The Dog that Did Not Bark: Debunking the Myths Surrounding the Attitudinal Model of Supreme Court Decision Making

TL;DRAbstract

According to the Attitudinal Model, justices on the United States Supreme Court decide cases based solely on their political preferences. Law and precedent, these advocates say, provide no constraint. If the Attitudinal Model is an adequate explanation of judicial behavior, then the justices should overturn any precedents that were inconsistent with their policy preferences. However, an examination of Supreme Court treatment of 120 liberal precedents of the Warren Court finds that subsequent conservative courts failed to overturn a large majority of these precedents even after the political preferences of the Court favored overturning those precedents. This finding raises serious questions about the adequacy of the Attitudinal Model.

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