Decision making and the Supreme Court

DEFINITION: The processes and legal frameworks that Supreme Court justices use to arrive at their rulings on cases.

SIGNIFICANCE: Because the Court plays a crucial role in shaping public policy, understanding its decision-making processes is crucial.

The Supreme Court is a powerful institution, and its decision-making pervades the state of public policy in key areas, including criminal procedure, abortion, religious freedom, discrimination, and race relations. Moreover, this institution is also quite autonomous. Its members are appointed for life by the president—subject to Senate confirmation—and are free to vote according to their personal policy preferences. However, some constraints arguably inhibit their decision-making, including the law, the Constitution, precedent or stare decisis, and the preferences of the president and Congress.

The justices follow some general procedures in deciding cases. First, they hear oral arguments presented by the parties’ attorneys. Following the oral arguments, they hold a conference in which they take a preliminary vote on the merits of the case and assign the opinion for authoring. The author then circulates a draft of the opinion for comments. Based on the draft and dissents or concurrences that may be circulated, the justices decide whether to join in the opinion or write separately. Who writes the opinion and what it contains becomes the binding interpretation of federal law or the Constitution—effectively, the law of the land.

Two major theories, the legal and attitudinal models, dominate discourse on how the Court makes its decisions. The legal model states that justices decide cases according to precedent, the plain meaning of the statute in question, the intent of the framers of the Constitution, or the literal wording of the Constitution. In other words, the legal model supposes that the justices behave professionally, deciding cases according to objective standards of review. The attitudinal model, however, treats the justices as human decision-makers who hope to enact their policy preferences into law. Those adhering to attitudinal theory suggest that justices decide cases based on their personal attitudes; liberal justices tend to vote in favor of liberal positions, while conservative justices tend to vote in favor of conservative positions. Attitudinalists cite the abundance of precedent on either side of any issue, arguing that behavior that appears to be legally motivated is often masked by ideological decision-making.

Some scholars argue that, although Supreme Court justices are policy seekers, they also behave strategically; strategic behavior may sometimes cause them to vote against a policy they otherwise support to achieve a more personally important goal. This strategic model assumes that, due to their substantial interaction, justices influence one another and utilize that influence to enact policies most salient to them. Although some argue that the strategic model refutes the attitudinal model, on many levels, they appear to be compatible.

Bibliography

Clayton, Cornell W., and Howard Gillman, editors. Supreme Court Decision-Making: New Institutionalist Approaches. U of Chicago P, 1999.

"Judicial Decision-Making and Implementation by the Supreme Court." Rice University, openstax.org/books/american-government-3e/pages/13-5-judicial-decision-making-and-implementation-by-the-supreme-court. Accessed 15 Apr. 2025.

Pacelle, Richard L., et al. Decision Making by the Modern Supreme Court. Cambridge UP, 2011.

"U.S. Supreme Court Research Guide: Overview." University of Michigan, 26 Mar. 2024, libguides.law.umich.edu/scotus. Accessed 15 Apr. 2025.