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The Constraining Capacity of Legal Doctrine on the U.S. Supreme Court

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  • BARTELS, BRANDON L.

Abstract

Does law exhibit a significant constraint on Supreme Court justices' decisions? Although proponents of the attitudinal model argue that ideology predominantly influences justices' choices, “hybrid models” posit that law and ideology exhibit discrete and concurrent effects on justices' choices. I offer a new conceptualization of legal constraint examining how legal rules permit varying degrees of ideological discretion, which establishes how strongly ideological preferences will influence justices' votes. In examining the levels-of-scrutiny legal doctrine, I posit theoretical models highlighting the differential constraining capacities of the strict scrutiny, intermediate scrutiny, and rational basis rules. I use a multilevel modeling framework to test the hypotheses within the context of the Grayned doctrine in free expression law. The results show that strict scrutiny, which Grayned applied to content-based regulations of expression, significantly constrains ideological voting, whereas intermediate scrutiny (applied to content-neutral regulations) and the low scrutiny categories each promote high levels of ideological voting.

Suggested Citation

  • Bartels, Brandon L., 2009. "The Constraining Capacity of Legal Doctrine on the U.S. Supreme Court," American Political Science Review, Cambridge University Press, vol. 103(3), pages 474-495, August.
  • Handle: RePEc:cup:apsrev:v:103:y:2009:i:03:p:474-495_99
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    Cited by:

    1. Yonatan Lupu & James H. Fowler, 2013. "Strategic Citations to Precedent on the U.S. Supreme Court," The Journal of Legal Studies, University of Chicago Press, vol. 42(1), pages 151-186.
    2. Greg Goelzhauser, 2024. "Constitutional accountability for police shootings," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 21(1), pages 92-108, March.
    3. Lerner, Joshua Y. & McCubbins, Mathew D. & Renberg, Kristen M., 2021. "The efficacy of measuring judicial ideal points: The mis-analogy of IRTs," International Review of Law and Economics, Elsevier, vol. 68(C).
    4. Harden Jeffrey J., 2012. "Improving Statistical Inference with Clustered Data," Statistics, Politics and Policy, De Gruyter, vol. 3(1), pages 1-30, January.
    5. Michael D. Gilbert, 2011. "Does Law Matter? Theory and Evidence from Single-Subject Adjudication," The Journal of Legal Studies, University of Chicago Press, vol. 40(2), pages 333-365.

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