Balkinization  

Friday, May 02, 2008

Politics on the Supreme Court--What the Numbers Say

Brian Tamanaha

Judge Richard Posner and William Landes have posted on SSRN a fascinating paper, "Rational Judicial Behavior: A Statistical Study." They report a number of interesting and odd findings, which I hope to comment on later.

For now, I will merely note the results of a table they produced showing the political orientation of the votes of Supreme Court Justices in (non-unanimous) civil liberties cases and economic cases from 1937-2006. The study ranked all forty three sitting Justices in this period by votes from more to less conservative (the number reflects the fraction of their conservative votes in these cases):

1. Thomas .822
2. Rehnquist .815
3. Scalia .757
4. Roberts .753
5. Alito .740
...
10. Kennedy .647

To repeat, this list ranks all 43 justices by ideological vote going back 70 years. And by this ranking, 4 out of 5 of the most conservative justices (in economic and civil liberties cases) during this period are now sitting on the Court. Kennedy, the swing "moderate" is ranked 10th highest (In case you are wondering, the liberal Justices on the current court are arrayed in the bottom half, but not at the very bottom, with Ginsburg the lowest at #35.)

It is reassuring that Thomas and Scalia follow "originalism" and interpret statutes according to their literal meaning, that Roberts "calls balls and strikes," and that Alito strictly "applies the law." I wonder what their numbers would have looked like had they gone ahead and voted their political views.



[Type the rest of your post here.]

Comments:

I'm responding without actually reading the article, which can always be dangerous but:

Political movements change over time. What we consider conservative today wouldn't necessarily have been considered conservative 20 years ago. It may not even have really been thought about 20 years ago. Therefore, if you are applying a modern definition of "conservative" it would make sense that the judges who are most in line with that definition would be those judges that are currently active.
 

Prof. Tamanaha:

It is reassuring that Thomas and Scalia follow "originalism" and interpret statutes according to their literal meaning, ....

... such as saying that the Constitution as amended literally forbids suits against a state by their own citizens in federal court without their consent.

Cheers,
 

Given 50 of the 70 years covered in the study are also the 50 most leftist years of the entire history of the Republic, the fact that the current court is the most conservative of the study period is hardly a surprise. The current court isn't even remotely the most conservative of our Republic's history.
 

welcome my friends,

welcome to the machine...


S.T.A.R. Chamber Justice.

Scalia
Thomas
Alito
Roberts

Be Very Afraid...
 

"Given 50 of the 70 years covered in the study are also the 50 most leftist years of the entire history of the Republic...."

And you have come to this evaluation how? What study did you perform, what criteria did you apply? In fact, what is your definition of "leftist?"

Perhaps you view our recent history his way merely because we have seen during this period a clutch of citizen-initiated social movements petitioning the government for a redress of grievances.
 

It is reassuring that Thomas and Scalia follow "originalism" and interpret statutes according to their literal meaning, that Roberts "calls balls and strikes," and that Alito strictly "applies the law." I wonder what their numbers would have looked like had they gone ahead and voted their political views.

Originalism IS a conservative political view.
 

robert cook said...

"Given 50 of the 70 years covered in the study are also the 50 most leftist years of the entire history of the Republic...."

And you have come to this evaluation how? What study did you perform, what criteria did you apply? In fact, what is your definition of "leftist?"


As originalism is a modern conservative view, living constitutionalism (rewriting the Constitution to enact leftist political philosophy) is a modern leftist view.

(Note: I do not use the venerable term liberal to describe the modern left because classical liberalism is about freedom from government through mechanisms like the Constitution while modern leftism is about ignoring constitutional checks to expand government).

As to my evaluation, I cannot imagine a past court finding large swaths of the New Deal, Warren or Burger courts to be allowed under the Constitution. Does anyone seriously disagree with this contention? If so, name a previous court which would have so held.
 

It is pointless to discuss "conservative" or "liberal" With Bart. He'll just re-define them to suit his argument of the moment. Consider: "modern leftism is about ignoring constitutional checks to expand government"?

This from the person who has unwaveringly supported the Bush administration's continual effort to expand the executive branch's power by ignoring and resisting Congressional oversight.

The hypocrisy is rather breath-taking.
 

Bart,

I think you are correct. The Roberts Court is quite liberal in its social rulings by earlier standards (say the White or Fuller Courts). As far as its solicitude for property--its about on a par.

Perhaps all Justices are products of their times, and the liberal/progressive advances of the 20th century have become part of the "background" of social and judicial culture and our most conservative judges are steeped in it. Since I approve of liberalism. I view this as a good thing.

There are a few modern jurists who would sit quite comfortably in much earlier courts and not be considered daring in some of the assumptions they hold about the Constitution, but only a few I think.

I think your remarks about modern leftism were too glib. Its not about expanding government as in blowing up a balloon. Its about empowering government to interpose between the powerful and the powerless.

You sound a bit like one of the Constitution-in-Exile faction.
 

There are those that think Court rulings are like mathematical proofs...once proved, always proved.

So, in this strong view, a decision like Dred Scott or Lochner is either correct or not, wrongly decided or not.

Bart probably hold this view (correct me if I'm wrong Bart).

So the jump/discontinuity of the post-1937 Courts really irks those who think constitutional interpretation shares the clarity of mathematical proof.

The wild-eyed school of whom I am a member looks at Court decisions more as working hypotheses.

Lochner worked for a while and then it didn't. End of story.

Except, someday, it may work again.

That conclusion gives scant comfort to either conservatives or liberals, but that is in fact how the Court over the centuries appears to act.
 

Michael,

No mathematician (I'll speak for all of us -- I don't know how many others read this blog) would ever for an instant look at any legal document as resembling a mathematical proof.

For just one crucial difference, mathematicians trace all the steps in their proofs back to a few axioms, all of which are known and have been known for centuries now, as well as an accepted methodology for proofs, while lawyers have neither a consistent set of axioms nor an accepted methodology for deriving new law from the principles that they do agree on.

I would pro-actively assert that anybody who thinks the law has actually progressed towards a coherent methodology and set of principles has perhaps been sleeping for the last twenty years. In fact, it seems to me that a regression into chaos and ruling on minutia is underway by the current court.
 

Bart waxes wacky --

"(Note: I do not use the venerable term liberal to describe the modern left because classical liberalism is about freedom from government through mechanisms like the Constitution while modern leftism is about ignoring constitutional checks to expand government).

"# posted by Bart DePalma"

So, according to Bart's ignorance of the political spectrum (gradations, not black-and-white; who is "Right" and who is "Left," in terms of continuous tradtion), Reagan, Bushit I, and Bushit II, are "Conservative" in mouth, but "Leftist" in action.

Were he truthful, he would admit that he's not against the expansion of gov't per se, or for freedom from gov't per se, but rather against gov't expansion/freedom from gov't in some respects -- greater rights for the vast majority, which includes protections from the predations by the sociopathic minority -- and for gov't expansion/enforced oppression by gov't in other respects gov't -- impoverishing the vast majority in favor of the minority of entitled elitists such as Bart.

We especially want freedom from gov't when it comes to the "right" to discriminate sgainst, and disenfranchise, oppress, and terrorize non-white minorities by such means as lynching.

Only to "keep them in line," of course -- so they don't vote "illegally".
 

The post is timely and links to a useful article. This past week I was reviewing prof. Segal's site at SUNY, which references one of the key databases, and thought a wider exploration could reveal more than the narrow syllabi there expose; though his work remains provocatively creative. Now, if there were only a canon of judicial ethics with a zenith to nadir sliding scale of infusion of polity into evaluation of judicial opinions.

Here are some of the Segal links, this one helpful for its breadth. Still, it is nice to have some fresh work for review of the field.
 

c2h50h said...

It is pointless to discuss "conservative" or "liberal" With Bart. He'll just re-define them to suit his argument of the moment. Consider: "modern leftism is about ignoring constitutional checks to expand government"?

This from the person who has unwaveringly supported the Bush administration's continual effort to expand the executive branch's power by ignoring and resisting Congressional oversight.


Predictable. In point of fact, our discussions concerning the balance of power between the two elected branches has nothing at all to do with expanding the overall reach of government power, but rather which of the two branches get to make various decisions about war.
 

Bart, when you argue, as you have done, for supposed presidential article II powers, aren't you actually arguing for an expansion in power of the federal government, not merely a different split between the executive and legislative branches?

This appears to follow logically since, absent congressional oversight or judicial review, there exist no limit on presidential power other than natural law, self restraint, or impeachment.

Admit it, by your definition, you have been a "leftist."
 

michael said...

I think your remarks about modern leftism were too glib. Its not about expanding government as in blowing up a balloon. Its about empowering government to interpose between the powerful and the powerless.

I am a classical liberal who is of the school of thought that power corrupts and absolute power corrupts absolutely.

The primary liberal insight is that government power is no less corrupt than private power.

Can you name a government bureaucracy which is not largely controlled by the powerful interests which it seeks to regulate, in effect multiplying the power of those interests?

The problem with modern leftism is the same as that of the monarchy, there is no such thing as a beneficent ruler.
 

c2h50h said...

Bart, when you argue, as you have done, for supposed presidential article II powers, aren't you actually arguing for an expansion in power of the federal government, not merely a different split between the executive and legislative branches?

No. Think about our ongoing balance of power debates for a moment.

The TSP debate concerned whether Congress or the President had the final word about directing foreign intelligence gathering. This debate does not concern government power being directed against our citizenry. The 4th Amendment rights of our citizenry against government surveillance is not implicated because foreign intelligence gathering is nor directed at our citizenry apart from those acting as foreign agents and the 4th Amendment has never been held to reach this surveillance.

The rules for foreign enemy POW debates concerned whether Congress or the President had the final word about setting those rules, not whether rules could be set. Once again, this debate does not concern government power being directed against our citizenry.

The war powers debates concerned whether the President or Congress has the power to direct the deployment of troops and end wars. These are inherent government functions which do not limit the rights of the citizenry.

absent congressional oversight or judicial review, there exist no limit on presidential power other than natural law, self restraint, or impeachment.

Quite to the contrary.

Congress is by far the most powerful branch of the two. The President can do nothing without funding from Congress and can be removed by Congress through impeachment. The President has no similar checks against Congress.
 

Off-topic, but worth noting: Zermelo-Frankel is not centuries-old. Zermelo is 1908, Frankel 1922. Yes, axiomatic set theory is centuries old, but its formal, modern codification is quite recent.

As for the resident troll, I simply can't believe anyone here still pays attention to him, especially when he spouts his usual facially counterfactual claptrap.

On-topic, it's actually a pretty interesting paper, though supremely overlong. Its results would seem to fit into a 5-page precis, but this monster weighs in at more than ten times that length. They found and corrected some data errors and ran a few regressions, the most interesting of which, to me, are those of 15+-term justices that support the self-expression hypothesis for rulings.

As for the rankings, not to offend, but those fall under the obvious science rubrick in which the sky is still blue and water still wet. Only a troll would find a way to argue that point.

Ugh, trolls.
 

WCW,

See: Euclid, Boole, Fermat, Abel, Galois. "Centuries" is as accurate as it is possible to be, in such matters. And don't forget, there is still wrangling about ZFC...

As for Bart, I would argue that he's not a "troll." He does attempt, in his own way, to respond to argument, and has been known to deliver insights.

I would refer to him rather as "blog jester."
 

Statistical analysis controls random input. Assuming the judges do not flip a coin, the randomness here comes from the type of case that makes it to the court. An interesting chart in the paper plots the percentage republican appointed justices and the percentage of unanimous cases decided for what the authors declare to be the conservative side.

Republican appointed justices bottom out at the start of the Truman administration. They rise some during Eisenhower (for whom a Republican appointed justice is Earl Warren), but then rise even higher in the string of largely Republican administrations starting with Nixon.

As a result, the numbers generate a clear secular rise in the percent of Republican appointed justices over time from 1945 to today. As the paper notes, if you draw a straight line from say 1/9 in 45 to 8/9 today, it correlates as closely to the unanimous cases decided on the conservative side as does the actual percent republican appointees (there is a secular trend over time).

However, unanimous cases serve as something of a control. If even the liberals agree to the "conservative" side of a case, then decision is presumably that the "liberal" side of the case overreached and brought a case to the court that could not be sustained under law.

Given our checks and balances, this is not a surprising result. The Article III branch tends to be the last resort of the opposition. If the administration and congress are on your side, you have nothing to sue about. So during liberal administrations, more cases will be brought by conservatives and vice versa. When they are decided unanimously, the administration was right in the first place and the opposition was clutching at straws.

So what do these numbers really say. They do not in any absolute terms say that the current court is "more conservative" than past courts (although it may be). To prove that you would have to somehow bring the same case (or randomly generated cases) to the court over and over and see how the decision changes with time. The best these numbers show is that there is a wider gap today between the conservatism of the court and the liberalism of the cases. If that shows up in the unanimous decisions, then it will also bleed over into the split decisions.

Again, I am not saying that the conclusion drawn here is necessarily wrong, I am just saying that the numbers do not say what you assume they say. The same result could have been achieved by holding the political complexion of the court fixed and bringing increasingly more liberal cases before it.

There is also a potential bias based on how the authors decide which side is "liberal" or "conservative". For example, in Bush v Gore the minority argued for Federalism, that the case was a state matter that should not be decided in the Federal courts. This is normally considered a conservative position. So was the case decided "conservatively" because the Republicans won, or "liberally" because the legal position taken is normally associated with a liberal stance. Since this is not an objective decision, it allows subjectivity to bias the result. On the other hand, this is inevitable given the subject matter and could be controlled by classifying the cases only by a unanimous decision of conservative and liberal researchers (maybe they did that and I just didn't read carefully enough to see it).
 

howardgilbert said...

There is also a potential bias based on how the authors decide which side is "liberal" or "conservative". For example, in Bush v Gore the minority argued for Federalism, that the case was a state matter that should not be decided in the Federal courts. This is normally considered a conservative position. So was the case decided "conservatively" because the Republicans won, or "liberally" because the legal position taken is normally associated with a liberal stance. Since this is not an objective decision, it allows subjectivity to bias the result.

Ideologically, Bush v. Gore was a hash and a great example of the inherent problems in determining "liberal" and "conservative" ideological outcomes in the courts.

The Renquist, Scalia and Thomas position was that the Constitution granted state legislatures plenary power to choose electors for President and the Florida Supremes were acting unconstitutionally by usurping that power. This would normally be considered a conservative position.

The middle justices adopted a traditional EPC argument that Florida counties could not use different means of counting the same votes. Is this a conservative position because it applies the plain meaning of the EPC or is it a liberal position because this argument has been used frequently by liberals in African American voting cases?

The three conservatives joined in on the EPC holding. If their power argument is conservative and the EPC argument is liberal, how do you score the three conservatives?

The traditionally liberal justices made a conservative federalism argument to advance a liberal end of allowing the Florida Supreme Court rather than the legislature decide how to pick the electors in violation of the Constitution. I this conservative or liberal or both?
 

Interesting discussions.

There is an article by the prolific Cass Sunstein on JSTOR I think about ideological voting in the appeals courts...he has some interesting observations about polarization in 3-judge panels. A little to the side of this topic, but augmenting it.
 

Bitter, but perhaps the truest statement since the Early New Deal Court "I wonder what their numbers would have looked like had they gone ahead and voted their political views."

Snarky as hell.
 

Bart, I am calling absolute bullshit on the following statement,

"Congress is by far the most powerful branch of the two. The President can do nothing without funding from Congress and can be removed by Congress through impeachment. The President has no similar checks against Congress."

You have been the most ardent cheerleader of the EXTRA-CONSTITUTIONAL signing statement being given plenary effect, rather than being taken for what others did--namely, a statement of legal understanding.

The above statement made, quite frankly, undercuts all of the egregious arguments you've made in of the unitary executive. By your prior cheerleading for the unilateral expansion of Article II powers, you have discredited ANY argument (rational or otherwise) tending to distinguish between the powers articulated under Art. I and II.

Your most recent statement is only the most primal of self-serving doctrinal absolutisms you posit to cover your ass from the huge checks your mouth has written.

Look up disingenuous, and I will submit that the definition is a little too uncomfortable for your liking.
 

schatten said...

Bart, I am calling absolute bullshit on the following statement,

"Congress is by far the most powerful branch of the two. The President can do nothing without funding from Congress and can be removed by Congress through impeachment. The President has no similar checks against Congress."

You have been the most ardent cheerleader of the EXTRA-CONSTITUTIONAL signing statement being given plenary effect, rather than being taken for what others did--namely, a statement of legal understanding.


I think you may want to re-read my posts. I argue that signing statements are meaningless, without any legal effect and openly wonder why anyone cares about them.

In any case, signing statements have nothing at all to do with my point above.

The above statement made, quite frankly, undercuts all of the egregious arguments you've made in of the unitary executive.

You misunderstand the unitary executive theory. The unified executive theory does not say that all power is unified under the Executive, but rather that Congress does not have the power to deputize an executive department to act against the President because all executive power is granted to the President.

By your prior cheerleading for the unilateral expansion of Article II powers, you have discredited ANY argument (rational or otherwise) tending to distinguish between the powers articulated under Art. I and II.

Once again, you may want to actually read my posts. I argue that expressly enumerated Article powers trump general Article II powers. Where I sharply disagree with Marty and some others here concerns the extent of Article I powers. I read the plain text of Article I to conclude that Congress is limited to those powers actually enumerated in Article I while my opponents conclude that Congress can do damn near anything it wants.
 

Bart blurts --

". . . . Where I sharply disagree with Marty and some others here concerns the extent of Article I powers. I read the plain text of Article I to conclude that Congress is limited to those powers actually enumerated in Article I while my opponents conclude that Congress can do damn near anything it wants."

Have you noticed yet that the authority to resolve election disputes, such as that in 2000, is exclusive to Congress?

Or is that inconsistent with your rejection of the ends-and-means ethical framework, therefore "unconstitutional"?

As for your comment on "signing statements" being "meaningless": tell it to the Bushit criminal enterprise, which explicitly uses them to circumvent the laws enacted by Congress consistent with Congress' exclusive Art. I authority to make the laws, and provide express statement of their intent -- legislative history -- for the dense, the dumb, and the duplicitous.
 

Maybe we simply have a conservative Constitution.
 

Can you name a government bureaucracy which is not largely controlled by the powerful interests which it seeks to regulate, in effect multiplying the power of those interests?

For beings with the power of sentience it sort of depends on whose administration we're talking about. When your political philosophy is "government is the problem, elect me and I'll prove it," you've kind of forfeited your claim to good faith.

The problem with modern leftism is the same as that of the monarchy, there is no such thing as a beneficent ruler.

So true... those infernal "unitary executive" liberals.

Bart, you have a very strong vested interest in not extending your attention span. I mean, who wants to be a silly person?
 

"Bart" DePalma:

Once again, you may want to actually read my posts. I argue that expressly enumerated Article powers trump general Article II powers. Where I sharply disagree with Marty and some others here concerns the extent of Article I powers. I read the plain text of Article I to conclude that Congress is limited to those powers actually enumerated in Article I while my opponents conclude that Congress can do damn near anything it wants.

"Bart" reads the Tenth Amendment to say: "The powers not delegated to Congress by the Constitution, are handed over lock-stock-and-barrel to the Preznit as long as he says 'Simon says' beforehand (or 'nash'nul securitah')."

Cheers,
 

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