Cool new paper. Here is the abstract:

In political science the well-known “Attitudinal Model” of legal decision making dictates that judges’ sincere policy preferences drive legal outcomes. In contrast, the celebrated “Selection Hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose to settle cases in which legal outcomes can be readily predicted in the name of efficiency. Thus, judges end up adjudicating a non-random set of cases which, in the typical situation, should not lend themselves to ideological decision making. From this perspective, the influence of Supreme Court justices’ ideological preferences on outcomes should be obviated by the forward thinking decisions of mindful litigants. We are left with two dominant theories on jurisprudential outcomes that appear to be at odds with each other. We endeavor to address this situation by incorporating litigant selection effect considerations into a basic attitudinal account of Supreme Court justice decision making. Our primary thesis that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions that precede the justices’ case decisions on merits. We also extend our assessment of this thesis by evaluating our basic model on a subset of cases involving the Court’s most formidable litigator – the federal government.

And from the paper:

However, we argue that the influence of justices’ attitudes on their voting may vary, rather considerably, by the context of the decision making environment. In other words, when litigants have effectively sorted cases for Supreme Court litigation, then attitudes provide a relatively weak explanation for justices’ votes. Conversely, attitudes provide a much more useful insight into Supreme Court voting behavior when litigant sorting has been less ubiquitous and win-rates deviate substantially from Priest and Klein’s fabled mark. Especially intriguing is the fact that this conditional relationship holds even after we restrict our analysis to the Supreme Court functions of a single litigant – the federal government. The government’s fortunes before the Court may be influenced by the attitudinal preferences of the justices, but the degree to which such attitudes have impact varies by the sorting process that originally brought the cases to the Court in the first place.

What does this mean for the viability and utility of the Attitudinal Model? First, it is still viable and provides helpful insight toward understanding legal outcomes on the Supreme Court.

 

However, we argue that the influence of justices’ attitudes on their voting may vary, rather considerably, by the context of the decision making environment. In other words, when litigants have effectively sorted cases for Supreme Court litigation, then attitudes provide a relatively weak explanation for justices’ votes. Conversely, attitudes provide a much more useful insight into Supreme Court voting behavior when litigant sorting has been less ubiquitous and win-rates deviate substantially from Priest and Klein’s fabled mark. Especially intriguing is the fact that this conditional relationship holds even after we restrict our analysis to the Supreme Court functions of a single litigant – the federal government. The government’s fortunes before the Court may be influenced by the attitudinal preferences of the justices, but the degree to which such attitudes have impact varies by the sorting process that originally brought the cases to the Court in the first place.

What does this mean for the viability and utility of the Attitudinal Model? First, it is still viable and provides helpful insight toward understanding legal outcomes on the Supreme Court.