The question of how the Justices determine their votes in cases that lack notable salience or political importance is not only multifaceted but also one as to which there is little direct evidence. To be sure, the literature summarized in Chapter 1 includes a rich history of quantitative studies which provide techniques and data that certainly can shed some light on the subject. But for an inquiry that ultimately seeks to analyze the Justices’ actual motivations, a purely quantitative study seemed inadequate. As a result, a thorough study would mix methods, including elements of both quantitative and qualitative inquiry.

DEFINING THE SUBJECT

The first task is to define and justify the boundaries of the inquiry. My selection process is the opposite of the method in much of the existing literature. It is well recognized that one of the weaknesses of the attitudinal literature is its “preoccupation with politically charged cases,” an exaggerated impression of the “permeation of American judging by politics” (Posner 2010; Friedman 2006 (arguing that the emphasis on votes instead of opinions overstates the meaning of votes in hard cases)). Instead of analyzing the most controversial cases (where preexisting policy attitudes are most likely to be important), I want to identify cases where preexisting attitudes are relatively unlikely and where law is similarly indeterminate. By identifying the cases least likely to be resolved by the statutory text or preexisting attitudes, I can most readily examine the process by which the Court acquires and processes the information that would be likely to inform policy. Metaphorically, my goal is to remove the “noise” introduced by overpowering legal and attitudinal effects so that I can observe the routine underlying processes of information collection and processing – just as scientists can examine gravity waves only by insulating their apparatus from the noise of the everyday environment.

For this study, I have chosen the Court's cases evaluating the Bankruptcy Code of 1978. Although the statute has sufficient economic and social significance to produce a steady diet of cases before the Court, it is not among the issues that are politically salient or controversial to the Court. This reduces the likelihood of strong preexisting intuitions at the Justice level (Nash and Pardo 2011 (documenting lack of ideological bias at the court of appeals in bankruptcy cases)).