Decision making Summary

  • Last updated on November 11, 2022

The ways in which Supreme Court justices make decisions.

The Supreme Court is a powerful institution, and its decision making pervades the state of public policy in key areas such as criminal procedure, abortion, religious freedom, sex discrimination, and race relations. Moreover, this very strong institution is also quite autonomous. Its members are appointed for life by the president (subject to Senate confirmation) and are basically 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 week’s oral arguments, they hold a conference in which they take a preliminary vote on the merits of the case and assign the opinion. The author of the opinion then circulates a draft for comments. Based on the draft and any dissents or concurrences that may be circulated, the justices decide whether to join in the opinion or to write separately. Who writes the opinionOpinions;writing of and what it contains is important because that opinion is the Court’s policy prescription, 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, 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 in accordance with objective standards of review. The attitudinal model, however, treats the justices as human decision makers who hope to enact into law their policy preferences. Those adhering to attitudinal theory suggest that the justices decide cases according to their attitudes; liberal justices vote liberally and conservative justices conservatively. Attitudinalists cite the abundance of precedent on either side of any issue, saying that behavior that appears to be legally motivated is really masked ideological decision making.

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

Collegiality

Concurring opinions

Conference of the justices

Dissents

Judicial activism

Judicial self-restraint

Opinions, writing of

Oral argument

Original intent

Seniority within the Court

Workload

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