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The Warren Court.
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The Burger Court.
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Project Overview
Project Overview
The overall goal for this research project is to empirically investigate the extent to which originalism has grown in acceptance as a valid legal theory by the U.S. Supreme Court. The Warren Court, beginning in 1953, and the Burger Court ended a period of judicial restraint, supplanting it with legal liberalism. Decisions such as Roe v Wade, which held little ties to Constitutional text (hinging on "right to privacy"), were strongly criticized by political conservatives in particular 1. Originalism thus evolved as the counter-reaction to the legal liberalism of the Warren and Burger Courts, advocating for decisions to be made based on strict interpretation of Constitutional text. Aspects of originalism include deference to "framer intent" or "original meaning"2. However, critics of the theory argue that it is merely political code for conservative outcomes, and not a valid framework of Constitutional interpretation at all. Despite this, originalism has entered the mainstream, both as a legal and political topic 3. I thus hope to analyze how justices have cited originalist thought to justify their voting behavior, and how these trends have shifted since 1953.
Research Gap
Research Gap
Segal and Spaeth put forth two contrasting models of Supreme Court decision making: the attitudinal model, wherein Court justices make decisions based on their personal values (not publicly admitted to by the Court), and the legal model, wherein Court justices make decisions based on legal principles such as balancing, stare decisis, framer/legislator intent, and plain meaning. They initially assert that it is impossible to test the legal model 4, but several years later they develop a falsifiable empirical test of stare decisis, utilizing voting data on the justices 5. Brisbin responds to this study, calling for empirical tests on the other aspects of the legal model in order to fully disprove it, but noting that these other tests will be much more difficult to test due to the volume of text (released opinions) involved 6. My research gap is thus apparent: disproving the legal model is essential to show the validity of the attitudinal model. However, legislative/framer intent (originalism) has no significant data collected. By showing how acceptance of originalism has changed over time, my research begins to suggest at political trends towards originalism, which can be further built on to falsify originalism's validity.
1 Whitley Kaufman, “The Truth About Originalism,” The Pluralist 9, no. 1 (season-01 2014): 39–54, https://www.jstor.org/stable/10.5406/pluralist.9.1.0039.
2 Robert Howard and Jeffrey Segal, “An Original Look at Originalism,” Law & Society Review 36, no. 1 (2002): 113–38, https://www.jstor.org/stable/1512194.
3 Kaufman, “The Truth About Originalism.”
4 Jeffrey Segal and Harold Spaeth, “Models of Decision Making,” Print, in The Supreme Court and the Attitudinal Model, 1st ed. (Cambridge University Press, 1993), 32–73.
5 Jeffrey Segal and Harold Spaeth, “The Influence of Stare Decisis on the Votes of United States Supreme Court Justices,” American Journal of Political Science 40, no. 4 (November 1996): 971–1003, https://www.jstor.org/stable/2111738.
6 Richard Brisbin Jr., “Slaying the Dragon: Segal, Spaeth and the Function of Law in Supreme Court Decision Making,” American Journal of Political Science 40, no. 4 (November 1996): 1004–17, https://www.jstor.org/stable/2111739.
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