Voting Behavior on the United States Courts of Appeals Revisited

American Political Science Review

Volumn 69, Issue 2, 1975, Pages 491-506

  Goldman, Sheldon ^a  

^a UNIVERSITY OF MASSACHUSETTS   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84971705523     PISSN: 00030554     EISSN: 15375943     Source Type: Journal    
DOI: 10.2307/1959082     Document Type: Article

References (25)

1. See the discussion in Sheldon Goldman and Thomas P. Jahnige, The Federal Courts as a Political System (New York: Harper & Row, 1971), pp. 154–171 and Walter F. Murphy and Joseph Tanenhaus, The Study of Public Law (New York: Random House, 1972), pp. 116–149. Also see Glendon Schubert, “Judicial Process and Behavior, 1963-1971,” in Political Science Annual, Vol. III, ed. James A. Robinson (Indianapolis: Bobbs-Merrill, 1972), pp. 73–280.
2. See the citations contained in Sheldon Goldman, “Voting Behavior on the United States Courts of Appeals, 1961-1964,” American Political Science Review, 60 (June, 1966), 375, n. 6 and Sheldon Goldman, “Conflict on the U.S. Courts of Appeals 1965-1971: A Quantitative Analysis,” University of Cincinnati Law Review, 42 (No. 4, 1973), 636, n. 3. Also see, Jeffrey B. Morris, “The Second Most Important Court: The United States Court of Appeals for the District of Columbia Circuit” (Ph.D. Dissertation, Columbia University, 1972) and William H. Moseley, “Personal Attitudes and Judicial Role in Judicial Decision-Making: A Study of the United States Courts of Appeals” (Ph.D. Dissertation, University of Hawaii, 1972) as cited in Comprehensive Dissertation Index 1861–1972, Vol. 27 (Ann Arbor: Xerox University Microfilms, 1973), pp. 187, 343; J. Woodford Howard, Jr., “Litigation Flow in Three United States Courts of Appeals,” Law and Society Review, 8 (Fall, 1973), 33-53; J. Woodford Howard, Jr., “Role Perceptions and Behavior in Three U.S. Courts of Appeals,” paper presented at the 1974 Annual Meeting of the American Political Science Association; Burton M. Atkins and Justin Green, “Problems in the Measurement of Conflict on the United States Courts of Appeals,” paper presented at the 1974 Annual Meeting of the American Political Science Association; Burton M. Atkins, “Opinion Assignments on the United States Courts of Appeals: The Question of Issue Specialization,” Western Political Quarterly, 27 (September, 1974), 409-428; Burton M. Atkins and William Zavoina, “Judicial Leadership on the Court of Appeals: A Probability Analysis of Panel Assignments in Race Relations Cases on the Fifth Circuit,” American Journal of Political Science, 18 (November, 1974), 701-711; Charles M. Lamb, “Warren Burger and the Insanity Defense—Judicial Philosophy and Voting Behavior on a U.S. Court of Appeals,” American University Law Review, 24 (Fall, 1974), 91–128.
3. Goldman, “Voting Behavior,” pp. 374—383. To aid comparability with the earlier study, much of the original research design and format of the presentation of the findings are employed here.
4. For details of the findings and the methods employed see Goldman, “Conflict on the U.S. Courts of Appeals,” pp. 645–652. Essentially, blocs were defined by McQuitty Elementary Linkage Analysis of matrices of agreement scores.
5. One could argue that “ideology” should be used instead of “interrelated political attitudes.” The concept of ideology, however, suggests a more formal, explicitly rationalized system of ideas than the phenomena here seem to warrant. But see Harold J. Spaeth and David J. Peterson, “The Analysis and Interpretation of Dimensionality: The Case of Civil Liberties Decision-Making,” Midwest Journal of Political Science, 15 (August, 1971), 415–441 and Glendon Schubert, The Judicial Mind Revisited: Psychometric Analysis of Supreme Court Ideology (New York: Oxford University Press, 1974).
6. Goldman, “Conflict on the U.S. Courts of Appeals,” p. 652–656.
7. See Nagel, “Political Party Affiliation and Judges' Decisions” Stuart S. Nagel, “Multiple Correlation of Judicial Backgrounds and Decisions,” Florida State University Law Review, 2 (Spring, 1974), 258-280; Joel B. Grossman, “Social Backgrounds and Judicial Decisions: Notes for a Theory,” Journal of Politics, 29 (May, 1967), 334-351; David W. Adamany, “The Party Variable in Judges' Voting: Conceptual Notes and a Case Study,” American Political Science Review, 63 (March, 1969), 57-73; Dolbeare, “The Federal District Courts” S. Sidney Ulmer, “Dissent Behavior and the Social Background of Supreme Court Justices,” Journal of Politics, 32 (August, 1970), 580-598; S. Sidney Ulmer, “Social Background as an Indicator to the Votes of Supreme Court Justices in Criminal Cases: 1947–1956 Terms,” American Journal of Political Science, 17 (August, 1973), 622-630; Dean Jaros and Bradley C. Canon, “Dissent on State Supreme Courts: The Differential Significance of Characteristics of Judges,” Midwest Journal of Political Science, 15 (May, 1971), 322-346; Edward N. Beiser and Jonathan J. Silberman, “The Political Party Variable: Workmen's Compensation Cases in the New York Court of Appeals,” Polity, 3 (Summer, 1971), 521-531; Malcolm M. Feeley, “Another Look at the ‘Party Variable’ in Judicial Decision-Making: An Analysis of the Michigan Supreme Court,” Polity, 4 (Autumn, 1971), 91-104; Walker, “Partisan Influences” Donald Leavitt, “Political Party and Class Influences on the Attitudes of Justices of the Supreme Court in the Twentieth Century,” paper presented at the 1972 Annual Meeting of the Midwest Political Science Association. For a more general discussion, see Goldman and Jahnige, The Federal Courts, pp. 167–171 and Murphy and Tanenhaus, The Study of Public Law, pp. 103–112.
8. See the discussion and citations in Adamany, “The Party Variable in Judges' Voting,” pp. 58–62.
9. Tests of statistical significance are meaningful here only if one were to assume that the judges and cases were a sample of a larger judge and case universe.
10. The Mann-Whitney U Test was used to determine whether there was a statistically significant difference in medians and distribution of the scores by issue by political party. The U Test is described in Sidney Siegel, Nonparametric Statistics for the Behavioral Sciences (New York: McGraw-Hill, 1956), pp. 116–127.
11. Congressional Quarterly, December 16, 1972, p. 3160.
12. Goldman, “Voting Behavior,” p. 382.
13. In so doing, one could go beyond the permissive position some methodologists hold about the appropriateness of making assumptions about the data that are technically not warranted in order to utilize more sophisticated statistical methods. See, for example, Fred N. Kerlinger, Foundations of Behavioral Research (New York: Holt, Rinehart and Winston, 1964), p. 428. On the other hand, Multiple Classification Analysis could have been employed as “the MCA technique can be considered the equivalent of a multiple regression using dummy variables.” Frank M. Andrews, James N. Morgan, John A. Sonquist, and Laura Klem, Multiple Classification Analysis: A Report on a Computer Program for Multiple Regression Using Categorical Predictors, second edition (Ann Arbor: Institute for Social Research, University of Michigan, 1973), p. 47.
14. Percentage of variance explained is derived from the partial correlation. See Norman H. Nie, Dale H. Bent, C. Hadlai Hull, Statistical Package for the Social Sciences (New York: McGraw-Hill, 1970), p. 161. This follows Bowen, “The Explanation of Judicial Voting Behavior,” and S. Sidney Ulmer, “Revising the Jurisdiction of the Supreme Court: More Administrative Reform or Substantive Policy Change?” Minnesota Law Review, 58 (November, 1973), pp. 149–151. But see Ulmer, “Social Background as an Indicator,” Table 3, p. 626. Andrews et al., Multiple Classification Analysis; note that “the partial correlation (when squared) assesses the importance of a predictor iń terms of the variance in the dependent variable marginally explainable by the predictor relative to the as-yet-unexplained variance” (italics in the original, p. 35). Stuart Nagel has argued in “Multiple Correlation of Judicial Backgrounds and Decisions,” p. 274, that the proportion of variance of each independent variable should be calculated by multiplying the standardized regression coefficient by the zero order correlation coefficient. But see J. P. Guilford, Fundamental Statistics in Psychology and Education, fourth edition (New York: McGraw-Hill, 1965), pp. 399–400, 414.
15. It may be that the background variables tested here are simply too crude and that more refined variables would yield more impressive results. It is the view of this researcher, however, that while backgrounds of course represent life experiences which nurture and shape political attitudes and values, this is such a dynamic and complex process subject to biological, environmental, political system, and judicial system variables among others that we ought not to be surprised that relatively little association of background variables to the voting behavior of aggregates of judges has been found. But see Ulmer, “Social Background as an Indicator.” In general, see Glendon Schubert, “Justice and Reasoning: A Political Science Perspective,” Rivista Internazionale Di Filosofia Del Diritto, 46 (October, 1969), 474–496 and Fred Kort, “A Special and a General Multivariate Theory of Judicial Decisions,” paper presented at the 1974 Annual Meeting of the American Political Science Association.
16. Perhaps it would be more accurate to conclude that judges behave as if they held attitudes which we have inferred from their voting patterns. It is clear nonetheless that numerous studies over the years which have uncovered voting patterns from which attitudes could be plausibly inferred (see, for example, the discussion and citations in Schubert, “Judicial Process and Behavior, 1963-1971”), as well as the replication in this revisit of earlier attitudinal findings, provide support for emphasizing the attitudinal variable in the explanation of voting behavior. There is still other evidence for inferring attitudes from the voting patterns of appeals judges. In interviews with 27 appeals judges the author found that 21 judges (i.e., 78 per cent) attributed dissension on their courts to attitudinal cleavages in the broader political sense. See Goldman, “Conflict and Consensus,” pp. 474–476. More recently, Judge Henry J. Friendly of the second circuit conceded in a law review symposium that it is “in the closest cases that such attitudes may tip the balance.” Henry J. Friendly, “Of Voting Blocs, and Cabbages and Kings,” University of Cincinnati Law Review, 42 (No. 4, 1973), 677.
17. Also see Atkins, “Judicial Behavior and Tendencies Towards Conformity,” and Richard J. Richardson and Kenneth N. Vines, “Review, Dissent and the Appellate Process: A Political Interpretation,” Journal of Politics, 29 (August, 1967), 597–616.
18. In a sense, the backgrounds explanation of the voting behavior of appeals judges is in competition with the attitudinal explanation, yet it is only the background variables that are tested directly in terms of their contribution in explaining the variance of the voting behavior on the various issues. It should be pointed out, however, that one can interpret the correlation coefficients in Table 3 in terms of two-variable relationships to suggest that attitudes explain a larger proportion of the variance than do background variables. When one examines the zero order correlations of the background variables to each issue as reported in Table 8, we find they are generally considerably lower than those of Table 3.
19. Cf. Beiser and Silberman, “The Political Party Variable.”
20. See the excellent summary of the literature concerning the age hypothesis in Norval D. Glenn, “Aging and Conservatism” in Political Consequences of Aging, Frederick R. Eisele, ed., The Annals (Philadelphia: Academy of Political and Social Science, September, 1974), pp. 176–186.
21. Glendon Schubert, The Constitutional Polity (Boston: Boston University Press, 1970), pp. 118–129.
22. S. Sidney Ulmer, “The Longitudinal Behavior of Hugo Lafayette Black: Parabolic Support for Civil Liberties, 1937-1971,” Florida State University Law Review, 1 (Winter, 1973), 131–158. Also see S. Sidney Ulmer, “Dimensionality and Change in Judicial Behavior,” in Mathematical Applications in Political Science, VII, ed. James F. Herndon and Joseph L. Bernd (Charlottesville: University Press of Virginia, 1974), pp. 40–67.
23. Indeed, as Norval Glenn in “Aging and Conservatism” suggests with reference to the sociological literature, “Empirical evidence on the topic is not definitive; moreover, in view of intransigent methodological problems which plague the study of aging effects, the evidence may never be definitive” (p. 176).
24. But see Harold J. Spaeth, David B. Meltz, Gregory J. Rathjen, and Michael V. Haselswerdt, “Is Justice Blind: An Empirical Investigation of a Normative Ideal,” Law and Society Review, 7 (Fall, 1972), 119—137.
25. With regard to the Supreme Court see S. Sidney Ulmer, “Supreme Court Justices as Strict and Not-So-Strict Constructionists: Some Implications,” Law and Society Review, 8 (Fall, 1973), 13–32.