ascribing that behavior solely to ideological ideal points requires a significant inferential leap, but that leap is necessary if we interpret changes in Martin-Quinn scores as changes in the Justices’ ideology.166 These criticisms of the Martin-Quinn scores lead to a criticism of the Jacobi-Sag approach. Changes in the Martin-Quinn scores of the
Justices from Term to Term lead to changes in the Jacobi-Sag scores for particular cases – changes that may not in fact be at all meaningful in understanding the relative ideological nature of those cases.
A third and related problem with Martin-Quinn scores – and hence with
the Jacobi-Sag approach – I mention with some hesitancy, as its existence and
significance is disputed in the literature.167 Nonetheless, it is potentially serious. It is the dual problem of selection effects and changes in the nature of
law over time. The Court, of course, has control over most of its docket, and
it may well choose to hear different mixes of cases in different Terms. As a
result, if the Justices’ ideal points vary with different types of cases, we might
see different voting coalitions depending on the mix of cases being heard
each Term, thereby causing the Justices’ Martin-Quinn scores to shift regardless of whether their ideological views have changed.168
166. This problem is sometimes called the problem of observational or behavioral
equivalence. See Fischman & Law, supra note 11. See also Ward Farnsworth, The
Uses and Limits of Martin-Quinn Scores to Assess Supreme Court Justices, With
Special Attention to the Problem of Ideological Drift, 101 NW. L. REV. 1891 (2007)
(explaining that the agreement and disagreement reflected in the Martin-Quinn scores
might have nothing to do with political ideology but might instead demonstrate
agreement or disagreement about law or legal reasoning).
167. See infra note 168.
168. Whether such shifts are artifacts of the mix of cases being heard or accurately
reflect changes in the Justices’ actual ideal points is disputed. Compare Epstein et al.,
supra note 147, at 1503-04 (claiming that the Martin-Quinn scale is consistent over
time and that the scores can therefore measure whether Justices’ ideal points shift or
“drift”), and Jacobi & Sag, supra note 147, at 2-3 (suggesting that reliance on the
Martin-Quinn scores produces “a valid and reliable mechanism of . . . comparing
cases via a consistent, objective standard”) (emphasis added), with Michael A. Bailey,
Comparable Preference Estimates Across Time and Institutions for the Court, Congress, and Presidency, 51 AM. J. POL. SCI. 433 (2007), Fischman & Law, supra note
11, at 153-55 (asserting that selection effects prevent the Martin-Quinn scale from
accurately assessing drift), and Farnsworth, supra note 166 (same). I find very powerful the intuition behind the claim that the scores may be affected by selection
effects. I am not in a position, however, to resolve the question here. On selection
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Moreover, changes in voting coalitions could be affected by developments in the law. Imagine a group of Justices who constitute a majority on
the Court and who consistently vote in favor of criminal defendants, expanding defendants’ constitutional rights and reading criminal and sentencing
statutes as leniently as possible. Suppose that, over time, due in part to this
group of Justices, criminal law in the United States shifts. Eventually, presumably, the law overall might coincide with these Justices’ ideal point(s). In
fact, the law, as developed in the lower courts (or by Congress), could even
trend beyond those ideal points. Then, these same Justices might begin to
vote against criminal defendants in some cases. If this shift were to occur,
some of our group of Justices might now find themselves voting with their
colleagues who used to dissent. Because the Martin-Quinn scores arise from
actual voting coalitions, the scores of our Justices would then shift in the direction of their formerly dissenting colleagues (and vice versa) – even though
their actual, internal ideal points have not shifted.
To understand how these concerns might affect the usefulness of the Jacobi-Sag scores in identifying case ideology, I returned to my sample of cases
and identified sets of cases that dealt with similar subject matter. I conclude
that the Jacobi-Sag scores may, at least sometimes, be missing the forest for
the trees by, like the Database, emphasizing ideology at the expense of other
significant factors in the Justices’ decisionmaking. Compare, for example,
Jerome B. Grubart, Inc. v. Chicago169 and Yamaha Motor Corp. v. Calhoun.170 Both cases involve maritime law and remedies, and both were decided unanimously, although in Grubart neither Justice Stevens nor Justice
Breyer took part in the decision and Justices Thomas and Scalia concurred
only in the judgment.171 In Grubart, the Court held that there was federal
maritime jurisdiction over tort actions against the barge company that allegedly negligently caused the Chicago flood.172 As a result of the case being
litigated under federal maritime law instead of state tort law, the barge company’s liability was limited to the value of the barges and tug involved, orders
of magnitude less than the actual damages suffered as a result of the flood.173
effects more generally, see Jonathan P. Kastellec & Jeffrey R. Lax, Case Selection
and the Study of Judicial Politics, 5 J. EMPIRICAL LEGAL STUD. 407 (2008). Others
have attempted to assess drift more directly. Professor Michael Bailey has developed
measures of changes in the Court’s and the Justices’ ideology over time by analyzing
what he calls “bridge observations” – cases presenting the same issue but decided at
different times. Bailey, supra.
169. 513 U.S. 527 (1995).
170. 516 U.S. 199 (1996).
171. They disagreed with the test that the Court used to determine whether maritime jurisdiction applied but agreed with the result.
172. Grubart, 513 U.S. at 529.
173. Id. at 530-31.
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Yamaha was a wrongful death action brought by the parents of a girl
who was killed in an accident involving a jet ski.174 The issue in the case was
whether, despite uncontested maritime jurisdiction, state law remedies were
available because the victim was a nonseaman.175 As in Grubart, the answer
to this apparently technical question was of great substantive importance: if
only maritime remedies applied, there was a possibility (albeit disputed) that
the plaintiffs could recover only funeral expenses.176 The Court held, 9-0
with no separate opinions, that state law remedies were not displaced and that
the plaintiffs, if successful, could recover the full range of state remedies,
such as damages for loss of society, support and services, and future earnings,
as well as punitive damages.177
So, is one of these opinions more conservative or more liberal than the
other? One might think that the answer is clearly yes – Yamaha is significantly more liberal than Grubart because it allows for broad tort liability,
while Grubart does not.178 Yet Grubart’s Jacobi-Sag score is only slightly to
the right of Yamaha’s (.691 versus .577).179 Here, then, the apparent precision of the scores does not reveal anything useful about the substantive differences between the cases. In fact, the difference in the scores is largely a
function of the recusal of two Justices in Grubart and the slight changes in
each Justice’s Martin-Quinn scores with each Term.
174. Yamaha, 516 U.S. at 201-02.
175. Id. at 205.
176. Id. at 203.
177. Id. at 202, 216. The Court left open the question of which state law would
govern. Id. at 216 n.14. The plaintiffs were residents of Pennsylvania, but the accident took place in Puerto Rico. Id. at 202-03 & n.1.
178. The Database codes Yamaha as a liberal economic activity decision and
Grubart as a liberal judicial power decision, presumably because it finds federal jurisdiction. See infra note 179 for a discussion of why that coding of Grubart is meaningless. In the Recoding Project, both cases received mixed ideology codes.
179. Calculating the Jacobi-Sag score for Grubart is somewhat complicated and
presents its own set of problems. Normally, the Jacobi-Sag median score for a unanimous case is simply set at the score of the median Justice of the Court. Because
Stevens and Breyer did not participate, however, the median Justice on the Grubart
Court is one spot to the right of the median Justice for that Term and so moves from
O’Connor (.666) to Kennedy (.691) for OT 1994. On the other hand, if Thomas and
Scalia are excluded from the majority since they concurred only in the judgment, the
Grubart Court’s median Justice shifts back to Justice O’Connor. Another difficulty
with scoring Grubart is that using the mean Martin-Quinn score causes wild fluctuations depending on whether we include Thomas and Scalia. It also is shifted substantially to the right given the lack of participation of Stevens and Breyer. If Thomas
and Scalia are included, the Jacobi-Sag score is 1.169, significantly to the right of
Yamaha and perhaps, in this case, the most descriptively accurate score. But if they
are excluded, the score is .389 – which is actually to Yamaha’s left. Such large fluctuation in the scores is a reason to use the median rather than the mean.
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More significantly, the comparison of the cases calls into question the
extent to which either or both cases were decided on the basis of ideology at
all. Issued not even a year apart, their holdings are – if understood ideologically – difficult to reconcile, particularly as both were decided unanimously
with Jacobi-Sag scores that are quite close to each other. There must be other
dimensions to these cases that are captured neither by Sag and Jacobi’s ingenious but unidimensional approach nor by the Database’s ideology coding.
Another pair of unanimous cases likewise raises questions about how
meaningful movement along the spectrum might be and highlights again the
problem of unidimensionality. In Rubin v. Coors Brewing Co., the Court
unanimously struck down a federal statute prohibiting beer labels from displaying alcohol content as violating the First Amendment.180 Rubin’s JacobiSag score is .666.181 In contrast, in Illinois ex rel. Madigan v. Telemarketing
Ass’n, the Court, again unanimously, rejected a First Amendment challenge
to a fraud claim brought by the State of Illinois against professional fundraisers.182 The suit alleged that the fundraisers had defrauded donors “by falsely
representing that ‘a significant amount of each dollar donated would be paid
over to’” the charity for which they were soliciting donations, when in fact
the fundraisers retained 85% of all the money they raised.183 Madigan’s Jacobi-Sag score is .227,184 suggesting that it should be considered more liberal
than Rubin. Perhaps so. If understood as economic activity cases, Rubin
would be seen as conservative (anti-regulation, pro-business), and Madigan
would be seen as liberal. Of course the opposite is true if they are seen as
First Amendment cases.185 But the only reason for the difference in their
scores here is that the cases were decided in different Terms. The median
Justice – O’Connor – is the same in both cases; the difference in the JacobiSag score is due to the difference in her Martin-Quinn score between OT
1994 and OT 2002. It is hard to see how this difference tells us anything
meaningful about the relative ideological character of these two unanimous
cases.
A third First Amendment case makes the point even more starkly. In
Buckley v. American Constitutional Law Foundation, Inc., the Court struck
down a series of regulations that Colorado had imposed on circulators of petitions for popular initiatives.186 Colorado required that the petition circulators
themselves be registered voters, that each circulator wear a badge with his or
180. 514 U.S. 476, 478 (1995).
181. Using the mean, it is .531.
182. 538 U.S. 600, 605-06 (2003).
183. Id. at 605.
184. Using the mean, it is .255.
185. The Database codes both as First Amendment cases, with the accompanying
ideology codes. In other words, the Database codes the relative ideology of these
cases as the opposite of the Jacobi-Sag scores. Recoded, both receive mixed ideology
codes.
186. 525 U.S. 182, 186-87 (1999).
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her name on it, and that the proponents of an initiative report the names and
addresses of paid circulators and the amount paid to them.187 The Court
struck down all of these requirements as violating the First Amendment.188
As to the identification badge, the vote was 8-1, with only Chief Justice
Rehnquist in dissent.189 As to the other requirements, Justices O’Connor and
Breyer also dissented.190
A mixed vote like this one might make assigning a Jacobi-Sag score a
bit messy, but because of the way the votes are distributed, the median Justice
of the majority – and therefore the Jacobi-Sag score – is the same for both the
full majority (8-1) and the partial majority (6-3).191 It is -0.75. But what does
it mean that the scores for both parts of the case are the same? 192 Certainly,
Justices Breyer and O’Connor saw important differences in the balance of
interests as between the different regulations – although they may well not
have seen those differences in ideological terms. Moreover, in this case, the
Justices at the far ends of the Martin-Quinn spectrum agreed with each other
– Justices Thomas, Scalia, Stevens, and Ginsburg all were in the majority.193
The distribution of votes in this case suggests that an attempt to explain the
case along a single dimension obscures relevant information about what led
the Justices to their decisions.
B. A Refinement: Identifying When There Are More Dimensions
The Martin-Quinn scores are unique among attempts to measure ideology in that they are dynamic. That dynamic nature is their strength – they
derive from the actual behavior of the actual Justices – but it can, as described
above, create weaknesses. On the other hand, that dynamism can perhaps be
exploited for even more information about the Justices’ voting behavior.
Recent work identifying and measuring “disordered voting” does just that.
187. Id. at 188-89.
188. Id. at 186-87.
189. See generally id.
190. See generally id.
191. For both, the score is the mean of the OT 1998 Martin-Quinn scores of Justice Souter (-0.899) and Justice Kennedy (0.75).
192. Using the mean of the majorities here, which does cause a shift, does not
seem particularly illuminating. For the 8-1 part of the decision, the mean is .284,
while, for the 6-3 part, it is .424. So the decision to strike down the registered voter
and ID badge provisions is scored as more liberal than the decision to strike down the
disclosure requirements. Nothing in the content of the case compels or justifies this
result. See generally Buckley, 525 U.S. 182.
193. Justice Thomas did not actually join the majority opinion. See generally id.
at 206-15 (Thomas, J., concurring in the judgment). He concurred in the judgment,
arguing for a stricter test of constitutionality than the majority used. Id. at 206 (advocating for use of strict scrutiny).
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In their 2008 article, Professors Paul Edelman, David Klein, and Stefanie Lindquist (“EKL”) capitalize on the Martin-Quinn scores to explore the
phenomenon of unexpected voting coalitions, or what they call “disordered
voting.”194 They define a case as disordered when the Justices’ votes are not
consistent with their relative positions on the Martin-Quinn spectrum.195
Buckley, with Justices Breyer, O’Connor, and Rehnquist in dissent,196 is disordered. So is, for example, a 7-2 decision where the dissenters are Justices
Thomas and Stevens197 or Justices Breyer and Rehnquist198 because there are
other Justices whose ideal points fall between the two dissenters in each of
those cases. In contrast, a 7-2 decision with Justices Scalia and Thomas in
dissent is ordered because Scalia’s and Thomas’s ideal points are next to each
other at one extreme of the spectrum.
EKL’s formula not only identifies when such voting occurs but also
measures the extent of a majority coalition’s disorder.199 So, if Justice
O’Connor is the median Justice, a 5-4 decision with Justice O’Connor in the
majority along with Justices Breyer, Ginsburg, Souter, and Stevens is an ordered case, with a disorder score of 0. The same is true for a 5-4 decision
with Justice O’Connor in the majority along with Justices Scalia, Thomas,
Kennedy, and Rehnquist. A 5-4 liberal majority, however, where Justice
Kennedy (who is the next most conservative Justice after O’Connor) votes
with the liberals and O’Connor votes with the conservatives, is disordered –
but only modestly so, as only Kennedy and O’Connor have switched places.
It will have a fairly low disorder score. In contrast, a 5-4 decision with a
majority of Scalia, Rehnquist, O’Connor, Souter, and Stevens is much more
disordered and will have a much higher disorder score.
194. Paul H. Edelman, David Klein & Stefanie A. Lindquist, Measuring Deviations from Expected Voting Patterns on Collegial Courts, 5 J. EMPIRICAL LEG. STUD.
819 (2008).
195. Id. at 829. The authors calculate the Justices’ ideal points by natural court,
not by Term. Id. at 829-30. For the Rehnquist 7 court, the order of Justices, from
lowest ideal point (generally interpreted as most liberal) to highest ideal point (interpreted as most conservative), is Stevens, Ginsburg, Souter, Breyer, O’Connor, Kennedy, Rehnquist, Scalia, Thomas. Id. at 830 tbl.1. So a case in which Stevens, Ginsburg, and Breyer dissent, but Souter does not, will count as disordered because Souter
has a lower ideal point than does Breyer. Likewise, a case in which Kennedy sides
with the liberal bloc in a 5-4 vote, with O’Connor in dissent, will count as disordered.
For some Terms, of course, Souter’s ideal point is higher than Breyer’s, and
O’Connor’s is higher than Kennedy’s. Whether such cases should really be considered disordered is debatable. They do, however, have quite low disorder scores. See
infra for a discussion of the relative magnitude of disorder scores.
196. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999).
197. See, e.g., Comm’r v. Lundy, 516 U.S. 235 (1996).
198. See, e.g., Lords Landing Village of Condo. Council of Unit Owners v. Cont’l
Ins. Co., 520 U.S. 893 (1997).
199. Edelman, Klein & Lindquist, supra note 194, at 825-27.
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EKL computed disorder scores for every nonunanimous orally argued
case decided by each natural court that lasted at least three terms.200 For
Rehnquist 7, the natural court on which I focus, the scores ranged from 0
(perfectly ordered) to a high of 1.356.201 Specifically, EKL found that
55.56% of nonunanimous cases were ordered but that 61.52% of civil liberties cases (broadly defined) were ordered.202 EKL suggest that civil liberties
cases may have a lower rate of disorder than other cases “perhaps [because
the] Justices feel more strongly about civil liberties issues and are less able to
put aside ideology in deciding them . . . .”203 Even in civil liberties cases,
however, nearly 40% of the nonunanimous cases were disordered.204
One important benefit of EKL’s approach is that it accepts the possibility of multidimensional preferences or factors in judicial decisionmaking and
begins to offer a way to identify when and how those preferences manifest
themselves. If the Justices do not simply vote liberal or conservative, or
move from left to right on a single line, their votes may vary with the case’s
subject matter, the law, or case facts, and these changes in voting behavior
may be reflected in the disorder scores. In this respect, EKL’s approach has
the potential to add a richness to our understanding of judicial decisionmaking that was not previously available.205 Specifically, the disorder scores
reveal some significant differences between cases that, under other approaches, are identified as having the same ideological character. Cases with the
same median Justice in the majority but different voting coalitions would
receive the same Jacobi-Sag score, yet they can be distinguished by disorder
score. Likewise, the disorder scores can add nuance to our understanding of
the ideological valence of cases identified as simply liberal or conservative in
the Supreme Court Database.
The disorder scores have their limitations, of course. EKL are conservative in their methodology and therefore likely to fail to identify all the cases
that are indeed multidimensional. By starting with the Martin-Quinn scores,
for example, EKL seem to accept the notion that, for most cases, there is a
single dimension that explains the Justices’ actions, and they likewise seem to
operate on the assumption that this dimension is ideology.206 But if the Justices are operating along many dimensions and are regularly weighing com-
200. Id. at 830. Unanimous cases are omitted because there can be no disorder (or
order) when all of the Justices vote the same way. Id.
201. Id. at 831. My dataset contained the same range.
202. Id. at 830.
203. Id. at 843.
204. Id. at 830.
205. It is worth noting that the same logic might apply to unanimous cases as well
as to any case in which typical voting partners are separated, even when the case is
ordered.
206. See id. at 843.
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123
peting interests, there may in fact be more “disorder” than EKL account
for.207
Nonetheless, EKL’s disorder scores may give us a window into the
question of what kinds of issues, facts, or contexts are more salient to some
Justices than to others. As EKL hypothesize, “We feel justified in concluding
that . . . unexpected voting patterns are frequently caused by other considerations outweighing ideology in the thinking of at least some Justices.”208
So what might those other considerations be? By way of example, I focus here on Justice Breyer and his well-known pragmatism.209 I theorized
that Breyer is more likely to be “out of place” (leading to a “disordered” case)
when he is voting to defer to the judgments of an agency or other entity that is
either expert or closer to the facts on the ground, when he is concerned about
the administrability of a particular holding, or when he wants to allow government actors room to experiment. In fact, a review of the six cases in my
dataset in which Justice Breyer is out of place reveals that five of them meet
this description. In other words, one of the “other considerations,” as EKL
put it, or one additional dimension might, for Justice Breyer, be his pragmatism.210
In Schenck, for example, Justice Breyer was the only Justice who voted
to uphold the district court’s entire injunction.211 All of the other Justices
voted to strike down the portion of the injunction that they construed to pro207. The term “disorder” itself implies a deviation from the normal unidimensional order.
208. Edelman, Klein & Lindquist, supra note 194, at 843. EKL do not find that
multiple issue coding in the Database is more likely to lead to disordered voting. Id.
at 843. They express surprise at this result because multidimensionality is the attitudinalist’s explanation for surprising votes – the Justices simply have different preferences along different dimensions. Id. Of course, the Database systematically omits
an enormous amount of information about the legal issues in the cases, so reliance on
its multiple issue coding to identify multidimensionality is problematic. Shapiro,
supra note 47, at 503-04, 515-16.
209. Justice Breyer is explicitly and deliberately concerned about the real-world
consequences of the Court’s decisions. See STEPHEN BREYER, ACTIVE LIBERTY:
INTERPRETING OUR DEMOCRATIC CONSTITUTION 115-32 (2005). His pragmatism has
not escaped the notice of commentators. A search in Westlaw’s JLR database for
Breyer /s pragmati! produced 264 results (search conducted on January 1, 2010). See,
e.g, Paul Gewirtz, The Pragmatic Passion of Justice Breyer, 115 YALE L. J. 1675
(2006); Cass Sunstein, Justice Breyer’s Democratic Pragmatism, 115 YALE L.J. 1719
(2006); Michael J. Zimmer, A Pro-Employee Supreme Court?: The Retaliation Decisions, 60 S.C. L. REV. 917, 924 (2009) (noting that “Justice Breyer advocates a method of statutory interpretation aimed at determining the purpose of the legislation,
which is fundamentally a pragmatic approach”).
210. At other times in the country’s history, Breyer’s willingness to defer to administrative agencies and other government entities might have itself been a hotbutton issue seen in more ideological terms.
211. See Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357 (1997).
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hibit abortion protesters to approach within fifteen feet of people entering and
leaving the clinic.212 Justice Breyer, on the other hand, argued not only that
the injunction did not have to be so construed but also that it should be “left []
to the District Court to resolve in the first instance any linguistic ambiguity
that might create a constitutional problem.”213 He explained,
The District Court understands the history, and thus the meaning,
of the language in context better than do we. If the petitioners
[abortion protesters] show a need for interpretation or modification
of the language, the District Court, which is directly familiar with
the facts underlying the injunction, can respond quickly and flexibly.214
Similar concerns arise in other cases in which he is out of place, even
when he did not write the opinion himself. In Buckley, for example, Justice
Breyer joined Justice O’Connor’s partial dissent.215 Both Justices would have
upheld Colorado’s requirement that petition circulators be registered voters
against a First Amendment challenge, in part for a very practical reason:
In the past, Colorado has had difficulty enforcing its prohibition on
circulation fraud, in particular its law against forging petition signatures, because violators fled the State . . . . Colorado has shown
that the registration requirement is an easy and a verifiable way to
212. See id.
213. Id. at 399 (Breyer, J., concurring in part and dissenting in part).
214. Id. (emphasis added); see also Nat’l Park Hospitality Ass’n v. Dep’t of the
Interior, 538 U.S. 803, 817-21 (2003) (Breyer, J., dissenting) (disagreeing with the
Court’s holding that plaintiffs, who wished to challenge the validity of a regulation,
did not have standing and indicating that he would uphold regulation; joined by the
only other dissenter, Justice O’Connor); Almendarez-Torres v. United States, 523
U.S. 224 (1998) (holding in majority opinion that statute authorizing additional prison
time for certain illegal immigrants was a sentence enhancement and not a separate
offense, so no mention in indictment was required; joined in majority by Justices
Thomas, Kennedy, O’Connor, and the Chief Justice). But see Verizon Commc’ns,
Inc. v. F.C.C., 535 U.S. 467, 539 (2002) (Breyer, J., concurring in part and dissenting
in part) (arguing that challenged regulations were not authorized by the relevant statute; joined in part by Justice Scalia). Outside of my dataset, there are many other
examples of disordered cases in which Justice Breyer is out of place that are consistent with my theory that he is motivated in part by administrative pragmatism. See,
e.g., Clinton v. New York, 524 U.S. 417 (1998) (voting, in dissent and joined by
Justices Scalia and O’Connor, to uphold line-item veto); Vernonia Sch. Dist. 47J v.
Acton, 515 U.S. 646 (1995) (joining majority of Justices Scalia, Thomas, Kennedy,
and the Chief Justice to hold that schools can constitutionally require athletes to submit to random drug tests).
215. See Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999).
2010]
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125
ensure that petition circulators fall under the State’s subpoena
power.216
Likewise, in Lords Landing, Justice Breyer joined the Chief Justice’s
dissent from a per curiam order to grant, vacate, and remand (GVR).217 The
Court sent the case back to the Fourth Circuit for consideration of a recently
decided state supreme court case, even though that case had already been
presented to the Fourth Circuit on a motion to recall the mandate.218 The
dissent argued not that the Fourth Circuit had reached the right result in the
first place but rather that the GVR mechanism was inappropriate and confusing. The Court, the dissent said,
should either set the case for argument or summarily reverse.
True, this would require the investment of still more time and effort in a case that is in the federal courts only reason of diversity of
citizenship . . . but it would have the virtue of explicitly telling the
Court of Appeals how to dispose of the case. The Court’s decision
to grant, vacate, and remand . . . on the contrary, is muddled and
cryptic. Surely the judges of the Court of Appeals are, in fairness,
entitled to some clearer guidance from this Court than what they
are now given.219
A theory of judging that focuses only on a single dimension of ideology
might conclude that Justice Breyer’s views on abortion are more liberal than
any of his colleagues or that his views of the First Amendment are more conservative. But this is only one possible explanation for his votes, and it is not
the most likely one. Instead, by looking at his opinions (or the opinions he
joins) in the cases in which he is out of place, we can identify themes that
may, at least in some cases, be more salient to him than ideological considerations220 or whatever other considerations that normally align him with
particular members of the Court. The disorder scores offer a way to capital216. Id. at 220 (O’Connor, J., concurring in part and dissenting in part, joined by
Breyer, J.).
217. See Lords Landing Village of Condo. Council of Unit Owners v. Cont’l Ins.
Co., 520 U.S. 893 (1997).
218. See id. at 894. Normally, the Supreme Court does not GVR in light of a new
legal development when the lower court has already had an opportunity to consider it.
ROBERT L. STERN, EUGENE GRESSMAN, STEPHEN M. SHAPIRO, KENNETH S. GELLER,
SUPREME COURT PRACTICE 318 (8th ed. 2002).
219. Lords Landing, 520 U.S. at 898 (Rehnquist, C.J., dissenting, joined by Breyer, J.) (emphasis added).
220. In some cases, of course, his ideological preferences may point in the same
direction as his desire to defer to the expert or more knowledgeable government entity. See, e.g., Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S.
701, 803 (2007) (Breyer, J., dissenting).
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ize on the dynamic nature of the Martin-Quinn scores, one that holds the potential to begin studying the multidimensional nature of judicial decisionmaking.
V. IDEOLOGICAL SALIENCE AND IDEOLOGICAL LEGITIMACY:
A WAY FORWARD?
A. Defining Terms
Although this Article critiques many empirical scholars’ attempts to
identify the ideological character of Supreme Court opinions, I do not wish to
deny the significant role of ideology in judging, particularly in Supreme
Court judging. To the contrary, ideology (or, to use a gentler term, policy or
political judgments) inevitably plays a role in much of the Supreme Court’s
work. The Supreme Court often addresses difficult and contested political
questions – questions to which there is simply no objectively correct answer.
Instead, there are judgments to be made. The question of whether a sitting
President has immunity from suit is one such question.221 Whether or when
the Constitution permits public displays of the Ten Commandments is another.222 That these cases involve political judgments does not mean that legal
arguments and sources are irrelevant, of course, but it does mean both that the
law in such cases is indeterminate and that the indeterminacy must be resolved by largely political judgments.223
Such political resolutions are not intrinsically illegitimate, notwithstanding Chief Justice Roberts’s and Justice Sotomayor’s claims about neutrality.224 In some cases, the Justices would not be doing their jobs if they did not
make political judgments. In other words, in some cases, judging based on
ideology is legitimate.225 Parents Involved, the recent case adjudicating a
221. See Clinton v. Jones, 520 U.S. 681 (1997).
222. See Van Orden v. Perry, 545 U.S. 677 (2005); McCreary County, Ky. v.
ACLU of Ky., 545 U.S. 844 (2005).
223. Some readers might complain that I have fallen into the trap of distinguishing
between ideology on the one hand and law on the other, as if they are analytically
distinct. See, e.g., BAUM, supra note 12, at 10; Stephen B. Burbank, On the Study of
Judicial Behaviors: Of Law, Politics, Science and Humility, at 20, available at
http://papers.ssrn.com/abstract=1393362, Posner, supra note 10, at 43. These complaints are both true and inevitable. In fact, however, my goal here – consistent with
these authors – is to acknowledge that ideology, especially on the Supreme Court, is a
factor in the Justices’ decisions, while rejecting attempts to describe Supreme Court
cases only in ideological terms.
224. See Nomination of Judge John G. Roberts, Jr., supra note 1; Nomination of
Judge Sonia Sotomayor, supra note 2; see also discussion supra, Part I.
225. Some might contest this assertion, claiming, for example, that originalism
and textualism can provide objective and non-ideological answers. See, e.g., Michael
W. McConnell, Active Liberty: A Progressive Alternative to Textualism and Original-
2010]
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127
challenge to the Louisville and Seattle schools’ voluntary desegregation efforts is a good example.226 Although there were legal arguments to be made,
the key textual sources – both Brown v. Board of Education and the Constitution itself – failed to explicitly dictate a result.227 Ultimately, therefore, the
outcome was determined by the Justices’ political judgments, informed by
their value-laden understanding of the meaning of Brown.228 The case could
not have been decided in the absence of these judgments.
ism, 119 HARV. L. REV. 2387, 2415 (2006) (reviewing STEPHEN G. BREYER, ACTIVE
LIBERTY (2005)) (arguing that textualism-originalism “is not an ideological position,
but one that safeguards the distinction between law and politics” and that “in principle
the textualist-originalist approach supplies an objective basis for judgment that does
not merely reflect the judge’s own ideological stance”). Such an approach, however,
suffers from the same hidden subjectivity as does the Supreme Court Database’s coding systems. Value judgments must still be made, but they will be masked by a veneer of neutrality. See STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR
DEMOCRATIC CONSTITUTION (2005); Thomas B. Colby & Peter J. Smith, Living Originalism, 59 DUKE L.J. 239 (2009).
226. Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,
803 (2007).
227. See Christopher W. Schmidt, Brown and the Colorblind Constitution, 94
CORNELL L. REV. 203 (2008).
228. Chief Justice Roberts’s plurality opinion attempted to present its conclusion
that race-based decisionmaking by school districts is virtually always unconstitutional
as if it were required by value-neutral legal reasoning and reliance on Brown. This
aspect of the opinion has been widely criticized, for example, as “disingenuous,” Joel
K. Goldstein, Not Hearing History: A Critique of Chief Justice Roberts’s Reinterpretation of Brown, 691 OHIO ST. L.J. 791, 793 (2008), for “pretend[ing] . . . that invalidation of the . . . programs was compelled by . . . Brown,” POSNER, supra note 10, at
313, and for failing to discuss the factual context of Brown, “an omission [that] is
historically and intellectually misleading, if not dishonest.” Vikram David Amar, The
Supreme Court’s Problematic Use of Precedent Over the Past Term: Why Overruling
or Refashioning May, In Some Cases, Be Better than Selective Interpretation, FindLaw, July 20, 2007, http:// writ.news.findlaw.com/amar/20070720.html. Such criticism of the opinion was not limited to those who disagreed with its conclusions. In a
Harvard Law Review article, Fourth Circuit Judge J. Harvie Wilkinson, in full agreement with Chief Justice Roberts’s plurality opinion, expresses a wish that the opinion
had engaged in a discussion of Brown’s meaning in historical context. J. Harvie Wilkinson III, The Seattle and Louisville Cases: There Is No Other Way, 121 HARV. L.
REV. 158 (2007). He concludes,
The whole sad saga of the early African American experience teaches that
racial decisions by the state remain unique in their capacity to demean.
To squeeze human beings of varying talents, interests, and backgrounds
into an undifferentiated category of race is to submerge what should matter most about us under what should matter least. To seize upon this one
proven odious criterion of judgment as the basis for preferment of some
and disfavor for others, and as a potential determinant of the destiny of all,
is to commit this country to the perpetuation of means employed in the
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Arguing for the legitimacy of ideological or political considerations in
judging in certain types of cases does not mean that one must accept any result in such a case as right.229 What it does mean, however, is that the most
powerful arguments about the case must explicitly incorporate policy and
political judgments. One can argue, for example, as Judge Posner does, that
Parents Involved was wrongly decided because it prevents school districts
from experimenting with the “vexing issue of race”230 or, as Justice Breyer
did, that the school districts had compelling interests in considering race in
school assignments, including the need to “help create citizens better prepared to know, to understand, and to work with people of all races and backgrounds . . . .”231 One can argue, as Justice Kennedy did, that we must take
account of race now in order to keep it from mattering later but that the specific race-based school assignments at issue were not justified.232 Or one can
argue for the colorblind Constitution, as Justice Thomas did, pointing out that
“if our history has taught us anything, it has taught us to beware of elites
bearing racial theories.”233 No one person can agree with all of these arguments, but we can agree that they are the kinds of arguments that are appropriate for the Justices to make in a case like Parents Involved.234
But not every case is like Parents Involved. Even in the Supreme Court,
there are many cases that do not appear to have been considered by the Justices primarily in ideological terms. So this discussion returns us to the normative questions raised in this Article’s introduction: when is it legitimate for
the Justices to make decisions motivated in whole or in part by ideology, and
do we think that they strike the right balance between ideology and other
considerations? A focus on these questions suggests that, rather than trying
to identify a decision’s liberalness or conservativeness, empirical scholars
might instead focus on the relative importance or salience of ideology – to the
Justices themselves – in different cases.235 In so doing, empirical scholars
darkest hours of its history. From this, the Fourteenth Amendment was
supposed to be the instrument of deliverance.
Id. at 163-64.
229. Like many other commentators, I strongly reject the plurality opinion and
agree with Justice Breyer’s dissent. But a discussion of the merits of the case is
beyond the scope of this Article.
230. POSNER, supra note 10, at 313.
231. Parents Involved, 551 U.S. at 843 (Breyer, J., dissenting).
232. Id. at 782-98 (Kennedy, J., concurring in part and concurring in the judgment).
233. Id. at 780-81 (Thomas, J., concurring).
234. See supra note 228 for a discussion of Judge Wilkinson’s political argument
in support of the Parents Involved plurality opinion.
235. Cf. Stephen B. Burbank, On the Study of Judicial Behaviors: Of Law, Politics, Science and Humility, at 13, available at http://papers.ssrn.com/abstract=
2010]
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can move beyond the basic assumption that ideology is almost always the
dominant factor in judicial decisionmaking or that it is the most important
aspect of a case. Analyzing the role of ideology in such a nuanced and functional way would begin to acknowledge the complexity of judicial decisionmaking in ways that legal scholars have long called for.236
B. Is Measuring Ideological Salience Possible?
However valuable the concept of ideological salience might be, it is not
likely to be embraced by empirical scholars unless there are relatively objective ways to identify and measure it. In this subpart, I explore some of the
factors that may help scholars do just that. The specifics here are more conceptual than functional, and I do not offer a measure that other scholars can
begin to use. Nonetheless, I identify a number of objectively measureable
factors that can together provide at least a partial picture of the salience of
ideology in different Supreme Court cases.237
1. Possible Indicators of Ideological Salience
a. Distance from the Court’s Median
One lesson of Sag and Jacobi’s efforts is that the relative location of the
median Justice in the majority can be a useful indicator of the ideological
orientation of a case, as the comparison of the two voting rights cases
showed.238 As discussed in Part IV, however, the specific Martin-Quinn
scores of these median Justices, attached to each case as its Jacobi-Sag score
of ideology, do not add substance to this understanding. In fact, those scores
probably overstate the ideological distance between the two cases.239 But
1393362 (asserting that it is a mistake to “assume that the relationship between ‘judicial politics’ and ‘law’ is or should be the same . . . even for judges on the same court
in every type of case”).
236. See, e.g., id.; Shapiro, supra note 47; Barry Friedman, Taking Law Seriously,
4 PERSP. ON POL. 261 (2006); Emerson H. Tiller & Frank B. Cross, What Is Legal
Doctrine?, 100 NW. U. L. REV. 517, 522-25 (2005).
237. I do not focus here on ideological salience for each Justice. But obviously, in
any given case, different Justices may rely on ideology to greater or lesser extents.
238. See Jacobi & Sag, supra note 147; see also supra Part IV.A. In those two 54 decisions, Justice O’Connor was the swing vote, and all other Justices voted with
their customary blocs. So in Bush v. Vera, with a conservative majority, the median
Justice is Justice Rehnquist. In Easley, on the other hand, in which the liberal bloc is
in the majority, the median Justice is Justice Ginsburg. Knowing nothing else about
these cases other than who the majorities’ median Justices are, we have some reasonably good information about their relative ideological orientation. See Easley v.
Cromartie, 532 U.S. 234 (2001); Bush v. Vera, 517 U.S. 952 (1996).
239. See supra Part IV.A.
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there is valuable information in the number of places the median Justice in
the majority is from the median Justice on the Court. That information is not
how liberal or conservative the case is, but instead is suggestive of the extent
to which the Justices relied on ideology in their resolution of the case. In a
unanimous case, the median Justice is the median Justice on the Court. In
Bush v. Vera, in contrast, the median Justice in the majority is the third most
conservative Justice, while in Easley the majority’s median is the third most
liberal member of the Court. Knowing that the median Justice is as far away
from the Court’s median as possible on a nine-member Court can help to
orient us to the ideological intensity of the case.
b. Disordered Voting
As the discussion of disordered cases demonstrates, information about
the relative position of the majority’s median Justice is not enough, by itself,
to tell us how central ideology might have been to the decision in the case.240
A majority made up of Chief Justice Rehnquist and Justices Scalia, Thomas,
Ginsburg, and Stevens has the same median Justice – Chief Justice Rehnquist
– as a majority consisting of Chief Justice Rehnquist and Justices Scalia,
Thomas, O’Connor, and Kennedy (the majority in Bush v. Vera). The insight
that EKL capitalize on in their concept of disordered voting is that these two
majorities do not strike us as having the same ideological valence – even if
we know nothing else about the cases. To identify ideological salience, then,
in addition to knowing how far from the Court’s median Justice the majority’s median is, we might want to know if a case is disordered and whether it
is very disordered or only slightly so – information provided by EKL’s disorder scores. The scores can help identify cases that divided the Court along
predictable ideological lines and cases that did not.241 Specifically, the more
disordered a case is, the less likely it is to be ideologically salient.
c. Vote Margin
Not all ordered cases are necessarily ideologically salient, however. A
case with only one or two dissenters, for example, may be a perfectly ordered
case. Where Justice Stevens alone dissents, for example, there is no disorder.
240. See supra Part IV.B.
241. Disorder may not be the only way to identify the less ideologically salient
cases. An ordered case is one in which Justice Thomas dissents alone. But one might
wonder why Justice Scalia, his frequent coalition partner, did not join him. An ordered case is likewise one in which Justices Stevens, Ginsburg, and Souter are all in
dissent, with Breyer in the majority. The same question arises – since Breyer’s ideal
point is so close to Souter’s and Ginsburg’s that from Term to Term they switch places on the spectrum, does ideology explain the voting? So we might want to look at
deviations not only from order but also from traditional coalitions to help us identify
cases that lack ideological salience.
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131
But if all eight of the other Justices agree on the outcome, it seems unlikely
that all eight perceived the case largely ideologically. At least on the Rehnquist 7 court, generally speaking, an ordered 5-4 decision is likely much more
ideologically salient than is an ordered 7-2 decision. And as others have observed, unanimous cases are particularly unlikely to have been ideological
salient. In addition to a case’s disorder score, then, we might also want to
look at the vote margin.
d. Other Possible Variables
There are other possible indicators of ideological salience. The widely
used measure of salience in a more public sense – appearance on the front
page of The New York Times the day after announcement – often denotes
ideologically fraught decisions.242 Likewise, a Justice’s decision to read his
or her dissent from the bench, especially in a close case, often signals a
pitched ideological battle on the Court.243 And, of course, scholars may be
able to identify other factors that should be considered.
2. Challenges in Using the Indicators
There are, of course, challenges to be overcome in developing a functional measure of ideological salience. Among other things, some of the variables discussed above need to be refined. For example, EKL’s measure of
disordered voting, which is based on the Martin-Quinn scores, undoubtedly
suffers from the problem of artificial precision.244 Instead of relying on the
specific disorder scores, then, we might want to divide the scores into categories – highly disordered, somewhat disordered, slightly disordered, etc.245
Likewise, there are important decisions to be made about how and whether to
account for separate opinions like concurrences only in the judgment, which
might signal ideological disagreement.246 We might also want to consider
242. Lee Epstein & Jeffrey A. Segal, Measuring Issue Salience, 44 AM. J. POL.
SCI. 66, 72-73 (2000).
243. Christopher W. Schmidt & Carolyn Shapiro, Oral Dissenting on the Supreme
Court (forthcoming) (working title).
244. See supra Part IV.A for a discussion of the problem of too much precision in
the Martin-Quinn scores.
245. An additional consideration in using the disorder scores is that EKL calculated the scores by natural court, not by Term, and calculated them only for natural
courts that existed for at least three Terms. Edelman, Klein & Lindquist, supra note
194.
246. In this Article, I have followed the convention of counting all votes for a
particular outcome together. So, for example, I have counted Clinton v. Jones as a
unanimous case, even though Justice Breyer concurred only in the judgment and was
quite critical of the majority opinion. But this convention may not be appropriate
when identifying ideological salience.
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whether and how factors indicating ideological salience might vary in different eras of the Court. Although ideologically contentious cases have recently
been decided with a 5-4 vote, for example, for some earlier eras of the Court,
different vote margins might be more indicative of ideological salience.
Identifying (some of) the objective indicators of ideological salience of
course leaves open the question of how to use those indicators. There is no
scientific way to aggregate them into a single measure of ideological salience.
Nonetheless, to get a sense of whether, together, the factors described above
identify cases that seem intuitively to be more ideologically driven than others, I put them together into a “salience score.” The specifics of the aggregation can be found in Appendix B. The primary guiding principle, however,
was that no single variable should completely dominate. To emphasize, this
method is entirely experimental, designed to evaluate qualitatively whether
my general approach to identifying ideological salience is on the right track.
I am not proposing a measure that scholars can begin to use.
For each of the 95 cases in my dataset, I calculated a “salience score”
based on the factors I identified. A list of the cases, ordered by salience
score, is in Appendix B. The highest (most salient) score was 2.875, and the
lowest (least salient) was -2.525. Looking at the cases with the highest scores
on this measure and working down to the lowest scores, the list generally
comported with my sense of which cases were the most ideologically salient.
The three cases with the highest scores were Bush v. Vera and Easley, the two
hotly contested voting rights cases discussed earlier, and Printz, the controversial Brady Bill case.247 All of these cases were 5-4 decisions, and all involved some of the Rehnquist 7 court’s most contested issues – issues of race
and voting rights for Bush and Easley and federalism for Printz. And, as expected, unanimous cases were, for the most part, clustered at the bottom of
the list, with a few high profile ones, such as Clinton v. Jones, higher up.
The differences in salience scores between cases with similar subject
matter were also generally consistent with what one might predict. Grubart
and Yamaha, the two maritime law cases, both had very low salience scores
(-2.275 and -2.525 respectively), as did Rubin and Madigan, the two unanimous First Amendment cases (both -2.525). On the other hand, Buckley, the
First Amendment case challenging Colorado’s requirements for petitions on
voter initiatives and in which the Court split into unusual coalitions, received
a higher score (-0.465), indicating somewhat more ideological salience, but
not such a high score as to suggest that ideology dominated the decision.
A comparison of the scores of two high-profile War on Terror cases is
likewise instructive. In both Rasul v. Bush and Hamdi v. Rumsfeld, the Court
held that War on Terror detainees had the right to contest their detention.248
247. See Easley v. Cromartie, 532 U.S. 234 (2001); Printz v. United States, 521
U.S. 898 (1997); Bush v. Vera, 517 U.S. 952 (1996).
248. Rasul v. Bush, 542 U.S. 466 (2004); Hamdi v. Rumsfeld, 542 U.S. 502
(2004).
2010]
THE CONTEXT OF IDEOLOGY
133
Although the cases were decided the same day, their voting coalitions were
quite different. Rasul, which involved a foreign national detained at Guantanamo Bay, was an ordered 6-3 decision, with Chief Justice Rehnquist and
Justices Scalia and Thomas in dissent. Hamdi, however, which involved an
American citizen held in South Carolina, was highly disordered. Justice
Thomas alone would have denied Hamdi the right to challenge his detention.
Justices Scalia and Stevens dissented together, but they took the opposite
position, arguing that the Court did not go far enough in asserting limits on
the government’s ability to detain U.S. citizens. Based on these voting coalitions, it appears that Hamdi had less ideological salience than did Rasul. On
the other hand, one would expect a case on such a divisive and high-profile
subject to carry a fair amount of ideological baggage, regardless of the voting
line-up. Consistent with these expectations, both cases have relatively high
salience scores, but Rasul’s score (2.125) is higher than Hamdi’s (1.625).
Again, I do not offer this “salience score” for scholars to begin using. It
is undertheorized and unproven. Future research and experimentation is
needed to make such an approach functional for researchers. Whatever its
limitations, however, the approach offers the possibility of new insights into
Supreme Court decisionmaking. Specifically, such an approach may well
make it possible to challenge the traditional assumption of empirical scholars
that ideology dominates Supreme Court decisionmaking without either abandoning the project of empirical legal scholarship or attempting to identify
every non-ideological factor that the Justices might consider (a plainly impossible task).
C. Learning from Ideological Salience
Distinguishing between cases of high and low ideological salience opens
the door to a variety of research questions through which scholars can better
investigate the relative role of law, legal indeterminacy, and institutional considerations in different kinds of cases. For example, we could examine
whether the Justices use different kinds of arguments in more ideologically
salient cases than in less ideologically salient ones. The recent work of Professors Brudney and Ditslear – examining the Court’s use of legislative history and canons of statutory construction in the somewhat ideologically charged
area of workplace law compared with the more technocratic area of tax law –
certainly suggests that such comparisons would be fruitful avenues for more
research.249
Identifying ideological salience also would allow us to study how the
subject matter of high-ideological-salience cases changes over time. After
all, one thing we learn from Harvey and Woodruff’s work is that historical
context matters – and, I argue, it should matter – for evaluating the ideologi-
249. See generally Brudney & Ditslear, supra note 8.
70
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[Vol. 75
cal nature of a case.250 As Professors Epstein and Segal have argued, for
example, the ideological significance of the First Amendment has shifted
since the days of the Warren Court.251 Today, while we continue to see contentious First Amendment cases, there are many First Amendment cases that,
even when they are high profile, do not closely divide the Court (or do not
divide it at all) and do not seem to fall out along predictable ideological lines.
Buckley,252 Rubin,253 Schenck,254 and Madigan255 all illustrate this point.
Similarly, charting shifts in ideological salience creates the possibility of
studying how particular doctrines move from being controversial to being
mainstream or vice versa.
Identifying subject matter or cases likely to be highly ideologically salient on a particular Court might also help us study strategic behavior. Specifically, we may be able, more systematically, to identify cases, like
NAMUDNO or Clinton v. Jones, that initially appear ideologically salient due
to their subject matter but that end with unanimous decisions or lopsided majorities. Such cases suggest the possibility of comparing measures or predictions of ideological salience ex ante – before the decision – with measures,
like the one I have proposed, that seek to identify ideological salience ex post.
Perhaps most importantly, however, thinking about cases in terms of
ideological salience allows us to make some normative judgments. We can
focus on those cases that are ideologically salient, for example, and within
that group, we can face the difficult but important question of whether the
Justices’ reliance on ideology in those cases was appropriate – whether it was
ideologically legitimate – and why. When and how should the Justices make
political decisions? Should they adopt (or strengthen) norms of deference to
the political branches when they confront such cases? How much candor
about what they are doing is appropriate when they decide them? These
questions are not empirical questions. But by shifting their focus to ideological salience, empirical scholars can meaningfully contribute to these important debates.
VI. CONCLUSION
In this Article, I have critiqued empirical scholars’ efforts to identify and
assess ideology in judging. But I have also tried to build on those efforts and
to propose a new way for empirical scholars to think about ideology. This
new way would not give us objective and consistent measures of how far to
the left or right particular cases are. Rather, it would allow us to evaluate the
250.
251.
252.
253.
254.
255.
See generally Harvey & Woodruff, supra note 51.
See generally Epstein & Segal, supra note 63.
Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999).
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).
Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357 (1997).
Ill. ex rel. Madigan v. Telemarketing Assocs., 538 U.S. 600 (2003).
2010]
THE CONTEXT OF IDEOLOGY
135
likelihood that ideology played a large role in a particular case, a question
that has long been ignored or assumed away in empirical legal scholarship.
Distinguishing between cases that are and are not ideologically salient
opens the door to a whole new set of empirical questions. With that information, we can, for example, work to identify other factors and dimensions that
might be of importance to all or some of the Justices. We can also evaluate
and compare the roles of law and legal reasoning in ideologically salient and
non-salient cases, and we might be better able to identify cases in which there
is a strong likelihood of strategic behavior.
Most importantly, however, identifying ideologically salient cases
brings the promise of meaningful normative discussions about whether that
salience and the Justices’ responses to it are appropriate. These discussions
would join empirical legal scholars in important conversations with the rest of
the legal academy. And perhaps these discussions could even add candor to
the public debate about the role of ideology in the work of the Supreme
Court. Ideally, such candor could make confirmation possible for a Supreme
Court nominee who professes that ideology – or policy judgments – inevitably will play some role in his or her work, allowing the Senate and the public
to evaluate the nature of that ideology and how the nominee is likely to use it.
A public debate and a confirmation process that no longer require disingenuous claims of absolute neutrality would be both more honest and more democratic. Contributing to such developments is a worthy goal for empirical
legal scholarship.
71
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[Vol. 75
APPENDIX A
Cases in Recoding Sample (Chronological Order)
L.Ed.2d cite
130/0219
130/0454
130/1024
131/0324
131/0395
131/0403
131/0532
133/0578
133/0611
134/0034
134/0577
135/0036
135/0248
135/0843
136/0347
136/0696
137/0001
137/0041
137/0055
137/0063
137/0093
137/0281
137/0945
137/0980
138/0091
138/0120
138/0162
138/0285
138/0914
139/0433
Case Name and U.S. Reports Cite
Austin v. United States, 513 U.S. 5 (1994).
Reich v. Collins, 513 U.S. 106 (1994).
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock
Co., 513 U.S. 527 (1995).
Whitaker v. Super. Ct., 514 U.S. 208 (1995).
Heintz v. Jenkins, 514 U.S. 291 (1995).
Celotex Corp. v. Edwards, 514 U.S. 300 (1995).
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).
Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199
(1996).
Comm’r v. Lundy, 516 U.S. 235 (1996).
Norfolk & W. Ry. Co. v. Hiles, 516 U.S. 400 (1996).
Markman v. Westview Instruments, Inc., 517 U.S. 370
(1996).
Loving v. United States, 517 U.S. 748 (1996).
Bush v. Vera, 517 U.S. 952 (1996).
Bd. of County Comm’rs. v. Umbehr, 518 U.S. 668
(1996).
Ohio v. Robinette, 519 U.S. 33 (1996).
Babbit v. Youpee, 519 U.S. 234 (1997).
Schenck v. Pro-Choice Network of W.N.Y., 519 U.S.
357 (1997).
Maryland v. Wilson, 519 U.S. 408 (1997).
Regents of the Univ. of Cal. v. Doe, 519 U.S. 425
(1997).
Lynce v. Mathis, 519 U.S. 433 (1997).
Dunn v. Commodity Futures Trading Comm’n, 519
U.S. 465 (1997).
Bennett v. Spear, 520 U.S. 154 (1997).
Clinton v. Jones, 520 U.S. 681 (1997).
Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725
(1997).
Lords Landing Vill. Condo. Council of Unit Owners v.
Cont’l Ins. Co., 520 U.S. 893 (1997).
Gilbert v. Homar, 520 U.S. 924 (1997).
Mazurek v. Armstrong, 520 U.S. 968 (1997).
Abrams v. Johnson, 521 U.S. 74 (1997).
Printz v. United States, 521 U.S. 898 (1997).
Jefferson v. City of Tarrant, 522 U.S. 75 (1997).
2010]
139/0702
140/0350
140/0542
140/0759
140/0875
140/0970
141/0222
142/0599
143/0818
144/0067
144/0347
144/0494
146/0236
146/0374
146/0530
146/0542
146/0561
146/0707
147/0105
147/0374
148/0373
148/0576
149/0164
149/0430
149/0590
149/0674
151/0489
151/0659
151/0820
152/0437
152/0701
152/0888
153/0027
THE CONTEXT OF IDEOLOGY
137
Buchanan v. Angelone, 522 U.S. 269 (1998).
Almendarez-Torres v. United States, 523 U.S. 224
(1998).
Atl. Mut. Ins. Co. v. Comm’r, 523 U.S. 382 (1998).
Crawford-El v. Britton, 523 U.S. 574 (1998).
Ark. Educ. Television Comm’n. v. Forbes, 523 U.S.
666 (1998).
Calderon v. Ashmus, 523 U.S. 740 (1998).
Am. Tel. & Tel. Co. v. Cent. Office, Inc., 524 U.S. 214
(1998).
Buckley v. Am. Constitutional Law Found., Inc., 525
U.S. 182 (1999).
Wilson v. Layne, 526 U.S. 603 (1999).
City of Chicago v. Morales, 527 U.S. 41 (1999).
Martin v. Hadix, 527 U.S. 343 (1999).
Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999).
Garner v. Jones, 529 U.S. 244 (2000).
Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344 (2000).
Nelson v. Adams USA, Inc., 529 U.S. 460 (2000).
Slack v. McDaniel, 529 U.S. 473 (2000).
Beck v. Prupis, 529 U.S. 494 (2000).
Fischer v. United States, 529 U.S. 667 (2000).
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133 (2000).
Arizona v. California, 530 U.S. 392 (2000).
Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79
(2000).
Solid Waste Agency of N. Cook County v. U.S. Army
Corps of Eng’rs., 531 U.S. 159 (2001).
TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S.
23 (2001).
Easley v. Cromartie, 532 U.S. 234 (2001).
Daniels v. United States, 532 U.S. 374 (2001).
Cooper Indus., Inc. v. Leatherman Tool Group, Inc.,
532 U.S. 424 (2001).
Adarand Constructors, Inc. v. Mineta, 534 U.S. 103
(2001).
Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235
(2002).
Lee v. Kemna, 534 U.S. 362 (2002).
United States v. Craft, 535 U.S. 274 (2002).
Verizon Commc’ns., Inc. v. F.C.C., 535 U.S. 467
(2002).
Alabama v. Shelton, 535 U.S. 654 (2002).
Delvin v. Scardelletti, 536 U.S. 1 (2002).
72
MISSOURI LAW REVIEW
138
154/0491
154/0501
154/0588
154/0653
155/0001
155/0017
155/0164
155/0376
155/0535
155/0793
155/0933
155/0946
155/1017
156/0544
157/0112
158/0291
158/0450
158/0659
158/0764
158/0787
159/0548
159/0578
159/0643
160/0611
161/0066
161/0563
161/0651
161/0876
161/0953
162/0407
[Vol. 75
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79
(2002).
Abdur’rahman v. Bell, 537 U.S. 88 (2002).
Satazahn v. Pennsylvania, 537 U.S. 101 (2003).
Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003).
Moseley v. Secrete Catalogue, Inc., 537 U.S. 418
(2003).
Boeing Co. v. United States, 537 U.S. 437 (2003).
Smith v. Doe, 538 U.S. 84 (2003).
Brown v. Legal Found. of Wash., 538 U.S. 216 (2003).
Virginia v. Black, 538 U.S. 343 (2003).
Ill. ex rel. Madigan v. Telemarketing Assocs. Inc., 538
U.S. 600 (2003).
Inyo County v. Paiute-Shoshone Indians of the Bishop
Cmty., 538 U.S. 701 (2003).
City of L.A. v. David, 538 U.S. 715 (2003).
Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538
U.S. 803 (2003).
Stogner v. California, 539 U.S. 607 (2003).
Doe v. Chao, 540 U.S. 614 (2004).
Nixon v. Mo. Mun. League, 541 U.S. 125 (2004).
Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232
(2004).
Dretke v. Haley, 541 U.S. 386 (2004).
Tenn. Student Assistance Corp. v. Hood, 541 U.S. 440
(2004).
Till v. SCS Credit Corp., 541 U.S. 465 (2004).
Rasul v. Bush, 542 U.S. 466 (2004).
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
Missouri v. Seibert, 542 U.S. 600 (2004).
Whitfield v. United States, 543 U.S. 209 (2005).
Cherokee Nation of Okla. v. Leavitt, 543 U.S. 631
(2005).
Rousey v. Jacoway, 544 U.S. 320 (2005).
Small v. United States, 544 U.S. 385 (2005).
Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005).
Deck v. Missouri, 544 U.S. 622 (2005).
Am. Trucking Ass’ns, Inc. v. Mich. Pub. Serv.
Comm’n, 545 U.S. 429 (2005).
THE CONTEXT OF IDEOLOGY
2010]
162/0418
162/0982
139
Mid-Con Freight Sys., Inc. v. Mich. Pub. Serv.
Comm’n, 545 U.S. 440 (2005).
Medellin v. Dretke, 544 U.S. 660 (2005).
APPENDIX B
Cases in Recoding Sample by Ideological Salience
Note on Methodology: To create these scores, I started by identifying
the median Justice of the majority and calculating the number of places he or
she was from the median of the Court. Taking the absolute value of that
number, I subtracted the disorder score if the case was not unanimous or 1.4
if it was (just .01 higher than the highest disorder score in my sample). I also
subtracted the vote margin (divided by eight), added one if the case was reported on the front page of The New York Times, and added one if a dissent
was read from the bench. The guiding principles were to combine the various
factors I identified, giving somewhat more weight to large disorder scores,
unanimity, and majorities’ median Justices who are far from the median Justice of the Court, but without allowing any single factor to dominate.
Because the disorder scores, derived from the Martin-Quinn scores, extend, in some cases, many places past the decimal, I rounded to three digits
after the decimal. In my view, the particular numbers that result here are not
intrinsically informative. What is more important is the order in which the
cases are listed and, to some extent, the relative magnitude of the distances
between them. Please note that I do not offer these salience scores as a new
methodology that is ready for widespread use. To the contrary, the approach
is, at this stage, experimental and unrefined, but it is a first step towards a
new way for empirical scholars to assess the ideology in Supreme Court
cases.
Ideological
Salience Score
2.875
2.875
2.875
2.625
2.125
1.875
1.875
1.875
1.875
1.875
Case Name and U.S. Reports Cite
Printz v. United States, 521 U.S. 898 (1997).
Easley v. Cromartie, 532 U.S. 234 (2001).
Bush v. Vera, 517 U.S. 952 (1996).
City of Chicago v. Morales, 527 U.S. 41 (1999).
Rasul v. Bush, 542 U.S. 466 (2004).
Daniels v. United States, 532 U.S. 374 (2001).
Solid Waste Agency of N. Cook County v. U.S.
Army Corps of Eng’rs., 531 U.S. 159 (2001).
Brown v. Legal Found. of Wash., 538 U.S. 216
(2003).
Stogner v. California, 539 U.S. 607 (2003).
Kolstad v. Am. Dental Ass’n, 527 U.S. 526 (1999).
73
MISSOURI LAW REVIEW
140
1.875
1.875
1.875
1.825
1.825
1.750
1.625
1.608
1.445
1.375
1.125
1.125
1.125
1.108
1.108
1.077
0.952
0.952
0.903
0.557
0.452
0.375
0.375
0.375
0.375
0.375
0.375
0.375
0.375
0.375
0.328
0.104
-0.061
-0.171
-0.268
-0.375
-0.375
-0.375
-0.375
-0.375
[Vol. 75
Sattazahn v. Pennsylvania, 537 U.S. 101 (2003).
Abrams v. Johnson, 521 U.S. 74 (1997).
Alabama v. Shelton, 535 U.S. 654 (2002).
Crawford-El v. Britton, 523 U.S. 574 (1998).
Missouri v. Seibert, 542 U.S. 600 (2004).
Small v. United States, 544 U.S. 385 (2005).
Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
Buchanan v. Angelone, 522 U.S. 269 (1998).
Medellin v. Dretke, 544 U.S. 660 (2005).
Virginia v. Black, 538 U.S. 343 (2003).
Garner v. Jones, 529 U.S. 244 (2000).
Mazurek v. Armstrong, 520 U.S. 968 (1997).
Ark. Educ. Television Comm’n v. Forbes, 523 U.S.
666 (1998).
Doe v. Chao, 540 U.S. 614 (2004).
Smith v. Doe, 538 U.S. 84 (2003).
Till v. SCS Credit Corp., 541 U.S. 465 (2004).
Devlin v. Scardelletti, 536 U.S. 1 (2002).
Lee v. Kemna, 534 U.S. 362 (2002).
Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003).
Arizona v. California, 530 U.S. 392 (2000).
Schenck v. Pro-Choice Network of W. N.Y., 519
U.S. 357 (1997).
Tenn. Student Assistance Corp. v. Hood, 541 U.S.
440 (2004).
Celotex Corp. v. Edwards, 514 U.S. 300 (1995).
Bd. of County Comm’rs v. Umbehr, 518 U.S. 668
(1996).
Fischer v. United States, 529 U.S. 667 (2000).
Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344 (2000).
Slack v. McDaniel, 529 U.S. 473 (2000).
Boeing Co. v. United States, 537 U.S. 437 (2003).
Martin v. Hadix, 527 U.S. 343 (1999).
Deck v. Missouri, 544 U.S. 622 (2005).
Beck v. Prupis, 529 U.S. 494 (2000).
Dretke v. Haley, 541 U.S. 386 (2004).
Almendarez-Torres v. United States, 523 U.S. 224
(1998).
Maryland v. Wilson, 519 U.S. 408 (1997).
Mid-Con Freight Sys., Inc. v. Mich. Pub. Serv.
Comm’n, 545 U.S. 440 (2005).
Abdur’Rahman v. Bell, 537 U.S. 88 (2002).
Wilson v. Layne, 526 U.S. 603 (1999).
Jefferson v. City of Tarrant, 522 U.S. 75 (1997).
Babbitt v. Youpee, 519 U.S. 234 (1997).
Whitaker v. Super. Ct., 514 U.S. 208 (1995).
THE CONTEXT OF IDEOLOGY
2010]
-0.375
-0.375
-0.388
-0.465
-0.580
-0.625
-0.705
-0.750
-0.942
-1.125
-1.525
-1.525
-1.900
-1.900
-1.982
-2.275
-2.400
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
141
Ohio v. Robinette, 519 U.S. 33 (1996).
Nixon v. Mo. Mun. League, 541 U.S. 125 (2004).
Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538
U.S. 803 (2003).
Buckley v. Am. Constitutional Law Found., Inc., 525
U.S. 182 (1999).
Verizon Commc’ns., Inc. v. F.C.C., 535 U.S. 467
(2002).
Lords Landing Vill. Condo. Council of Unit Owners
v. Cont’l Ins. Co., 520 U.S. 893 (1997).
Cooper Indus., Inc. v. Leatherman Tool Group, Inc.,
532 U.S. 424 (2001).
Am. Tel. & Tel. Co. v. Cent. Office Tel., Inc., 524
U.S. 214 (1998).
United States v. Craft, 535 U.S. 274 (2002).
Green Tree Fin. Corp. v. Randolph, 531 U.S. 79
(2000).
Clinton v. Jones, 520 U.S. 681 (1997).
Markman v. Westview Instruments, Inc., 517 U.S.
370 (1996).
Cherokee Nation of Okla. v. Leavitt, 543 U.S.
631 (2005).
Chao v. Mallard Bay Drilling, Inc., 534 U.S. 235
(2002).
Comm’r v. Lundy, 516 U.S. 235 (1996).
Jerome B. Grubart, Inc. v. Great Lakes Dredge &
Dock Co., 513 U.S. 527 (1995).
Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79
(2002).
Reich v. Collins, 513 U.S. 106 (1994).
Bennett v. Spear, 520 U.S. 154 (1997).
Norfolk & W. Ry. Co. v. Hiles, 516 U.S. 400 (1996).
Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).
Ill. ex rel. Madigan v. Telemarketing Assocs., Inc.,
538 U.S. 600 (2003).
Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005).
Dunn v. Commodity Futures Trading Comm’n, 519
U.S. 465 (1997).
Nelson v. Adams USA, Inc., 529 U.S. 460 (2000).
Lynce v. Mathis, 519 U.S. 433 (1997).
Moseley v. V Secret Catalogue, Inc., 537 U.S. 418
(2003).
Adarand Constructors, Inc. v. Mineta, 534 U.S. 103
(2001).
Am. Trucking Ass’ns, Inc. v. Mich. Pub. Serv.
Comm’n, 545 U.S. 429 (2005).
74
MISSOURI LAW REVIEW
142
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
-2.525
[Vol. 75
Atl. Mut. Ins. Co. v. Comm’r, 523 U.S. 382 (1998).
Calderon v. Ashmus, 523 U.S. 740 (1998).
Household Credit Servs. v. Pfennig, 541 U.S. 232
(2004).
Loving v. United States, 517 U.S. 748 (1996).
Whitfield v. United States, 543 U.S. 209 (2005).
Heintz v. Jenkins, 514 U.S. 291 (1995).
Suitum v. Tahoe Reg’l Planning Agency, 520 U.S.
725 (1997).
Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.
199 (1996).
Inyo County v. Paiute-Shoshone Indians, 538 U.S.
701 (2003).
Regents of the Univ. of Cal. v. Doe, 519 U.S. 425
(1997).
City of L.A. v. David, 538 U.S. 715 (2003).
TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532
U.S. 23 (2001).
Austin v. United States, 513 U.S. 5 (1994).
Rousey v. Jacoway, 544 U.S. 320 (2005).
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133 (2000).
Gilbert v. Homar, 520 U.S. 924 (1997).
The Myth of the Level Playing Field:
Knowledge, Affect, and Repetition
in Public Debate
Jeremy N. Sheff
*
The industrialization of the channels and scale of communication has
led some well-meaning reformers to try to regulate the ability of powerful
private actors to leverage economic inequality into political inequality, particularly in the area of campaign finance. Such reform efforts are ostensibly
intended to further the deliberative democratic ideal of rational, informed
public decisionmaking by preventing well-funded private interests from improperly influencing democratic debate and, by extension, political outcomes.
This Article examines empirical findings in political science, psychology, and
marketing and argues that, in the context of contemporary American society,
the normative principles of deliberative democracy and formal equality operate at cross-purposes. Equalizing measures in campaign finance regulation
are extremely likely to increase the divergence between actual political decisionmaking and a deliberative, informed, rational ideal by increasing the
incentives for speakers to mislead and manipulate voters or by entrenching
preexisting majorities. This Article argues that, rather than focusing on
equality of financing, reformers would do better to think about how to ameliorate the source of non-optimal political decisionmaking: the (economically
rational) political ignorance, non-rational decisionmaking, and civic disengagement of the average citizen.
* Assistant Professor of Law, St. John’s University School of Law. I am grateful for helpful comments from Professors Richard Hasen, Daniel Ortiz, Ilya Somin,
and Brian Tamanaha. This Article also benefited from comments at the New York
City Junior Faculty Colloquium at Fordham Law School. All errors are the author’s
alone.
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I. INTRODUCTION ....................................................................................... 144
II. WHY LEVEL THE PLAYING FIELD? THE ARGUMENT FOR REFORM ....... 147
III. CAMPAIGNS, CASH, AND THE POWER OF REPETITION .......................... 150
A. Does Campaign Spending Matter? ................................................ 150
B. How Does Campaign Spending Work? .......................................... 157
IV. A RATIONALE FOR REFORM?
EVALUATING EQUALIZATION PROPOSALS ........................................... 164
A. Undoing Buckley – Expenditure Limits ......................................... 166
B. Matching Funds – Raising the Playing Field................................. 168
C. Equal Dollars per Voter –
Aggregation at the Expense of Deliberation................................... 169
V. CONCLUSION: EQUALITY VS. RATIONALITY ......................................... 175
I. INTRODUCTION
[I]t is said that Cato contrived to drop a Libyan fig in the Senate,
as he shook out the folds of his toga, and then, as the senators admired its size and beauty, said that the country where it grew was
only three days’ sail from Rome. And in one thing he was even
more savage, namely, in adding to his vote on any question whatsoever these words: “In my opinion, Carthage must be destroyed.”
In this way Cato is said to have brought to pass the third and last
war against Carthage . . . .1
Justice Holmes famously asserted that “the best test of truth is the power
of the thought to get itself accepted in the competition of the market.”2 This
empirical claim about the relationship between the truth of a proposition and
its popular acceptance is the quintessential crystallization of a widely espoused instrumentalist account of the right to free expression. Ultimately, the
free exchange of ideas is considered a means to the end of rational and optimal decisionmaking in a deliberative democracy.3 While such instrumentalist
1. 2 PLUTARCH, LIVES 383 (Bernadotte Perrin trans., Loeb Classical Library ed.,
1914); see also Charles E. Little, The Authenticity and Form of Cato’s Saying “Carthago Delenda Est,” 29 CLASSICAL J. 429 (1934).
2. Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
3. See, e.g., ALEXANDER MEIKLEJOHN, FREE SPEECH AND ITS RELATION TO
SELF-GOVERNMENT 26 (1948) (“Just so far as, at any point, the citizens who are to
decide an issue are denied acquaintance with information . . . which is relevant to that
issue, just so far the result must be ill-considered, ill-balanced planning for the general
good. It is that mutilation of the thinking process of the community against which the
First Amendment to the Constitution is directed.”).
2010]
THE MYTH OF THE LEVEL PLAYING FIELD
145
arguments have been levied against government interference in the “marketplace of ideas” for centuries,4 the industrialization of the channels and scale
of communications in the twentieth and twenty-first centuries has led many to
doubt the ability of laissez-faire First Amendment policy to secure its promised benefits. Reasoning backward from the ends of instrumentalist First
Amendment theory, reformers argue that the ability of certain powerful private actors to manipulate the scope and content of debate requires some qualification of Holmes’s conclusion. Specifically, reformers contend that truth
can only emerge from competition on a level playing field and that, left unchecked, the disproportionate wealth of certain speakers will allow them to
exert a greater influence on public debate (and, by extension, public policy)
than less endowed citizens and groups, in violation of the fundamental democratic principle of political equality.5 Implicit in this argument is a claim that
laissez-faire First Amendment doctrine is causing our democratic processes to
generate policy outcomes that are inferior to those that could be achieved
through more muscular regulation of public debate.6
Modern First Amendment instrumentalists have proposed various departures from existing doctrine as a means to the end of optimal, rational, egalitarian self-government. Among the most hotly contested of these arise in the
area of campaign finance law. Well-meaning reformers lament rigid constitu-
4. See, e.g., JOHN MILTON, AREOPAGITICA (1644) (“And though all the windes
of doctrin were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licencing and prohibiting to misdoubt her strength. Let her and Falshood
grapple; who ever knew Truth put to the wors, in a free and open encounter[?] . . .
This I know, that errors in a good government and in a bad are equally almost incident; for what Magistrate may not be mis-inform’d, and much the sooner, if liberty of
Printing be reduc’t into the power of a few[?]”).
5. See, e.g., Jerome A. Barron, Access to the Press – A New First Amendment
Right, 80 HARV. L. REV. 1641, 1656 (1967) (“The soap box is no longer an adequate
forum for public discussion. Only the new media of communication can lay sentiments before the public, and it is they rather than government who can most effectively abridge expression by nullifying the opportunity for an idea to win acceptance. As
a constitutional theory for the communication of ideas, laissez faire is manifestly
irrelevant.”); Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV.
1405, 1411 (1986) (“What is said determines what is not said . . . . [A]utonomy adds
nothing and if need be, might have to be sacrificed, to make certain that public debate
is sufficiently rich to permit true collective self-determination.”); Morton J. Horwitz,
The Supreme Court, 1992 Term – Foreword, The Constitution of Change: Legal Fundamentality Without Fundamentalism, 107 HARV. L. REV. 30, 113 (1993) (“[T]he
central practical goal of modern First Amendment history [is] the use of free speech
doctrine to ‘level the playing field’ in order to provide economically or socially weak
political dissidents with a chance to engage in political debate.”).
6. See Samuel Issacharoff & Pamela S. Karlan, The Hydraulics of Campaign
Finance Reform, 77 TEX. L. REV. 1705, 1717 (1999) (“One common starting point for
electoral reform is a claim that the current system somehow adulterates the outcomes
that a purer system would produce.”).
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[Vol. 75
tional barriers to creative measures that would, in theory, increase the diversity of viewpoints represented in political debate while privileging no viewpoint over any other, resulting in a better-informed citizenry and, therefore,
better decisionmaking, better government, and better policy. Chief among
these barriers is the widely disparaged yet remarkably stable contribution/expenditure distinction of Buckley v. Valeo7 and its progeny. By attempting to place all candidates, citizens, or interests on an equal footing in
terms of the amount they can spend on political campaigning, reformers hope
to design a marketplace of ideas from which truth can reliably emerge victorious.
This Article argues that the categorical assertion of Justice Holmes’s
dissent in Abrams is indeed descriptively inaccurate, but that the relationship
between popular acceptance of an idea and its truth is too complex and
fraught to be reliably controlled by blunt field-leveling measures in campaign
finance regulation. As a result, reform proposals tend to focus on the wrong
targets, potentially exacerbating the conditions they purport to alleviate. Reformers who believe that unsound policy is being generated as a result of an
improperly skewed marketplace of ideas would do better to explore the dynamics of political decisionmaking and persuasion in an effort to determine
why policy outputs fall short of the perceived ideal. The political science,
psychology, and marketing literatures provide helpful guidance in this regard,
suggesting that finance regimes play less of a role in campaign outcomes than
do background levels of knowledge and commitment. Investigation of these
literatures suggests that the level playing field envisioned by instrumentalist
reformers, in which all speakers or points of view have equal fiscal resources
for the propagation of their arguments, is anathema to those reformers’ ultimate goals. Put simply, equality of resources is not a useful means to the end
of enlightened policy in our democracy.
Part II of this Article sets up the elements of the problem to be examined: whether campaign finance reforms, and particularly measures to
equalize campaign expenditures, are normatively desirable from an instrumentalist point of view. Part III explores the relevant political science, psychology, and marketing literatures in an effort to explain the dynamics of
knowledge, persuasion, and action in public debate, both in general and in the
specific context of electoral campaigns. Part IV applies the social science
findings of Part III to the questions outlined in Part II. Part IV goes on to
argue that equality-minded reforms are unlikely to influence the outputs of
the political process in a way that would satisfy reformers’ goals and are in
fact more likely to aggravate the conditions of which reformers currently
complain. Part V concludes the Article with some discussion of potential
alternative means to the social ends of instrumentalist free speech policy.
7. 424 U.S. 1 (1976).
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THE MYTH OF THE LEVEL PLAYING FIELD
147
II. WHY LEVEL THE PLAYING FIELD? THE ARGUMENT FOR REFORM
The project of this Article is to address only one of the many instrumentalist rationales underlying campaign finance reform agendas: the political
equality rationale.8 Since the Supreme Court (in)famously announced in
Buckley v. Valeo its view that “the concept that government may restrict the
speech of some elements of our society in order to enhance the relative voice
of others is wholly foreign to the First Amendment,”9 equality-based arguments in favor of campaign finance reform have been at a disadvantage relative to arguments addressing the Court-approved, anti-corruption justification
for reform.10 Nevertheless, equality remains a central concern of reformers,
who often either assail the Buckley rule as misguided or repackage equality
8. Other rationales include the anti-corruption rationale endorsed by the Supreme Court in Buckley v. Valeo, 424 U.S. 1, 26-27 (1976); the “participatory selfgovernment” rationale expressed in the recent campaign finance opinions of Justice
Breyer, see Richard L. Hasen, Buckley Is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission, 153 U.
PA. L. REV. PENNUMBRA 31, 57 (2004), available at http://www.pennumbra.com/
issues/pdfs/153-1/Hasen.pdf; the rationale that limiting fundraising frees up candidate
time for worthier democratic pursuits, see generally Vincent Blasi, Spending Limits
and the Squandering of Candidates’ Time, 6 J. L. & POL’Y 123 (1997); and the antiextortion rationale that has gained attention in the wake of the sweeping deregulation
of corporate political expenditures occasioned by the Supreme Court’s recent decision
in Citizens United v. Federal Election Commission, No. 08-205, slip op. (U.S. Jan. 21,
2010), see North Carolina Right to Life v. Leake, 525 F.3d 274, 335-36 (4th Cir.
2008) (describing a campaign by private interests to influence legislators’ behavior by
threatening them with a barrage of negative advertising if they did not adopt the
group’s preferred position), cited in Election Law Blog, http://electionlawblog.org/
(Feb.
4,
2010,
08:18
PDT),
available
at
http://electionlaw
blog.org/archives/015213.html;
see
also
Yglesias
(Think
Progress),
http://yglesias.thinkprogress.org/ (Jan. 22, 2010, 12:15 EDT), available at
http://yglesias.thinkprogress.org/archives/2010/01/money-for-nothing-and-votes-forfree.php (“[A] group doesn’t actually need to spend vast sums of money to have a
decisive influence on politics. It just needs to be able to credibly threaten to spend
said sums.”).
9. 424 U.S. at 48-49.
10. Id. at 26-27 (finding that campaign finance regulation is constitutionally
justified by the government’s interest in preventing corruption of the democratic
process or the appearance thereof). But see FEC v. Mass. Citizens for Life, Inc., 479
U.S. 238, 258 (1986) (“Relative availability of funds is after all a rough barometer of
public support. The resources in the treasury of a business corporation, however, are
not an indication of popular support for the corporation’s political ideas. They reflect
instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even
though the power of the corporation may be no reflection of the power of its ideas.”).
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concerns as corruption concerns.11 Examples of equality-inspired proposals
range from radical “equal-dollars-per-voter” voucher regimes (usually entailing explicit abrogation of Buckley)12 to more moderate (and legislatively successful) voluntary incentive-based systems of equal public financing.13 What
these proposals have in common is their goal of preventing economic inequality – a natural and accepted byproduct of a capitalist economy such as ours –
from being leveraged into political inequality – a normatively unacceptable
condition in a purportedly democratic society like ours.14
It is not always clear from reformers’ arguments how campaign financing translates economic power into political power; indeed, the mechanism
often appears to be largely assumed.15 This assumption has crept into the
11. In one such repackaged argument, Professor David Strauss has argued that
corruption concerns are a byproduct of inequality concerns in an environment of interest-group politics. See generally David A. Strauss, Corruption, Equality, and
Campaign Finance Reform, 94 COLUM. L. REV. 1369 (1994).
12. See generally Richard L. Hasen, Clipping Coupons for Democracy: An Egalitarian/Public Choice Defense of Campaign Finance Vouchers, 84 CAL. L. REV. 1,
42-43 (1996); Edward B. Foley, Equal-Dollars-Per-Voter: A Constitutional Principle
of Campaign Finance, 94 COLUM. L. REV. 1204 (1994).
13. See, e.g., Cass R. Sunstein, Political Equality and Unintended Consequences,
94 COLUM. L. REV. 1390, 1400 (1994); see also Citizens Clean Elections Act, 16
ARIZ. REV. STAT. ANN. §§ 16-940 to -961 (2006) (establishing a voluntary system of
campaign expenditure limits in exchange for public funding in elections for state
office); Maine Clean Election Act, ME. REV. STAT. ANN. tit. 21-A, §§ 1121-1128
(2006) (same). These two states, the first to adopt robust public-financing regimes for
state elections, have achieved some success in expanding the circle of candidates for
state office and increasing election competitiveness but have not yet seen significant
declines in overall campaign expenditures or increases in voter participation. See
generally GEN. ACCTG. OFFICE, CAMPAIGN FINANCE REFORM: EARLY EXPERIENCES OF
TWO STATES THAT OFFER FULL PUBLIC FUNDING FOR POLITICAL CANDIDATES, GAO03-453 (2003); Kenneth R. Mayer, Timothy Werner & Amanda Williams, Do Public
Funding Programs Enhance Electoral Competition?, in THE MARKETPLACE OF
DEMOCRACY: ELECTORAL COMPETITION AND AMERICAN POLITICS 245 (Michael
McDonald & John Samples eds., 2006), available at http://works.bepress.com/mayer
/15.
14. See generally Daniel R. Ortiz, The Democratic Paradox of Campaign
Finance Reform, 50 STAN. L. REV. 893 (1998) (outlining and critiquing the equalitybased objection to unregulated private financing of political campaigns).
15. Id. at 901 (“The notion that people can transform economic into political
power has such great common-sense appeal that few reformers even bother to explain
how it occurs. That speakers with more money can make more appeals to voters than
can those with less money seems obviously to violate equality, particularly the equality of opportunity to persuade others . . . .”). This assumption has been called into
question recently. See, e.g., BRADLEY A. SMITH, UNFREE SPEECH: THE FOLLY OF
CAMPAIGN FINANCE REFORM 48-51 (2001) (critiquing the argument that “money buys
elections” as an example of the fallacy that correlation is equivalent to causation).
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THE MYTH OF THE LEVEL PLAYING FIELD
149
analysis of the Supreme Court16 and remains a background principle of debates about campaign finance reform. Professor Daniel Ortiz argues that the
assumption that relative levels of campaign spending influence political outcomes “requires, descriptively, that a significant number of citizens . . . be
civic slackers: voters who make political decisions in a somewhat careless
way.”17 He further argues that campaign reform measures seeking to cure
deficiencies in policy that result from the political participation of such “civic
slackers” imply “a strong normative commitment to a particular conception of
how people should vote . . . [, that is, through] the independent exercise of
deliberate political judgment.”18
Professor Ortiz characterizes reformist arguments that rely on these two
premises as potentially inegalitarian or elitist but encourages reformers to
make them explicit.19 This Article will take the argument one step further. It
will analyze, descriptively, the dynamics underlying voter decisionmaking, as
understood by the social scientists who study them. Based on this analysis, it
will then argue that, given the two necessary premises of reformist arguments
(the descriptive belief in an uninformed, unmotivated electorate and the normative belief in the superiority of deliberative political decisionmaking),
equality-based campaign finance measures are actually detrimental to reformers’ ostensible goals.
Considering the importance to reformist arguments of the assumption
that private campaign financing allows economic power to be translated into
political power, the factual basis for the assumption has received surprisingly
little scrutiny in the legal academic literature. As noted above, Professor
Ortiz has exposed the basic model of the electorate necessary to uphold the
assumption20 and has elsewhere noted that this “civic slacker” model is supported by empirical research.21 In a recent symposium, some of the contributors also discussed the empirical underpinnings of campaign finance regula-
16. See Austin v. Mich. Chamber of Commerce, 494 U.S. 652, 659-60 (1990)
(decrying “the corrosive and distorting effects of immense aggregations of wealth that
are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideas”); Hasen, supra note
8, at 58 (arguing that the only basis for Austin and similar opinions of the Court is the
conclusion that allowing unlimited election-related speech by moneyed interests such
as corporations or unions “would give [their] views disproportionate weight in society, and the legislature is seeking to democratize the influence that money can bring to
bear upon the electoral process”).
17. Ortiz, supra note 14, at 913.
18. Id.
19. Id. at 913-14.
20. See supra note 17 and accompanying text.
21. Daniel R. Ortiz, The Engaged and the Inert: Theorizing Political Personality
Under the First Amendment, 81 VA. L. REV. 1, 26-29 (1995) (noting that American
voters tend to be “civic slobs,” in contrast with “the deliberate, informed civic smarty
of classical democratic theory”).
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tion in ballot measure campaigns.22 Apart from these early steps, however,
the legal academy has given little attention to the two central questions
begged by equality-based reformist arguments: (1) do political campaigns
actually influence the outcomes of democratic processes, and, (2) if so, what
is the mechanism by which they do so?
These questions are of more than mere academic interest. If campaign
spending does not influence campaigns in the ways reformers assume, reform
measures are at best superfluous and at worst counterproductive from an instrumentalist point of view. Similarly, an understanding of the mechanism (if
any) by which money translates into political outcomes would help to identify
appropriate targets for regulation and avoid regulation of inappropriate ones.
Thus, reformers would be well served to learn more about the relationships
between campaign financing, campaign activities, and political outcomes.
Some difficulty arises insofar as this learning is generally not to be found in
the legal authorities that are the mainstay of traditional legal analysis, particularly in areas as enmeshed in constitutional law as the campaign finance debate. Nevertheless, the political science, psychology, and marketing literatures have all examined the relationship between information campaigns and
social outcomes, and their findings bear directly on the questions that much
of the debate in the legal academy has simply assumed away. Given the
comparative advantage scholars in these social science disciplines enjoy in
addressing these types of empirical questions, legal academics would be well
served to draw on their work when considering policy changes in campaign
finance.23 This Article is an effort to do precisely that.
III. CAMPAIGNS, CASH, AND THE POWER OF REPETITION
A. Does Campaign Spending Matter?
The first question equality-minded reformers must address is whether
campaign spending makes any difference in the outcome of political
processes. The political science literature teems with analyses of the dynamics of voter decisionmaking and the influence of political campaigns on those
dynamics. One robust and persistent finding validates the “civic slacker”
22. See generally Thomas Stratmann, The Effectiveness of Money in Ballot
Measure Campaigns, 78 S. CAL. L. REV. 1041 (2005); John M. de Figueiredo, How
Much Does Money Matter in a Direct Democracy, 78 S. CAL. L. REV. 1065 (2005).
23. Cf. Richard A. Epstein, Let “The Fundamental Things Apply”: Necessary
and Contingent Truths in Legal Scholarship, 115 HARV. L. REV. 1288, 1291 (2002)
(“The division of labor matters, and lawyers qua lawyers have no comparative advantage in doing empirical work. As such, their preferred strategy should be to rely on
the empirical work done by trained social scientists, or in the alternative, to spend
time and effort acquiring the expertise needed to do social science work at their
level . . . . Lawyers should be able to understand, interpret, and critique the work of
social scientists, not replicate it.”).
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THE MYTH OF THE LEVEL PLAYING FIELD
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view of the electorate. It is generally recognized in social science circles that
American voters tend not to be especially well informed:
The democratic citizen is expected to be interested and . . . to be
well informed about political affairs. He is supposed to know what
the issues are, what their history is, what the relevant facts are,
what alternatives are proposed, what the party stands for, what the
likely consequences are. By such standards the voter falls short
. . . . [W]hen it comes to politics and political information, most
Americans are severely malnourished. We are inattentive to most
things political; we care little, know less, and participate in politics
only when absolutely necessary (and often not even then). Our political views are peripatetic, hastily assembled, unconstrained by
ideology, and unencumbered by data. Americans, in short, fail to
meet the dictates of even the most charitable versions of democratic theory.24
The low-information condition of political decisionmaking in American
democracy has attracted serious scholarly attention to questions such as the
distribution of political knowledge and sophistication,25 the proper measurement of such knowledge and sophistication,26 and especially whether low
24. Paul Freedman, Michael Franz & Kenneth Goldstein, Campaign Advertising
and Democratic Citizenship, 48 AM. J. POL. SCI. 723, 724 (2004) (quoting BERNARD
R. BERELSON, PAUL F. LAZARSFELD & WILLIAM N. MCPHEE, VOTING: A STUDY OF
OPINION FORMATION IN A PRESIDENTIAL CAMPAIGN 308 (1954)) (internal citations
and quotation marks omitted). The legal academy’s awareness of voter ignorance and
its implications has lagged behind the political science literature and has only begun
to catch up in the past decade. See, e.g., Ilya Somin, Political Ignorance and the
Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 IOWA L. REV. 1287 (2004) (arguing that judicial review is not
necessarily countermajoritarian because legislation cannot be understood to be an
expression of popular will in a democracy where the electorate is generally uninformed); Michael S. Kang, Democratizing Direct Democracy: Restoring Voter Competence Through Heuristic Cues and “Disclosure Plus,” 50 UCLA L. REV. 1141,
1145-46, 1153-54 (2003) (evaluating the implications of a low-information electorate
for direct democracy); Ortiz, supra note 21, at 26-29 (noting that American voters
tend to be “civic slobs,” in contrast with “the deliberate, informed civic smarty of
classical democratic theory”).
25. See, e.g., Robert C. Luskin, Measuring Political Sophistication, 31 AM. J.
POL. SCI. 856, 885-89 (1987) (summarizing and interpreting numerous studies of the
distribution of political sophistication).
26. See generally Michael X. Delli Carpini & Scott Keeter, Measuring Political
Knowledge: Putting First Things First, 37 AM. J. POL. SCI. 1179 (1993) (an influential
defense of survey-based measures of political knowledge); see also Luskin, supra
note 25, at 864-85 (describing various measures of political sophistication and their
conceptual underpinnings); Jeffery J. Mondak, Reconsidering the Measurement of
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voter knowledge or sophistication leads to deviation from policies or election
results that would obtain under conditions of greater voter knowledge. The
growing consensus is that, although heuristic cues can assist low-information
voters in bringing their political decisionmaking closer to that of fully informed voters,27 persistent deviations remain.28
A related question of particular relevance to this Article is whether, given the low-information environment of American electoral politics, spending
on campaign communications can affect voter knowledge, electoral or policy
preferences, or voting behavior. Again, political scientists have examined
this question in depth, and more recent scholarship is moving away from a
long-standing dismissive view of campaigns’ capacity to alter election outcomes and toward the position that there are moderate campaign effects on
voter knowledge, preferences, and even behavior.29 Campaign messages do
Political Knowledge, 8 POL. ANALYSIS 57, 58-64 (1999) (critiquing popular surveybased methods of measuring political knowledge as incomplete and potentially misleading).
27. See generally, e.g., SAMUEL L. POPKIN, THE REASONING VOTER:
COMMUNICATION AND PERSUASION IN PRESIDENTIAL CAMPAIGNS (1991) (arguing that
voters use heuristic cues to approximate fully informed decisionmaking and that any
remaining individual deviations from the informed ideal likely cancel each other out
in the aggregate); see also Kang, supra note 24, at 1149-50 (arguing that heuristic
cues allow voters to bring their voting behavior into line with their preferences).
28. See Patrick Fournier, The Impact of Campaigns on Discrepancies, Errors,
and Biases in Voting Behavior, in CAPTURING CAMPAIGN EFFECTS 45, 45-48 (Henry
E. Brady & Richard Johnston eds., 2006) (summarizing research demonstrating that
low-information voters’ decisionmaking deviates from decisionmaking of better informed voters, on both an individual and an aggregate basis); see generally, e.g.,
Larry M. Bartels, Uninformed Votes: Information Effects in Presidential Elections, 40
AM. J. POL. SCI. 194 (1996) (describing, testing, and critiquing as descriptively inaccurate models of voter behavior – such as that advanced in POPKIN, supra note 27 –
that hypothesize that low-information voters use heuristic cues to approximate fully
informed decisionmaking and that remaining deviations from fully informed decisions
cancel each other out); Martin Gilens, Political Ignorance and Collective Policy Preferences, 95 AM. POL. SCI. REV. 379 (2001) (finding that not only the level of general
political knowledge but also the level of policy-specific knowledge has a significant
effect on policy preferences, particularly but not exclusively among those with high
levels of general political knowledge); Robert C. Luskin & James S. Fishkin, Deliberative Polling, Public Opinion, and Democracy: The Case of the National Issues Convention, at 10-15 (Jan. 2005) (unpublished manuscript), available at
http://cdd.stanford.edu/research/papers/2005/issues-convention.pdf (describing attitude change on political issues as a result of increased information gained through a
deliberative polling exercise); Ilya Somin, Voter Ignorance and the Democratic Ideal,
12 CRITICAL REV. 413, 419-31 (1998) (critiquing various arguments that shortcuts in
voter decisionmaking can compensate for low levels of political knowledge).
29. See, e.g., THOMAS H. HOLBROOK, DO CAMPAIGNS MATTER? 1-19 (1996)
(summarizing scholarship arguing for and against the proposition that political campaigns affect voter decisions); Daron R. Shaw, The Effect of TV Ads and Candidate
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THE MYTH OF THE LEVEL PLAYING FIELD
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appear to increase voter information, particularly among voters with the least
background political knowledge – the “civic slackers” benefit most in informational terms.30 Campaign ads also appear to affect voter attitudes toward
candidates. In particular, political advertising appears to have the ability to
implant emotional or affective attitudes toward its sponsors and subjects,
though the positive or negative tenor of the ads can determine the polarity of
these attitudes.31 Significantly, repeated exposure to a candidate’s campaign
advertisements appears to moderately but consistently strengthen positive
Appearances on Statewide Presidential Votes, 1988-96, 93 AM. POL. SCI. REV. 345,
345-47 (1999) (same); Shanto Iyengar & Adam F. Simon, New Perspectives and
Evidence on Political Communication and Campaign Effects, 51 ANN. REV. PSYCHOL.
149 (2000) (arguing that the conventional wisdom that campaigns have negligible
effects is based on methodological and conceptual errors and reviewing new research
pointing to a diversity of campaign effects).
30. See generally, e.g., Freedman, Franz & Goldstein, supra note 24 (arguing
that campaign television ads increase voter information, particularly among less informed voters); cf. Thomas M. Holbrook, Presidential Campaigns and the Knowledge
Gap, 19 POL. COMM. 437 (2002) (finding that some campaign communications –
specifically presidential debates – can reduce the information gap between highinformation and low-information voters). A slightly different view can be found in
STEPHEN ANSOLABEHERE & SHANTO IYENGAR, GOING NEGATIVE: HOW ATTACK ADS
SHRINK AND POLARIZE THE ELECTORATE 51-61 (1995), where the authors report experimental results showing that a single political advertisement exposure reduces the
information gap between individuals more likely to be politically informed and those
less likely to be informed, but that with a second exposure this gap widens to its original spread (the experiment does not test more than two exposures). The authors
theorize that this result could be extrapolated to support the proposition that “the more
candidates advertise, the more their message reaches only better-informed portions of
the electorate,” however, their results show absolute information gains for less informed voters with repeated advertising, even though relative gains after two exposures return to pre-advertising levels. Id. at 54-55.
31. See generally, e.g., Charles Atkin & Gary Heald, Effects of Political Advertising, 40 PUB. OPINION Q. 216 (1976) (demonstrating experimentally that positively
and negatively charged ads can have corresponding effects on voters’ affective responses to the subjects and, in the case of negative advertising, the sponsors of the
ads); Chingching Chang, The Impacts of Emotion Elicited by Print Political Advertising on Candidate Evaluation, 3 MEDIA PSYCHOL. 91 (2001) (arguing that positive and
negative print ads evoke emotions that in turn affect candidate evaluation in line with
the positive or negative valence of the emotion); see also Richard R. Lau, Lee Sigelman, Caroline Heldman & Paul Babbitt, The Effects of Negative Political Advertisements: A Meta-Analytic Assessment, 93 AM. POL. SCI. REV. 851, 857 (1999) (finding
based on meta-analysis of studies examining negative political ads that such ads decrease positive affect for the target of the ad but decrease it even more for the ad
sponsor). But see Robert G. Meadow & Lee Sigelman, Some Effects and Noneffects
of Campaign Commercials: An Experimental Study, 4 POL. BEHAV. 163 (1982) (finding that presentation of television ads did not appreciably affect voter assessment of
candidate qualities along certain dimensions or their vote choice).
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attitudes toward the candidate, though the tone of the advertisement may influence its effects.32
Despite these reported effects of political advertising, it is far less clear
whether or how these effects translate into different voting behaviors or political outcomes.33 At the aggregate level, there is a fair amount of early research, particularly the work of Professor Gary Jacobson beginning in the
1970s and 1980s, suggesting that campaign spending by incumbents does not
tend to increase their share of the vote, while campaign spending by challengers does.34 However, this finding has been increasingly criticized recently
on several grounds. One criticism notes that, insofar as candidates can be
expected to behave strategically, increases in vote share are not necessarily an
appropriate measure of the effects of campaign spending on results in firstpast-the-post, winner-take-all elections, where margin of victory is far less
important than victory itself.35 Another notes that empirical research underlying the finding omits key variables (such as the contested nature of a race, the
relative cost of media across districts, and background partisan identifications
within a district), likely skewing the results; significantly, studies that attempt
to control for these missing variables find a more reliable correlation between
spending and vote share.36 In short, through refinement of methodologies,
32. Atkin & Heald, supra note 31, at 225-26 & n.23 (finding that repeated advertising increases recipients’ positive affective response to the sponsor, except where
the tone of the advertisement is negative); cf. ANSOLABEHERE & IYENGAR, supra note
30, at 91-94 (reporting experimental results showing that negative ads can benefit
their sponsor, particularly in general as opposed to primary elections, but that this
effect is heavily mediated by pre-existing party affiliation, with increased conservatism correlating to increased receptiveness to negative ads).
33. See generally James N. Druckman, Does Political Information Matter?, 22
POL. COMM. 515 (2005) (exploring the relevance of political information and communications where the effects of such information on voter behavior are unclear); cf.
ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 238-59 (1957) (arguing
that voter ignorance is rational in light of the insignificance of any single vote to the
outcome of an election and the costs of obtaining political information). But see
MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT
POLITICS AND WHY IT MATTERS 218-67 (1996) (arguing that voters’ level of political
knowledge does influence their political behavior in measurable ways, with repercussions for democratic society, such that increasing voter knowledge is normatively
desirable).
34. See generally, e.g., Gary C. Jacobson, Money and Votes Reconsidered: Congressional Elections, 1972-1982, 47 PUB. CHOICE 7 (1985).
35. See Alan S. Gerber, Does Campaign Spending Work? Field Experiments
Provide Evidence and Suggest New Theory, 47 AM. BEHAV. SCIENTIST 541, 560-69
(2004).
36. See Thomas Stratmann, Some Talk: Money in Politics. A (Partial) Review of
the Literature, 124 PUB. CHOICE 135, 136-41 (2005); see also Stratmann, supra note
22, at 1060-61; Daniel R. Ortiz, The Empirics of Campaign Finance, 78 S. CAL. L.
REV. 939, 940-43 (2005); Alan Gerber, Estimating the Effect of Campaign Spending
on Senate Election Outcomes Using Instrumental Variables, 92 AM. POL. SCI. REV.
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empirical research in political science is moving from demonstrations of
modest and ambiguous correlations of campaign spending to aggregate election outcomes toward more rigorous demonstrations of aggregate spending
effects. However, it should be noted that the size of these effects, while statistically significant, is relatively small: one recent study concludes that
$100,000 worth of television advertising at median rates corresponds with
only a fraction of a percent change in vote shares in federal legislative elections.37
Despite the growing consensus in the political science community that
aggregate spending effects exist, the mechanism of those effects is still an
area of emerging research in the field.38 Longstanding conventional wisdom
has doubted the ability of campaign communications to directly and immediately persuade voters to change their candidate preference,39 and the political science community is just beginning to seek out alternative individualvoter-level mechanisms of campaign effects. Some argue that campaigns
serve primarily to energize or demobilize particular voters, and much research in the past dozen years has focused – inconclusively – on the role of
negative or “attack” advertisements in this dynamic.40 Debate has also devel401, 409-10 (1998); Thomas Stratmann, How Prices Matter in Politics: The Returns
to Campaign Advertising, 140 PUB. CHOICE 357 (2009) [hereinafter Stratmann, Prices]. Other studies suggest that advertising tends to persuade low-information voters
more than high-information voters. See generally, e.g., Nicholas A. Valentino, Vincent L. Hutchings & Dmitri Williams, The Impact of Political Advertising on Knowledge, Internet Information Seeking, and Candidate Preference, 54 J. COMM. 337
(2004).
37. See Stratmann, Prices, supra note 36, at 368-71.
38. See, e.g., Gerber, supra note 36, at 410 n.29 (“Exactly how campaign spending leads to more votes is an ongoing research question.”); David A.M. Peterson,
Uncovering the Mechanism: How Campaigns Matter and Why 3 (Apr. 20, 2006)
(unpublished manuscript, presented at the annual meeting of the Midwest Political
Science Association), available at http://www.allacademic.com/meta/p137445
_index.html (“We do know that campaigns matter . . . . We do not, however, know
how campaigns matter; the mechanism that individuals are influenced by is unknown.”).
39. See generally HOLBROOK, supra note 29, at 1-19 (summarizing the early line
of research supporting the view that individual voting behavior is determined primarily by prevailing economic conditions, party identification, and satisfaction with incumbent performance).
40. Compare generally, e.g., Stephen Ansolabehere, Shanto Iyengar & Nicholas
Valentino, Does Attack Advertising Demobilize the Electorate?, 88 AM. POL. SCI.
REV. 829 (1994) (reporting experimental findings that negative campaign advertisements decrease intentions to vote), with Ken Goldstein & Paul Freedman, Campaign
Advertising and Voter Turnout: New Evidence for a Stimulation Effect, 64 J. POL.
721, 723-28 (2002) (finding that statistical analysis of the likelihood of exposure to
negative political advertising suggests that such ads actually stimulate turnout), and
Kim Fridkin Kahn & Patrick J. Kenney, Do Negative Campaigns Mobilize or Suppress Turnout? Clarifying the Relationship Between Negativity and Participation, 93
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oped as to whether and how campaign ads might affect voters’ candidate
knowledge and preferences. On this front, researchers have divided into at
least two camps. One group of scholars argues that campaign advertising can
indirectly influence voter decisions (and thereby, in the aggregate, election
outcomes) by “priming” the electorate – setting the agenda by establishing in
voters’ minds the relevance of certain criteria that are then used to measure
the suitability of candidates.41 Another faction argues that campaign messages influence ultimate votes by fostering “on-line” or “running tally” updates
of an overall affect-based candidate preference that persists even after the
information that caused the updated preference has faded from memory.42 In
AM. POL. SCI. REV. 877 (1999) (distinguishing between appropriately presented negative information and mudslinging attacks and finding that the former mobilizes while
the latter demobilizes). For retrospective analyses of the debate, see, e.g., Valentino,
Hutchings & Williams, supra note 36, at 338 (summarizing scholarship on both
sides); Lau, Sigelman, Heldman & Babbitt, supra note 31, at 857-58 (concluding
based on a meta-analysis of many reported and unreported studies that negative political ads do not appear to depress political participation). Much of the debate over
these effects centers on the proper methodology for measuring voter exposure to
campaign messages and the adequacy of available data sources. See, e.g., Goldstein
& Freedman, supra, at 723-28 (discussing methodological issues and problems of
survey data and other available data sources); Shaw, supra note 29, at 346-47 (contrasting experimental and survey methodologies for measuring campaign effects).
Other research in this vein has attempted to identify whether particular campaign
activities are effective in mobilizing voters to go to the polls. See generally, e.g.,
Alan S. Gerber & Donald P. Green, The Effects of Canvassing, Telephone Calls, and
Direct Mail on Voter Turnout: A Field Experiment, 94 AM. POL. SCI. REV. 653 (2000)
(testing the effectiveness of various methods of voter outreach); D. Sunshine Hillygus, Campaign Effects and the Dynamics of Turnout Intention in Election 2000, 67 J.
POL. 50 (2005) (finding that advertising and personal contacts tend to increase participation by voters who did not initially intend to vote, while contacts from party and
interest group organizations maintain the intent to vote among those who already had
the intent to do so).
41. See, e.g., Iyengar & Simon, supra note 29, at 157 (arguing in favor of the
existence of priming effects); James N. Druckman, Priming the Vote: Campaign
Effects in a U.S. Senate Election, 25 POL. PSYCHOL. 577 (2004) (arguing in favor of
the existence of priming effects based on a comparison of exit poll results and media
campaign coverage). In the face of long standing scholarly consensus that there is no
direct persuasive effect of campaigns on vote choice, the priming model can be understood as an effort to demonstrate changes in voter preferences as a second-order
effect: priming is “tantamount to indirect persuasion in that altering the criteria [by
which candidates are evaluated] can alter the choice.” Iyengar & Simon, supra note
29, at 157.
42. See Milton Lodge, Marco R. Steenbergen & Shawn Brau, The Responsive
Voter: Campaign Information and the Dynamics of Candidate Evaluation, 89 AM.
POL. SCI. REV. 309 (1995) (setting forth this model of campaign effects and voter
preference formation). A related and somewhat inverted account framed in terms of
learning rather than affect is described in Gabriel S. Lenz, Learning and Opinion
Change, Not Priming: Reconsidering the Evidence for the Priming Hypothesis, 53
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each of these areas of research, political science scholars are still in the early
steps of trying to identify the mechanisms by which campaigns might influence voter beliefs, attitudes, and behavior.43 As they do so, they are beginning to explore terrain already charted (at least preliminarily) by the psychology and marketing literatures.
B. How Does Campaign Spending Work?
As the search for campaign effects turns to focus on more nuanced questions about voter psychology at the individual level, it is beginning to pick up
on the strong role played by affective and emotional responses in judgment
tasks.44 As discussed below, repetition plays a key mediating role in this
relationship. The study of the relationships among affect, repetition, and
judgment, first identified in the general psychology literature, has crossed
over to the marketing literature, where an understanding of the psychological
basis of belief, persuasion, and decisionmaking has significant practical applications. Both of these literatures, in turn, have recently begun to influence
the political sphere, which over the last few decades has been cross-pollinated
with the tools of psychology45 and mass marketing.46 This Section describes
AM. J. POL. SCI. 821 (2009) (arguing that studies purporting to show priming effects
are better explained as demonstrating the updating of voters’ policy preferences to
comport with new knowledge about their preferred party’s or candidate’s position on
an issue).
43. See, e.g., Peterson, supra note 38, at 6-8 (noting that studies focused on campaign effects at the level of the individual voter have generally not examined the psychological mechanism of campaign effects).
44. See generally, e.g., GEORGE E. MARCUS, W. RUSSELL NEUMAN & MICHAEL
MACKUEN, AFFECTIVE INTELLIGENCE AND POLITICAL JUDGMENT (2000) (setting forth
a model of political judgment and behavior based on affective responses, particularly
responses to emotional states of anxiety, enthusiasm, and anger); Ted Brader, Striking
a Responsive Chord: How Political Ads Motivate and Persuade Voters by Appealing
to Emotions, 49 AM. J. POL. SCI. 388 (2005) (reviewing the literature on the role of
affect in political judgment and behavior and arguing, based on an experimental
study, that emotional cues such as music and images in political ads can cause
changes in judgments of candidates and in motivation to participate in the political
process); George E. Marcus, Emotions in Politics, 3 ANN. REV. POL. SCI. 221 (2000)
(reviewing research into the role of emotion in political evaluation and judgment);
Jack Glaser & Peter Salovey, Affect in Electoral Politics, 2 PERSONALITY & SOC.
PSYCHOL. REV. 156 (1998) (reviewing the state of research into the role of affect in
politics and suggesting future research directions). Some of the most current research
in this vein suggests that such emotional aspects of campaign messages may spur
updating of voters’ “running tally” candidate preferences. Brader, supra, at 401.
45. See, e.g., POPKIN, supra note 27, at 72-95 (reviewing aspects of the cognitive
psychology literature and applying it to campaign effects).
46. See generally Margaret Scammell, Political Marketing: Lessons for Political
Science, 47 POL. STUD. 718 (1999) (describing the development of political marketing
as a field of scholarly inquiry); HANDBOOK OF POLITICAL MARKETING (Bruce I.
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some relevant findings in psychology and marketing that are just beginning to
be explored by political scientists.
Psychology researchers have concluded that choices and judgments are
often made heuristically based on automatically generated valences of positive or negative affective responses.47 Put simply, we choose what we like,
and only after we have decided do we retroactively try to rationalize our decision.48 Marketing researchers have similarly concluded that such affectdriven judgments are major determinants of consumer choice.49 Drawing on
Newman ed., 1999) (collecting scholarship on political marketing theory and practice).
47. See Daniel Kahneman & Shane Frederick, Representativeness Revisited:
Attribute Substitution in Intuitive Judgment, in HEURISTICS AND BIASES: THE
PSYCHOLOGY OF INTUITIVE JUDGMENT 49, 57 (Thomas Gilovich, Dale Griffin & Daniel Kahneman eds., 2002) [hereinafter PSYCHOLOGY OF INTUITIVE JUDGMENT] (“Affective valence is a natural assessment, and therefore a candidate for substitution in the
numerous situations in which an affectively loaded response is required.”); Paul Slovic, Melissa Finucane, Ellen Peters & Donald G. MacGregor, The Affect Heuristic, in
PSYCHOLOGY OF INTUITIVE JUDGMENT, supra, at 397 (describing the affect heuristic
and the empirical data from which it is inferred); Shane Frederick, Automated Choice
Heuristics, in PSYCHOLOGY OF INTUITIVE JUDGMENT, supra, at 548, 553 (describing
the use of the affect heuristic as a means of generating choices without deliberate
reasoning). This author and others have previously extended cognitive psychology
research into heuristic judgments based on affect to legal issues concerning advertising, trademarks, and consumer protection; much of the discussion in this paragraph
and the next is duplicative of the author’s prior work. See Jeremy N. Sheff, The
(Boundedly) Rational Basis of Trademark Liability, 15 TEX. INTELL. PROP. L. J. 331,
358-61 (2007) (discussing applicability of research into the affect heuristic to debates
about the purpose and scope of trademark law); see also Jon D. Hanson & Douglas A.
Kysar, Taking Behavioralism Seriously: The Problem of Market Manipulation, 74
N.Y.U. L. REV. 630, 732 (1999) (“[O]ur affective responses to products more often
than not determine the purchasing decision, regardless of whether we experience the
decision as having resulted from ‘reasons.’”).
48. See Frederick, supra note 47, at 550; see also R. B. Zajonc, Feeling and
Thinking: Preferences Need No Inferences, 35 AM. PSYCHOLOGIST 151, 155 (1980)
(“Quite often ‘I decided in favor of X’ is no more than ‘I liked X.’ . . . We buy the
cars we ‘like,’ choose the jobs and houses that we find ‘attractive,’ and then justify
those choices by various reasons . . . .”).
49. See generally, e.g., Girish N. Punj & Clayton L. Hillyer, A Cognitive Model
of Customer-Based Brand Equity for Frequently Purchased Products: Conceptual
Framework and Empirical Results, 14 J. CONSUMER PSYCHOL. 124 (2004) (formulating and empirically testing a model of brand equity that is dominated by affectively
laden “global brand attitude” and “brand heuristic” as first- and second-level determinants, respectively, of consumer decisionmaking); Tim Ambler, Sven Braeutigam,
John Stins, Steven Rose & Stephen Swithenby, Salience and Choice: Neural Correlates of Shopping Decisions, 21 PSYCHOL. & MKTG. 247, 248 (2004) (summarizing
research suggesting that emotion and feelings are the primary drivers of consumer
decisionmaking). But see id. at 257 (noting that brain imaging neither supported nor
refuted neurophysiological predictions of one theorist of emotion-based choice).
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this work and supplementing it with original research, political scientists over
the past twenty years have proposed and tested decisional models based on
heuristic cues and affective responses.50
The growing interest in heuristics, and particularly affect, as determinants of political behavior should not be surprising in light of the lowinformation, low-attention conditions of American democratic politics.
“[P]eople are not accustomed to thinking hard, and are often content to trust a
plausible judgment that quickly comes to mind.”51 Affective reactions, like
heuristics generally, are less cognitively demanding than logical thought
processes.52 Moreover, implanting affective associations is an extraordinarily
easy task.53 Such associations are also persistent: once a stimulus has been
tagged with affective value, later contrary information about the stimulus’s
actual semantic meaning will often be insufficient to significantly alter the
affective response.54 Indeed, when we rely on any heuristic judgment in our
50. See generally, e.g., POPKIN, supra note 27; MARCUS, NEUMAN & MACKUEN,
supra note 44.
51. Kahneman & Frederick, supra note 47, at 57-58 (“[P]eople initially believe
whatever they are told. . . . [I]t takes some time and mental effort to ‘unbelieve’ such
dubious statements.”). Cf. generally Christian D. Schunn, Lynne M. Reder, Adisack
Nhouyvanisvong, Daniel R. Richards & Philip J. Stroffolino, To Calculate or Not to
Calculate: A Source Activation Confusion Model of Problem Familiarity’s Role in
Strategy Selection, 23 J. EXPERIMENTAL PSYCHOL.: LEARNING, MEMORY &
COGNITION 3 (1997) (demonstrating that people tend to retrieve answers to problems
from memory rather than calculate them through logical reasoning when the problem
appears familiar to them).
52. See Steven A. Sloman, Two Systems of Reasoning, in PSYCHOLOGY OF
INTUITIVE JUDGMENT, supra note 47, at 379, 380-84 & tbl.22.1, 393-94 (arguing that
“associative” reasoning such as heuristic judgment is an automatic form of cognitive
processing, to be distinguished from “rule-based” reasoning, which governs more
formal logical analysis and requires more taxing deliberate sequential processing).
But see Gerd Gigerenzer & Terry Regier, How Do We Tell an Association From a
Rule? Comment on Sloman (1996), 119 PSYCHOL. BULL. 23 (1996) (critiquing Sloman’s dual-system theory on grounds of ambiguity, vagueness, and failure to consider
alternative explanations of data).
53. As an illustration of our unconscious susceptibility to affective content, consider a study that showed that flashing an affectively charged image (a smiling or
frowning face) for 1/250th of a second immediately prior to the display of a stimulus
was enough to bias the test subject’s preference for that stimulus, even though the
affectively charged “priming” cue was so brief that there was no recognition or recall
of it. Slovic, Finucane, Peters & MacGregor, supra note 47, at 401 (citing P. Winkielman, R. B. Zajonc & N. Schwarz, Subliminal Affective Priming Resists Attributional Interventions, 11 COGNITION & EMOTION 433 (1997)). This effect persisted
even when the stimulus was later presented with an affectively opposite “priming”
cue. Id.
54. For example, in one experiment test subjects were given an affectively
charged definition for Chinese pictograms, then told that those definitions were inaccurate and asked to memorize “accurate” affectively neutral definitions for the same
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decisionmaking, as political scientists argue is the case for the majority of
American voters, it takes considerable time and effort to alter those judgments based on further, more rational consideration, if we can alter them at
all.55
Heuristic responses based on affect are also heavily mediated by repetition. Studies show that simple familiarity with a stimulus increases positive
affective response to it.56 In other words, the more often we are merely exposed to a stimulus, the stronger our affective response to it will be and the
more likely we will be to prefer it.57 This “mere exposure” effect may help to
explain research findings that repetition of positive campaign messages increases positive attitude toward their sponsor58 and that increased exposure of
the electorate to a candidate’s name increases that candidate’s vote share.59 It
pictograms. Id. Even after the new affectively neutral meanings had been learned,
the test subjects continued to exhibit the earlier affective reaction to the pictograms.
Id.
55. See Hanson & Kysar, supra note 47, at 646-54 (discussing a host of empirically demonstrated phenomena illustrating the general principle that initial judgments
are extremely persistent, even in the face of contradictory or ambiguous hard data).
Surprisingly, attempts at rationalization may actually serve to increase confidence in a
faulty intuitive judgment, a phenomenon known as confirmation bias. See id. at 64750, 660-62; Nicholas Epley & Thomas Gilovich, The Anchoring-and-Adjustment
Heuristic: Why the Adjustments Are Insufficient, 17 PSYCHOL. SCI. 311, 312 (2006)
(“[P]eople evaluate hypotheses by trying to confirm them.”). This dynamic is prevalent in political learning as well. Brendan Nyhan & Jason Reifler, When Corrections
Fail: The Persistence of Political Misperceptions (Apr. 22, 2009) (unpublished manuscript), available at http://www-personal.umich.edu/~bnyhan/nyhan-reifler.pdf (finding that voters tend to try to fit new information into their preexisting ideological
views and not only discount information inconsistent with those views but actually
rebel against such information, hewing to their original views even more strongly than
before encountering the new information). For a general overview of the empirical
and theoretical underpinnings of the confirmatory bias, see Hanson & Kysar, supra
note 47, at 647-50.
56. Frederick, supra note 47, at 553-54; see also Ambler, Braeutigam, Stins,
Rose & Swithenby, supra note 49, at 253-54 (discussing experimental results showing significant correlation between brand familiarity and selection of the brand and
quicker decisionmaking when faced with a familiar brand than with unfamiliar
brands).
57. Slovic, Finucane, Peters & MacGregor, supra note 47, at 400 (“[W]hen objects are presented to an individual repeatedly, the ‘mere exposure’ is capable of
creating a positive attitude or preference for these objects.”); see also, e.g., Robert F.
Bornstein, Exposure and Affect: Overview and Meta-Analysis of Research, 1968–
1987, 106 PSYCHOL. BULL. 265 (1989) (reviewing studies that document the “mere
exposure effect”).
58. See supra notes 31-32 and accompanying text.
59. See generally Paul E. Schaffner, Abraham Wandersman & David Stang,
Candidate Name Exposure and Voting: Two Field Studies, 2 BASIC & APPLIED SOC.
PSYCHOL. 195 (1981).
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also suggests that the ability to repeat a campaign message or secure repeated
exposure for a political candidate has real potential to skew the results of an
election in favor of a campaign that leverages that ability.
More generally, repetition threatens the integrity of political decisionmaking by increasing the susceptibility of low-information, low-attention
voters to factual error. With all due respect to Justice Holmes, it turns out
that the ability of a thought to get itself accepted in the market is not necessarily a very good test of the empirical truth of that thought. To the contrary,
the acceptance of a proposition can be manipulated by processes having little
or nothing to do with empirical truth, key among them repetition. Thirty
years ago a group of experimental psychologists discovered that, simply by
repeating a plausible proposition two or three times, they could impart to their
hearers significantly increased confidence in the truth of that proposition,
regardless of its actual truth or falsity.60 Since then, other psychologists have
investigated this “illusory truth effect”61 and found it to be robust, though its
underlying causes remain a matter of some debate.62 Not only does repetition
strengthen the belief that a proposition is true, but it also strengthens the belief that the proposition is widely considered to be true.63 Such belief, in turn,
reinforces belief in the truth of the proposition, as we are more inclined to
believe that a proposition is true if we believe that it is accepted by a large
number of people.64 Moreover, strength of belief in the truth of a proposition
60. Lynn Hasher, David Goldstein & Thomas Toppino, Frequency and the Conference of Referential Validity, 16 J. VERBAL LEARNING & VERBAL BEHAV. 107
(1977). For a more recent and rigorous demonstration of this effect, see generally Ian
Maynard Begg, Ann Anas & Suzanne Farinacci, Dissociation of Processes in Belief:
Source Recollection, Statement Familiarity, and the Illusion of Truth, 121 J.
EXPERIMENTAL PSYCH.: GEN. 446 (1992).
61. This effect is referred to variously in the literature as the “truth effect,” Scott
A. Hawkins & Stephen J. Hoch, Low-Involvement Learning: Memory Without Evaluation, 19 J. CONSUMER RES. 212, 215 (1992); the “reiteration effect,” Ralph Hertwig,
Gerd Gigerenzer & Ulrich Hoffrage, The Reiteration Effect in Hindsight Bias, 104
PSYCHOL. REV. 194, 194-95 (1997); the “repetition effect,” Kimberlee Weaver, Stephen M. Garcia, Norbert Schwarz & Dale T. Miller, Inferring the Popularity of an
Opinion From Its Familiarity: A Repetitive Voice Can Sound Like a Chorus, 92 J.
PERSONALITY & SOC. PSYCHOL. 821, 827 (2007); and the “illusory truth effect,” Jason
P. Mitchell, Chad S. Dodson & Daniel L. Schacter, fMRI Evidence for the Role of
Recollection in Suppressing Misattribution Errors: The Illusory Truth Effect, 17 J.
COGNITIVE NEUROSCI. 800, 800 (2005). This Article will use the latter term to encompass all these labels.
62. For a summary of the experimental results and theories concerning the cause
of the illusory truth effect, see Anne L. Roggeveen & Gita Venkataramani Johar,
Perceived Source Variability Versus Familiarity: Testing Competing Explanations for
the Truth Effect, 12 J. CONSUMER PSYCHOL. 81, 82-84, 90 (2002).
63. See generally Weaver, Garcia, Schwarz & Miller, supra note 61.
64. Id. at 822. Similar effects have already been analyzed with respect to the
judiciary, where lopsided panel composition can induce minority conformity to a
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– even if based solely on the sense of familiarity that results from repetition –
leads us to believe that the proposition derives from a credible source,65 and,
in passing along the information to others, attribution to a credible source can
increase the likelihood that the proposition will be accepted and further
spread.66
This potential for cascading effects is further complicated by the fact
that, like affective reactions, repetition-based beliefs are easy to implant and
difficult to correct. In general, the greatest increase in truth-belief comes with
just two to three repetitions, after which the effect levels off.67 Unfortunately,
repetition-based belief in “Proposition X” is not likely to be dissipated by
simply informing the belief holder that Proposition X is false. To the contrary, such refutations, because they require repetition of the false proposition, may actually strengthen belief in the truth of Proposition X: warnings
ultimately become recommendations.68 This irony is hypothesized to result
from the fact that, when we are presented with new information, we record
the semantic content of the information in memory separately from information about the context in which the semantic content appeared. Over time, the
contextual data fades from memory at a faster rate than the semantic content,
and we cannot remember anything about Proposition X other than the fact
majority position. See CASS R. SUNSTEIN, DAVID SCHKADE, LISA M. ELLMAN &
ANDRES SAWICKI, ARE JUDGES POLITICAL? AN EMPIRICAL ANALYSIS OF THE FEDERAL
JUDICIARY 67-69 (2006). However, the original social psychology experiments demonstrating conformity effects show that such effects deteriorate significantly when the
majority belief is less than unanimous. See Solomon E. Asch, Opinions and Social
Pressure, 193 SCIENTIFIC AM. 31, 35 (1955). Moreover, there is significant debate in
the political science literature as to whether analogous “bandwagon” effects obtain in
electoral contexts. See generally, e.g., Catherine Marsh, Do Polls Affect What People
Think?, in 2 SURVEYING SUBJECTIVE PHENOMENA 565 (Charles F. Turner & Elizabeth
Martin eds., 1984).
65. See generally Alison R. Fragale & Chip Heath, Evolving Informational Credentials: The (Mis)Attribution of Believable Facts to Credible Sources, 30
PERSONALITY & SOC. PSYCHOL. BULL. 225 (2004).
66. Norbert Schwarz, Lawrence J. Sanna, Ian Skurnik & Carolyn Yoon, Metacognitive Experiences and the Intricacies of Setting People Straight: Implications for
Debiasing and Public Information Campaigns, in ADVANCES IN EXPERIMENTAL
SOCIAL PSYCHOLOGY 127, 151 (Mark P. Zanna, ed., 2007), available at
http://sitemaker.umich.edu/norbert.schwarz/files/07_aep_schwarz_et_al_settingpeople-straight.pdf.
67. See Scott A. Hawkins, Stephen J. Hoch & Joan Meyers-Levy, LowInvolvement Learning: Repetition and Coherence in Familiarity and Belief, 11 J.
CONSUMER PSYCHOL. 1, 2 (2001).
68. Ian Skurnik, Carolyn Yoon, Denise C. Park & Norbert Schwarz, How Warnings About False Claims Become Recommendations, 31 J. CONSUMER RES. 713, 713
(2005).
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that it is familiar.69 Familiar information is easier to process than novel information, and the experience of facile cognitive processing gives rise to a
belief in the truth of the processed information.70 As a result, our belief in
Proposition X can be strengthened even if the source of the proposition or the
proposition itself is discredited, and, in fact, the act of discrediting over time
can reinforce belief in Proposition X’s truth by force of repetition.71 For
similar reasons, the mere expression of a question as to whether a proposition
is true, with the passage of time, tends to be remembered as an assertion that
the proposition is true.72 Accordingly, psychologists and marketing researchers alike warn that, when attempting to refute false or misleading claims,
“information campaigns should focus more on what is true than on reiterating
what is false.”73
There are available countermeasures besides direct questioning or refutation of a false premise that can mitigate the illusory truth effect. For example, a repetition-based belief might be successfully countered with a message
that does not repeat the challenged proposition and includes features designed
for especially fluent processing, such as simple, clear presentation or mnemonic devices such as rhyme or music.74 More importantly for present purposes, greater attention to the semantic content of a message and the integration of that content with other knowledge, entailing more in-depth cognitive
processing than mere passive awareness, can cause hearers to resort to preexisting knowledge and beliefs in critically assessing the truth of the message,
diminishing their reliance on the sense of familiarity that gives rise to the
69. Id. at 713-15. The illusory truth effect becomes increasingly pronounced as
we age, both because the decay rate of contextual memory accelerates over the course
of our lives and because as we get older we are more likely to believe that new information has been encountered before. Id. at 714, 722-23; see generally Sharmistha
Law, Scott A. Hawkins & Fergus I. M. Craik, Repetition-Induced Belief in the Elderly: Rehabilitating Age-Related Memory Deficits, 25 J. CONSUMER RES. 91 (1998).
70. Schwarz, Sanna, Skurnik & Yoon, supra note 66, at 149-51.
71. Id. at 151-58. While it is possible to design refutations of repetition-based
beliefs, the ability of such refutations to secure popular belief or to reduce belief in
the refuted claim is highly contingent on the nature of the refuted claim and the relationship between the original claim and the refutation, such that refutation efforts are
not guaranteed success and have the potential to backfire. See generally Gita Venkataramani Johar & Anne L. Roggeveen, Changing False Beliefs from Repeated Advertising: The Role of Claim-Refutation Alignment, 17 J. CONSUMER PSYCHOL. 118
(2007).
72. See generally Mario Pandelaere & Siegfried Dewitte, Is This a Question?
Not For Long. The Statement Bias, 42 J. EXPERIMENTAL SOC. PSYCH. 525 (2006).
73. Skurnik, Yoon, Park & Schwarz, supra note 68, at 723.
74. See Schwarz, Sanna, Skurnik & Yoon, supra note 66, at 153; cf. Hawkins &
Hoch, supra note 61, at 223 (noting that such mnemonic devices tend to cause the
greatest increases of belief in simple claims).
85
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illusory truth effect.75 This more attentive and engaged cognitive processing
mediates the effects of repetition, such that repeating a message more than a
few times can actually cause backlash in the attentive hearer, who becomes
increasingly critical of, or bored or irritated with, the repeated claim.76
Psychologists have pointed out that the use of familiarity as a cue for
measuring truth is a useful heuristic insofar as most of the information we
encounter is true.77 But bringing the analysis back to investigation of mechanisms by which campaigns might influence voters, it becomes apparent that
this intuitive judgment can be easily exploited by repeating a claim to an audience that does not expend significant cognitive effort in evaluating that
claim. In such a situation, the audience is likely to reflect elevated levels of
subjective belief in the truth of the repeated claim, regardless of its actual
truth or falsity. Insofar as this model of exploitation is a fair description of
the typical American electoral campaign, in which a primary expense is repetitive campaign advertising broadcast over various media for consumption by
an unsophisticated American electorate, equality-minded reformers may have
a legitimate empirical basis to be concerned about the unequal distribution of
campaign funds. It is possible that a well-funded speaker could repeat an
empirically false claim that supports the speaker’s preferred policy position,
thereby increasing popular acceptance of the truth of the claim and making
adoption of the policy position through democratic processes more likely. 78
However, even if the aforementioned findings in the psychology and marketing literatures could be extended to political campaigns – and to date they
have not been in any systematic or rigorous way – it would not necessarily
follow that equalization of campaign funds is either practically feasible or
normatively desirable. While others have focused on the practicality of equalizing reforms,79 the next Part will assume their feasibility and discuss their
desirability.
IV. A RATIONALE FOR REFORM?
EVALUATING EQUALIZATION PROPOSALS
Part II of this Article posed two questions to test a key assumption of
equality-based campaign finance reform proposals. Part III answered the first
75. See generally Hawkins & Hoch, supra note 61; Law, Hawkins & Craik,
supra note 69.
76. See Hawkins & Hoch, supra note 61, at 213-14; Hawkins, Hoch & MeyersLevy, supra note 67, at 2.
77. Skurnik, Yoon, Park & Schwarz, supra note 68, at 714.
78. Indeed, Justice Stevens appeared to come close to such a realization when he
recently observed that the rule of Buckley “at best, has an indirect relationship to
activity that affects the quantity – rather than the quality or the content – of repetitive
speech in the marketplace of ideas.” Randall v. Sorrell, 548 U.S. 230, 280 (2006)
(Stevens, J., dissenting) (emphasis added).
79. See, e.g., Issacharoff & Karlan, supra note 6, at 1708-18.
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question – whether political campaigns influence the outcomes of democratic
processes – in the affirmative, suggesting that campaign regulation might
affect electoral and policy outputs. However, the second question – how
campaigns influence the outcomes of democratic processes – is far more important to evaluating the merits (as opposed to the relevance) of equalitymotivated reform proposals. The influence of campaigns on ultimate election
results is, by definition, an aggregation of campaign effects on the individual
level, and such effects must be understood if they are to be manipulated by
regulation. The social science research discussed above – which surely does
not exhaust the entire universe of possible campaign effects on the individual
level – explains several documented and potential effects of campaign activities. From an instrumentalist point of view that sees public debate as a means
to the end of enlightened policy, none of these campaign effects can be considered inherently undesirable, and indeed some of them must be considered
inherently desirable.
As noted above80 and elsewhere,81 the ideal model of deliberative, rational political decisionmaking is undermined by the empirical finding that
most American voters lack sufficient information or interest to conform to
that model. Yet political advertising ameliorates the informational deficiencies of the least informed portion of the electorate, at least in absolute terms
and possibly in relative terms as well82 – an apparent benefit of campaign
activities for democratic processes (from the instrumentalist point of view).
Similarly, while repetition of campaign messages could be misused to deceive ill-informed voters into believing false propositions or forming favorable impressions of unfavorable candidates, it could also be an efficient means
of perpetuating accurate information throughout an electorate without the
inclination or resources to gather that information independently.83 Moreover, even where campaign effects might be manipulated at the expense of
optimal political decisionmaking, remedying those manipulations through
regulation may be less effective than alternative approaches. Accordingly,
instrumentalist campaign reform proposals should be evaluated in light of
what we know about the likely effects of their implementation in order to
determine whether they are appropriate means to their stated ends. In this
spirit, this Part evaluates three equality-based reform measures – expenditure
limits, public matching funds, and equal-dollars-per-voter contribution limits
– in light of the campaign effects described in the previous part.84
See supra notes 24-28 and accompanying text.
See, e.g., Ortiz, supra note 21, at 26-29.
See supra note 30 and accompanying text.
See generally Kang, supra note 24.
Given the limited scope of this Article, this Part will not directly examine
various campaign reform proposals that are not clearly motivated by an equality rationale, even though the critiques offered in this Part could apply with considerable
force to such proposals. While this limitation necessarily omits some current topics in
campaign finance law, the focus of this Article is on one particular rationale underly80.
81.
82.
83.
84.
86
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A. Undoing Buckley – Expenditure Limits
One potential campaign finance measure would entail the abrogation of
Buckley’s contribution/expenditure distinction85 and the imposition of equalizing expenditure limits on candidates and on individuals or groups seeking to
influence the outcomes of political campaigns. But a regime of finite, albeit
equal, resources at the campaign level is unlikely to generate the rational,
informed decisionmaking that is the ostensible end of equality-minded
reform. First, as noted above, because campaign activities generally have the
effect of increasing the political knowledge of low-information voters, capping the level of campaign funding below levels it would achieve in the absence of such caps will likely depress voter knowledge, increasing the disparity between actual voter behavior and the normative ideal of fully informed, rational, deliberative decisionmaking.
An objection may be raised that this is precisely the point of equalizing
regulation in campaign finance law: insofar as the unscrupulous but wellfunded speaker can disseminate false or misleading information, the knowledge-increasing function of campaign communications threatens to undermine the deliberative decisionmaking process by infecting it with factual
error. It should be clear, though, that this objection rests on dubious assumptions. First, it assumes a correlation between amount of resources and tendency to mislead – a correlation that cannot be posited a priori. Second, to
the extent that the objection rests on an argument that an asymmetric ability
to disseminate false or misleading information creates an incentive to do so,
the underlying causal reasoning of the assumption warrants scrutiny, and in
any case it would not necessarily follow that resource equalization is normatively desirable. To the contrary, the social science findings discussed above
seriously undermine the claim that resource equalization will eliminate any
incentive to make false or misleading claims in political communications, and
the opposite could well be true.
Consider that artificially low ceilings on the financial resources political
campaigns can deploy place a strategic premium on campaign tactics that
have the most favorable effects on the outcome of an election for the least
cost. In a world where the great majority of voters do not have much background political knowledge, do not devote significant attention to politics,
and rely largely on heuristic cues rather than deliberative reasoning in making
ing campaign finance reform efforts rather than a detailed critique of the entire spectrum of campaign finance reform measures.
85. Buckley v. Valeo, 424 U.S. 1, 39-59 (1976) (striking the expenditure limitation provisions of the 1974 amendments to the Federal Election Campaign Act as
unconstitutional restrictions on First Amendment rights to engage in political expression); id. at 23-38 (upholding the act’s contribution limits as constitutionally permissible tools to maintain the integrity of the electoral process by preventing actual or
apparent improper influence of major campaign contributors over elected officials).
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political choices, a rational campaign with finite resources has tremendous
incentives to deploy reliable and scalable tactics such as repetitive, affectladen mass advertising. Given that campaign resources are generally finite
even in the absence of expenditure limits, it is unsurprising that such tactics
are prevalent in modern political campaigns, to the chagrin of champions of
deliberative decisionmaking. However, mandating that campaign funding be
not only finite but also equal does nothing to remove this incentive and, given
the difficulties in displacing affect- or repetition-based beliefs,86 may in fact
strengthen it.
Nor would expenditure limits provide a check on the incentive to make
false or misleading assertions in campaign communications. Campaigns in a
world of equal-but-finite financing would have little incentive to expend
scarce resources in an attempt to refute debatable or even false beliefs generated by their adversaries’ manipulation of repetition and affect for at least two
reasons. First, such efforts stand a good chance of further entrenching the
belief they are intended to refute.87 Second, given the ease of implanting
affect- and repetition-based beliefs and the difficulty of dispelling them,88 the
cost of refuting such beliefs is extremely likely to exceed the cost of implanting them. Together, these observations suggest that deploying affect- and
repetition-based campaign messages – regardless of their objective truth or
falsity – would be a dominant strategy in the game of equal-but-finiteresource political campaigning, while directly responding to such messages
would be a dominated strategy. Thus, rather than exposing and deterring
misleading campaign communications or encouraging rational debate and
deliberation on issues of public concern, equal-but-finite campaign funding is
likely to turn political debate into a zero-sum contest in which campaigns race
to stake out exclusive claims to rhetorical territory and issue space.89
At a deeper level, even if expenditure limits were capable of imposing
perfect equality of resources for each of the various factions on an issue of
public concern, they could not remedy deficiencies in political outcomes
where the source of those deficiencies lies not in the balance of campaign
See supra notes 54-55, 67-76 and accompanying text.
See id.
See id.
Indeed, a similar race is the norm in consumer product marketing, where
brands generally are “positioned” to create and elicit associations along semantic
dimensions that are not already the subject of associations with competitive products
– because any attempt to challenge a competitor’s brand associations is unlikely to
succeed. See DAVID A. AAKER, MANAGING BRAND EQUITY: CAPITALIZING ON THE
VALUE OF A BRAND NAME 111-12 (1991) (“A differentiating association can be a key
competitive advantage. If a brand is well positioned (with respect to competitors)
upon a key attribute in the product class, . . . competitors will find it hard to attack. If
a frontal assault is attempted by claiming superiority upon that dimension, there will
be a credibility issue . . . . Thus, an association can be a formidable barrier to competitors.”).
86.
87.
88.
89.
87
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activity but in the decisionmaking processes of voters.90 In short, if the goal
of reform is to bring the results of democratic decisionmaking processes into
better alignment with the results of rational, deliberative, fully informed decisionmaking processes, expenditure limits are probably the wrong tool for the
job.
B. Matching Funds – Raising the Playing Field
Another popular equalization proposal is the allocation of public matching funds to financially disadvantaged candidates, such as those available in
state “clean election” statutes91 or the “fair fight funds” provision in the recently proposed Fair Elections Now Act for U.S. Senate campaigns.92 While
such measures might mitigate somewhat the avoidable information-lowering
effects of expenditure limits, they suffer from the same inherent weaknesses
of such limits: they do little if anything to alter the incentive to deploy efficient affect- or repetition-based campaign tactics, regardless of whether such
tactics mislead.93 Once again, this incentive arises from the desire to leverage
scarce resources to influence the decisions of an electorate, the largest proportion of which responds more strongly and predictably to such tactics than to
any others. Matching-funds measures may indeed ameliorate the problem of
only the wealthiest speakers being able to use such tactics to get their message accepted throughout the electorate (and thereby to influence the political
preferences and behaviors of voters). However, these measures cannot deter
any speaker from propagating false or misguided beliefs throughout the electorate, or from using affect-laden appeals to influence the preferences and
behavior of voters in a way that would be inconsistent with more considered,
rational judgment. Indeed, providing matching funds would likely increase
the ability of speakers of modest means to deploy such tactics – which there
would be a strong incentive to deploy – without any assurance that the body
90. BRYAN CAPLAN, THE MYTH OF THE RATIONAL VOTER: WHY DEMOCRACIES
CHOOSE BAD POLICIES 166 (2007) (“What happens if fully rational politicians compete for the support of irrational voters . . . ? It is a recipe for mendacity.”).
91. See 16 ARIZ. REV. STAT. ANN. § 16-952 (2006) (providing matching funds to
qualifying candidates participating in the public funding regime who face nonparticipating opponents exceeding the regime’s expenditure limits); ME. REV. STAT. ANN.
tit. 21-A, § 1125(9) (2006) (same).
92. Fair Elections Now Act, S. 752, 111th Cong. tit. V (2009).
93. Indeed, it is conceivable that matching regimes could generate scarcity pressures similar to expenditure limits to the extent that the availability of public matching
funds decreases the incentive for private citizens and interests to expend or donate
money for campaign efforts (on the theory that the donation would provide no relative, as opposed to absolute, benefit to their preferred candidate or issue).
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of political information made available to the electorate would correlate any
more strongly to objective truth.94
Thus, to the extent that informed and rational decisionmaking is a goal
we want our democratic processes to serve, matching regimes offer little benefit. At best, they might provide surplus resources that would allow for the
deployment of campaign tactics in addition to repetitive, affect-laden advertising, while increasing the total volume and penetration of campaign communications (and thus the total level of information among voters). Such
additional forms of communication might very well have salutary effects like
increasing political participation95 and could be expected to elevate total levels of political information among the electorate somewhat,96 but by themselves they offer no mechanism either to deter campaign tactics that manipulate or mislead or to bring actual voting behavior into significantly better
correlation with a deliberative, rational ideal.
C. Equal Dollars per Voter –
Aggregation at the Expense of Deliberation
One final, more radical, equality-based campaign finance reform proposal would allocate to all citizens a fixed and equal amount of money to
94. This consequence of matching regimes may be, in the language of computer
programming, a feature rather than a bug. One could argue that if our political
process is fated to be influenced by non-rational behavior, potentially based on false
and misleading information, then the ability to manipulate and mislead should at least
be equally distributed across the economic spectrum. Such equal distribution would
do nothing to increase the rationality of political outcomes or to serve any other goals
of the deliberative model (and would likely undermine those goals), but it could serve
other purposes – particularly to the extent that one doubts the existence of some objective rational standard by which policy outcomes can be judged or views political
processes as a kind of competition over economic rents. Under the assumption that
the effort to influence political outcomes is simply a competition among selfinterested interest groups to secure benefits conferred by the state, allocation of such
benefits according to the preexisting distribution of wealth could be considered inconsistent with encompassing notions of equality. See Hasen, supra note 12, at 14-18.
As discussed below, however, this understanding of the political process is in direct
contradiction with the goal of rational political decisionmaking in a democratic society with a low-information, low-involvement electorate. See infra section IV.C.
95. For example, recent experiments suggest that face-to-face campaign contact
with voters increases voter turnout and does so to a greater extent than other forms of
outreach such as direct mail or telephone contacts. See generally Gerber & Green,
supra note 40. To the extent that compensating canvassers is more costly on a dollars-per-voter-reached basis than paying for a direct mail or telemarketing campaign
(an assumption that ignores volunteer participation in campaign activities), greater
campaign resources might have the indirect effect of increasing voter turnout. See id.
at 661.
96. See supra note 30 and accompanying text.
88
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contribute to political campaigns as they see fit and in some cases would limit
the financing of political campaigns to these funds.97 Such proposals share
their justificatory reasoning with a recently overruled98 line of Supreme Court
campaign finance decisions: FEC v. Massachusetts Citizens for Life,99 Austin
v. Michigan Chamber of Commerce,100 and McConnell v. FEC.101 In Massachusetts Citizens, the Court suggested in dicta that regulation of the political
activities of business corporations could reflect a legislative judgment that the
corporate form permits the accumulation of great wealth through economic
pursuits that do not necessarily correlate with popular support for the corporation’s political positions;102 in Austin the Court upheld a Michigan law embodying such regulation as a constitutional exercise of legislative judgment.103 Finally, in McConnell, the Court relied on similar reasoning (and
invoked Austin as precedent) to uphold against a facial challenge a recently
enacted federal statute limiting the rights of corporations and labor unions to
use general treasury funds to engage in “electioneering communications.”104
This reasoning – based on the premise that, in the absence of the wealthaccumulating advantages of the corporate form, private financial contributions in the aggregate might provide a “rough barometer of public support”105
– holds that correlation of levels of campaign financing and levels of public
97. For examples of such proposals, see generally BRUCE ACKERMAN & IAN
AYRES, VOTING WITH DOLLARS: A NEW PARADIGM FOR CAMPAIGN FINANCE (2002);
Foley, supra note 12; Hasen, supra note 12.
98. Citizens United v. Federal Election Commission, No. 08-205, slip op. at 4950 (U.S. Jan. 21, 2010) (overruling Austin v. Michigan Chamber of Commerce and so
much of McConnell v. FEC as relied on Austin as precedent).
99. 479 U.S. 238 (1986).
100. 494 U.S. 652 (1990).
101. 540 U.S. 93 (2003).
102. Mass. Citizens, 479 U.S. at 258 (“Relative availability of funds is after all a
rough barometer of public support. The resources in the treasury of a business corporation, however, are not an indication of popular support for the corporation’s political ideas. They reflect instead the economically motivated decisions of investors and
customers. The availability of these resources may make a corporation a formidable
political presence, even though the power of the corporation may be no reflection of
the power of its ideas.”).
103. Austin, 494 U.S. at 658-60 (upholding a state statute that “aims at a different
type of corruption in the political arena: the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate
form and that have little or no correlation to the public’s support for the corporation’s
political ideas”). For the view that small-dollar, grass-roots contributions do not reflect even a “rough barometer of public support,” see SMITH, supra note 15, at 45-48
(arguing based on recent historical examples that “the ability to raise large sums in
small contributions is a sign of fervent backing from an ideologically committed minority, rather than a sign of broad political support”).
104. 540 U.S. at 204-07.
105. Mass. Citizens, 479 U.S. at 258; see also Hasen, supra note 8, at 41-42.
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support is normatively preferable to the absence of such correlation insofar as
disparate funding can “unfairly influence elections.”106
From the moment these cases were decided, their reasoning invited criticism. Dissenting in Austin, Justice Scalia pointed out the inconsistency of
that case’s holding with the principle, established in Buckley, that limiting
independent campaign expenditures is constitutionally impermissible.107 This
view has now won the backing of a bare majority of the young Roberts Court,
which recently overruled Austin and related precedents on the ground that
their underlying “antidistortion rationale” did not justify departure from
Buckley in the specific case of corporate campaign expenditures.108 Despite
Austin’s demise, its normative judgment concerning the appropriate relationship between wealth and political participation is and will remain axiomatic
to equal-dollars-per-voter arguments.109 Adherents to this normative position
have never depended on Buckley for support – and indeed have often denounced Buckley’s anti-corruption rationale as cramped and inadequate. To
the contrary, such reformers view equalization of campaign resources at the
level of the individual citizen as an implementation of the democratic ideal of
political equality110 and further raise the instrumentalist argument that such
equalization will lead to legislative outcomes that better reflect the “true dis-
106. Austin, 494 U.S. at 660.
107. Id. at 682-85 (Scalia, J., dissenting) (criticizing the Austin majority’s reason-
ing and pointing out that, by its logic, there would be no constitutional barrier to restricting the political speech of wealthy individuals simply by virtue of their wealth).
108. Citizens United, slip op. at 32-50.
109. Indeed, Professor Hasen – a leading proponent of equal-dollars-per-voter
reform measures – concedes that Justice Scalia’s dissent in Austin is sound but argues
that this merely demonstrates the inadequacy of Buckley’s anticorruption rationale to
deal with the problem of the influence of wealth on politics. Hasen, supra note 12, at
41-42 (“Justice Scalia is correct. . . . But whereas [he] concludes that the Michigan
law [at issue in Austin] cannot pass muster under Buckley, I believe the better approach is to acknowledge the logical implications of the Court’s reasoning and accept
political equality as an interest adequate to justify regulating campaign expenditures.”). See also Heather K. Gerken, The Real Problem with Citizens United, THE
AMERICAN PROSPECT Jan. 22, 2010, available at http://www.prospect.org/cs/articles
?article=the_real_problem_with_citizens_united (“It’s not surprising that reformers
are outraged. Austin has long been the darling of reformers; it’s as close as the Court
has ever come to saying Congress can regulate campaign finance to promote ‘equality.’”). The analysis in this Article suggests a somewhat different critique: that the
rule of Buckley, like most First Amendment jurisprudence, rests on an assumption that
is empirically dubious, i.e., that “[f]actions . . . [can] be checked by permitting them
all to speak, and by entrusting the people to judge what is true and what is false.”
Citizens United, slip op. at 39 (internal citation omitted), citing THE FEDERALIST NO.
10 (James Madison).
110. Hasen, supra note 12, at 42-44 (discussing arguments in favor of egalitarianism as a compelling government interest).
89
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tribution and weight of societal interests.”111 Whether this instrumentalist
claim is supportable depends on the influence of the distribution of campaign
resources on the outcomes of elections, particularly of legislative elections.
As discussed throughout this Article, the reformist assumption that equalization of campaign finances will align actual voter decisions with optimal, rational decisions is flawed. The equal-funding-per-voter reform model lays
bare the source of that flaw. What is the “unfair[] influence [on] elections”
that resource equalization – either actual or approximate – would remedy?
The instrumentalist First Amendment theory set out at the beginning of this
Article suggests that the danger is divergence of voter decisions from a rational, deliberative ideal.112 The equal-dollars-per-voter proposal, however,
suggests that the unfair influence to be remedied by reform is simply deviation from the preferences voters would express in the absence of the effects of
campaigning. In bridging this gap, we move from the realm of First Amendment theory into the realm of democratic theory. We must, therefore, briefly
consider the differences between two models of democracy: deliberative and
aggregational.113
111. Id. at 31.
112. See supra notes 2-6 and accompanying text.
113. A full explanation of these two modes of thinking about democratic
processes is well beyond the scope of this Article. A good collection on the deliberative model and its problems is DELIBERATIVE DEMOCRACY: ESSAYS ON REASON AND
POLITICS (James Bohman & William Rehg eds., 1997), in which the first four selections constitute the leading expressions of the basic principles of the model. In the
modern era, the aggregational model is a central subject of social choice theory, based
largely on the work of Kenneth Arrow and those building on his insights. See generally KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963);
Amartya Sen, The Possibility of Social Choice, 89 AM. ECON. REV. 349 (1999) (reprinting the author’s Nobel Prize lecture outlining the history and scope of social
choice theory). Each model has deep roots in Western thought. See, e.g., ARISTOTLE,
POLITICS bk. 3, ch. XI (defending democratic governance on grounds that the whole
body of the people can arrive at better political results than any of them individually);
JOHN LOCKE, SECOND TREATISE OF CIVIL GOVERNMENT ch. VIII, §§ 95-99 (1690)
(describing the origins of civil society as the entry of individuals into a community to
protect collectively their individual interests and to be governed by the will of the
majority of the community even where express unanimous consent is not possible).
In contemporary discourse, there is considerable debate as to whether the insights of
social choice theory can be reconciled with democratic ideals, particularly deliberative democratic ideals. Compare generally, e.g., WILLIAM H. RIKER, LIBERALISM
AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND
THE THEORY OF SOCIAL CHOICE (Judith Wilson ed., 1982) (arguing that the axiomatic
impossibility of aggregating individual preferences consistently with a meaningful
conception of democratic choice makes the notion of popular will an empty concept),
with John S. Dryzek & Christian List, Social Choice Theory and Deliberative Democracy: A Reconciliation, 33 BRIT. J. POL. SCI. 1 (2003) (attempting to reconcile social
choice critiques of democracy with deliberative democracy principles).
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The deliberative model sees democratic processes as a mechanism to
engage the political community in building consensus and resolving disagreements as to the scope and content of community policy, all in pursuit of objectively (i.e., rationally) superior outcomes.114 The aggregational model, in
contrast, sees such processes as a mechanism for aggregating and mediating
independent and subjective individual preferences to yield a set of acceptable
policies to govern the whole community.115 Much modern work in the aggregational tradition suggests that democratic processes are fundamentally
inadequate to the task of producing satisfactory community policies from the
individual preferences of community members.116
Regulation to ensure a correlation between the units of campaign
finance and the units of voting would appear to be consistent with an aggregational agenda, protecting voter preferences against undue contamination
from the persuasive activities of others with diverging preferences.117 How114. See Sunstein, supra note 13, at 1392 (“Politics should not simply register
existing preferences and their intensities, especially as these are measured by private
willingness to pay. In the American constitutional tradition, politics has an important
deliberative function. The constitutional system aspires to a form of ‘government by
discussion.’”).
115. See Hasen, supra note 12, at 8-14 (describing two key models in the aggregational tradition: interest group theory and social choice theory).
116. See generally ARROW, supra note 113 (demonstrating the logical impossibility of simultaneously satisfying basic reasonable conditions with any non-dictatorial
system of aggregating preferences); Allan Gibbard, Manipulability of Voting
Schemes: A General Result, 41 ECONOMETRICA 587 (1973) (same, but adding the
additional dimension of the potential to game the preference-aggregation system);
Mark Allen Satterthwaite, Strategy-Proofness and Arrow’s Conditions: Existence and
Correspondence Theorems for Voting Procedures and Social Welfare Functions, 10 J.
ECON. THEORY 187 (1975) (same).
117. See, e.g., Hasen, supra note 12, at 6-7 (touting the equal-dollars-per-voter
model as providing “proper incentives and safeguards that channel self-regarding
political behavior to produce fair and efficient political outcomes” and ensuring that
each voter has roughly equal ability to have his or her preferences enacted into legislation). It is notable that Professor Hasen’s reliance on interest group theory and
public choice theory largely ignores questions concerning changes in voters’ political
preferences as a result of campaigns – treating such changes essentially as a form of
market exchange. See id. at 10 & n.32 (“Politicians will attempt to maximize the
votes they get by selling access, influence, or positions on legislation to the different
interest groups. The interest groups pay for these goods with their political capital:
either they deliver votes directly, or indirectly by manipulating public opinion; or they
make campaign contributions which the politician spends on advertising to get votes
herself.”) (emphasis added; footnotes omitted). Of course, votes are an expression of
the voter’s political preferences, and the very notion that the influence of campaign
activities on a voter’s subjective preferences has normative implications suggests the
existence of an external standard by which political preferences and behaviors should
be judged. If subjective voter preferences are the lodestar of political equality and the
function of political processes is simply to aggregate them fairly, how those prefer-
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ever, assuming (as reformers appear to do) that such contamination is a function of the magnitude of campaign spending, and further assuming that political preferences are not equally distributed across the electorate, equal-dollarsper-voter regimes would not truly eliminate such contamination. To the contrary, they would merely cause the net effect of such contamination to be
consistent with the preexisting distribution of political preferences: they
might widen the electoral margin that would have existed absent campaign
activities but would not alter the electoral result.
As an example, consider a pre-campaign electorate of one hundred citizens, fifty-five of whom harbor a preexisting preference for candidate Smith
and forty-five of whom prefer candidate Jones. Now presume that each of the
one hundred citizens has $100 to spend on campaign activities and that each
citizen dedicates the full amount of her $100 to her preferred candidate’s
campaign fund. This would leave Jones with $4,500 to spend and Smith with
$5,500. If, as reformers appear to believe (with some support from the social
science literature), higher campaign expenditures correlate to higher vote
shares than would be achieved in the absence of such expenditures, the net
effect of this equal-dollars-per-voter system could only be to reinforce voter
preferences that existed prior to the campaign, as Smith’s ability to outspend
Jones would increase Smith’s vote share to a greater extent than Jones could
increase hers. Thus, all else being equal, Jones would be incapable of winning the election under an equal-dollars-per-voter system. Indeed, even if all
else were not equal and there were some new information revealed over the
course of the campaign that altered pre-existing preferences in Jones’s favor,
the financing gap would allow Smith to mitigate that shift in preferences and
potentially still win the election, even if in the absence of campaign spending
the new information would have tipped the election to Jones. While this simple illustration can obviously be complicated in many ways – for example, to
account for non-linear campaign effects, for varying degrees of competence
across campaigns, or for intermediary campaign groups that use aggregated
funds in ways that were not anticipated or intended by their donors – it suffices to demonstrate the essentially aggregational character of equal-dollar-pervoter regimes. More importantly, this example demonstrates the extent to
which equal-dollars-per-voter reform proposals are likely to entrench preexisting majorities and pluralities.
ences are formed should be of little concern to reformers. To the extent that the formation of subjective preferences is a concern, it would seem that the concern would
have to be grounded either in some objective standard – such as the rational standard
of the deliberative model – or else in a desire – perhaps even an unconscious one – to
elevate the subjective preferences of the reformer over those of the voter. See supra
notes 17-19 and accompanying text; cf. SMITH, supra note 15, at 139-52 (arguing,
somewhat polemically, that those who argue for resource equalization “believe that
some views, which they do not like, are heard too much, and others, which they prefer, are heard too little.”).
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This scenario is a far cry from the deliberative ideal underlying First
Amendment instrumentalism, which views political processes as a means to
identify and pursue the public interest. But it is equally inconsistent with an
aggregational model that views political processes as a means of reconciling
competing private interests. Unless we assume that pre-campaign preferences
are inherently superior to post-campaign preferences (an assumption in serious tension with the propositions that campaigns provide information and
that deliberation improves decisionmaking), equal-dollars-per-voter regulation would not (except perhaps coincidentally) be consistent with fully informed, rational decisionmaking. Nor would such regulation eliminate the
influence of persuasive activity on subjective preferences. Rather, given the
low-information and low-attention nature of the American electorate and the
resulting incentives with respect to campaign tactics, equal-dollars-per-voter
systems would at best amplify the distortions of pre-existing bias and political
ignorance with the distortions of potentially misleading affect- and repetitionbased campaigning.
V. CONCLUSION: EQUALITY VS. RATIONALITY
Here we come to the crux of the problem with equality-based campaign
finance reforms. As noted at the beginning of this Article, Professor Ortiz
has argued that the deliberative ideal of rational decisionmaking is in tension
with a commitment to absolute political equality.118 This Article suggests
that these normative values are not merely in tension; they actually work at
cross-purposes. Given the decisionmaking patterns of the majority of the
electorate, the road of equality does not lead to the destination of rational
political outcomes. Accordingly, applying egalitarian principles as the guiding framework for regulation whose end is optimal, rational, fully informed,
and deliberative political decisionmaking is not merely unhelpful where most
citizens are not rational or deliberative political actors; it is counterproductive. Each of the equality-based reform measures discussed above, when
analyzed through the lens of social science research into campaign effects and
their analogues in psychology and marketing, appears more likely to exacerbate the non-rational tendencies in our democratic processes than to ameliorate them, creating tremendous incentives for political interests to manipulate and mislead. In short, there is a tradeoff between equality and rationality
in our democracy.
This is not to say that equality-based campaign finance regulation can
serve no purpose, nor even that it is normatively undesirable. If politics is
seen as essentially a distributive exercise – the competition of subjective interests over resources – then equalization may well be desirable in decreasing
the correlation between prospective distribution patterns and pre-existing
118. See supra notes 17-19 and accompanying text.
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wealth patterns.119 Such regulation may also constitute an expressive validation by the community of the egalitarian or participatory normative commitments of our democracy, it may work to curb the appearance or even the reality of political corruption or coercion, and it may reduce rent-seeking behavior.120 But it would appear that these potential benefits of equalizing reform
measures come at a cost in terms of the rationality of political outcomes. As
such, it is incumbent on reformers – many of whom surely harbor normative
commitments to both equality in the body politic and rationality in public
policy – to decide which is the more compelling value.
This dilemma is not inevitable. To the contrary, it results not from economic inequality being leveraged into political debate but from the fact that
many voters do not make political decisions by means of rational or deliberative processes. Where the problem with our political outcomes lies in the
nature of voters’ decisionmaking process, the proper target of reform is that
process itself, not its inputs (i.e., campaign activities). To escape the normative dilemma, reformers should focus less on legislating ever more formal
equality – which would only deepen the dilemma – and more on bringing
voter decisionmaking processes closer in line with the rational, deliberative
ideal.
There are serious obstacles to such progress. One is the fact that failure
to engage in rational, deliberative political decisionmaking is, in economic
terms, a rational strategy. Given the low probability of any one vote affecting
the outcome of an election, the subjective benefit to any one voter of gathering the information necessary to assure a rational, fully informed decision is
far outweighed by the costs of gathering such information – a classic collective-action problem.121 In order to change this calculus, the individual voter’s
subjective valuation of being politically active and informed must change – in
welfare economics terms, the citizen must derive sufficient subjective utility
from the process of gathering information and deliberating on issues of public
concern to offset the subjective costs of such information gathering and deliberation. It is highly unlikely that this recalibration of subjective utility could
be accomplished by legal regulation. Such preferences are more likely a
product of culture.
Another obstacle to increased rationality in democratic decisionmaking
is the fact that even where political knowledge increases throughout the electorate – a key benefit of campaign activities according to the discussion
above122 – voters’ use of that knowledge seldom accords with the dictates of
reason. Voters have a tendency to discount information that conflicts with
their worldview and to accept uncritically information that confirms that
119. See supra note 94 and accompanying text.
120. On this latter target for regulation of the political process, see Hasen, supra
note 12, at 8-18.
121. See, e.g., DOWNS, supra note 33, at 238-59.
122. See supra note 30 and accompanying text.
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worldview.123 Indeed, this tendency is so strong that efforts to correct factually inaccurate beliefs held as a matter of ideology often induce the same
kind of backlash as efforts to correct factually inaccurate beliefs held as a
result of repetition – they can actually increase the strength of the mistaken
belief.124 Thus, simply increasing voters’ interest in politics will not do if that
interest is driven by ideology; voters must develop a commitment to the deliberative process itself if that process is to yield the benefits promised by deliberative theory. Fostering such a commitment, like fostering political engagement generally, is a problem that moves beyond the design of legal rules
and into deeper issues of social norms, education, and cultural change.
Those who believe that our political processes and their outcomes fall
short of some rational ideal would therefore seem to have limited options for
remedying the situation. With regard to the problem of deterring misleading
and false claims that evade correction due to the structural disincentive to
engage them, one could conceive of a legal rule punishing the dissemination
of such claims in political debate, though it would be difficult to square such
a rule with current First Amendment jurisprudence.125 With regard to the
problem of unscrupulous manipulation of the campaign effects described in
this Article, reformers dissatisfied with the policy outcomes generated by
123. See generally Kari Edwards & Edward E. Smith, A Disconfirmation Bias in
the Evaluation of Arguments, 71 J. PERSONALITY & SOC. PSYCHOL. 5 (1996) (finding
that people tend to evaluate new information inconsistent with their prior beliefs by
trying to disconfirm the new information); Charles S. Taber & Milton Lodge, Motivated Skepticism in the Evaluation of Political Beliefs, 50 AM. J. POL. SCI. 755 (2006)
(same, but also finding a tendency to seek out information that confirms prior-held
beliefs); see also Ilya Somin, Knowledge About Ignorance: New Directions in the
Study of Political Information, 18 CRITICAL REV. 255, 260-62 (2006) (noting that the
biased interpretation of political information makes sense if the interest of the political “fan” is not necessarily to become a better voter but to increase his or her enjoyment of politics); CAPLAN, supra note 90, at 114-65 (arguing that biased interpretation
of information is a rational response to the structure of democratic processes and
discussing the implications of this “rational irrationality” for political outcomes in
democratic societies).
124. Compare Nyhan & Reifler, supra note 55 (finding such a backlash effect in
response to efforts to correct mistaken beliefs that are tied to political ideology, particularly among conservatives), with discussion supra notes 67-73 and accompanying
text.
125. See, e.g., N.Y. Times v. Sullivan, 376 U.S. 254, 271 (1964) (“Authoritative
interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth – whether administered by judges, juries, or
administrative officials – and especially one that puts the burden of proving truth on
the speaker.”). But see Brown v. Hartlage, 456 U.S. 45, 60-61 (1982) (reversing a
judgment voiding a local election under a state law forbidding certain false claims by
political candidates, but apparently reaching its result by weighing the First Amendment policy of free and robust political debate against the state’s interest in protecting
the political process against factual inaccuracy, with particular emphasis on the
speaker’s state of mind).
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such manipulation could certainly dedicate themselves to manipulating campaign effects in furtherance of their preferred policies. Of course, this would
imply a considerable level of cynicism in reformers to the extent they harbor
normative commitments to either rational policymaking or deliberative democracy. As an alternative to such unworkable or unpalatable options, this
Article suggests that reformers should set their sights not on the campaign
finance system but on the American citizen – and on raising the baseline level
of political interest, engagement, and perspicacity – in the hopes of diminishing the effectiveness of tactics that encourage and leverage non-rational political decisionmaking.
In this regard, this Article closes with two final observations from the
social science literature. First, of the most common forms of voter mobilization techniques, the technique with the strongest effect on political engagement as measured by voter turnout is face-to-face contact between a door-todoor canvasser and a voter: we respond more strongly to in-person appeals
than impersonal, mass appeals by telephone or direct mail.126 Second, over
the course of the late twentieth century, as political participation steadily declined, there was a similar decline in Americans’ participation in voluntary
civic organizations: people grew less and less likely to congregate over issues
of public or community concern as democratic politics consolidated and became professionalized.127 Reading these results together suggests that the
solution to the normative dilemma presented by this Article may very well lie
not in a magic bullet of campaign finance regulation, but in the organic
process of engaging with our neighbors and building civic communities.
In the end, faults in the outcomes of our political processes are likely to
lie not in our laws, but in ourselves. The process of sifting through various
arguments and preferences to arrive at a policy to govern the community inevitably has its winners and its losers. While the idea of a skewed playing
126. See Gerber & Green, supra note 40, at 661 (“[F]alling rates of voter turnout
[likely] reflect a decline in face-to-face political activity.”). Indeed, awareness of the
comparative advantage of more personal forms of political interaction may be a driving factor behind more recent non-equality-oriented reform measures, such as the
BCRA’s regulation of broadcast electioneering communications during the period of
weeks preceding an election but not electioneering communications through nonbroadcast media. Bipartisan Campaign Reform Act of 2002 § 201, Pub. L. No. 107155, 116 Stat. 81, 88 (2002) (codified at 2 U.S.C. § 434(f) (2006)).
127. See generally ROBERT D. PUTNAM, BOWLING ALONE: THE COLLAPSE AND
REVIVAL OF AMERICAN COMMUNITY (2000); Theda Skocpol, Voice and Inequality:
The Transformation of American Civic Democracy (APSA Presidential Address), 2
PERSP. ON POL. 3 (2004). This view of declining American civic participation has
been critiqued by some who argue that Americans’ civic engagement has actually
increased, albeit through support of professionalized activist lobbying groups
representing citizens’ political interests rather than through direct citizen participation
in civic activities and institutions. See generally, e.g., JEFFREY M. BERRY, THE NEW
LIBERALISM: THE RISING POWER OF CITIZEN GROUPS (1999); see also id. at 164-67
(specifically addressing the argument in PUTNAM, supra).
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field may give comfort to those who believe in the rightness of their cause but
find themselves on the losing end of political processes, the social science
literature suggests that such discontents have inverted the causal link between
the influence of campaign activities and the nature of the political process. It
may simply be that such disgruntled political players, faced with the descriptive failures of the normatively attractive deliberative ideal, have a basic distaste for the nature of the political game itself. Nevertheless, to the extent
that we both value electoral democracy as an instrument of policy development128 and want our social policies to be rational and based on accurate information, attempting to control the flow of information through law appears
less likely to fulfill our goals than cultivating a culture where the use of that
information by voters is more likely to conform to the dictates of the deliberative model.
Of course, this process of civic and cultural reform may seem utopian.
But the difficulty – even the impossibility – of mitigating the effects of ignorance, irrationality, and falsehood on our political processes is no argument in
favor of legal regimes that will exacerbate those effects. Sadly, in this
process of cultural change the lawyer, the legislator, the academic, and the
lobbyist enjoy no comparative advantage over any other citizen and thus have
less of an incentive to engage in the serious and inefficient work of forming
the personal and civic relationships that can increase political engagement
and enforce deliberative norms than they might have to construct a legal regime to regulate money in politics. But this lack of professional advantage is
perhaps a truer expression of political equality than the formal notions of
equality motivating many resource-equalizing campaign finance reform proposals.
128. At least one scholar of voter irrationality has apparently decided that the best
policy response to it is a significant curtailment of democratic processes – and of the
franchise. CAPLAN, supra note 90, at 197-99.
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