Balkinization: What We Can Learn from that Times Graph

What We Can Learn from that Times Graph

Guest Blogger

David Strauss

Cary Franklin and Joey Fishkin seem right on target in their post on the NYT Upshot article about the “leftward” move of the Roberts Court (I mean substantively; I have friends among the authors of both the article and the post, so no comment on tone!). The Times article shows the Court’s left-right movements against a baseline that the Court itself has created by its previous decisions. Today, a decision upholding a state law forbidding the concealed carry of firearms would code as liberal; that “leftward” movement rejects an argument no one would have made had the Court not already moved well to the right on gun control. If the Court rules, in a few days, that state discrimination against gays is generally unconstitutional but there is no right to same-sex marriage, that will be a major defeat for liberals; a generation ago, that would have been a huge liberal victory.

But the Times’s graph might still be valuable, in two ways (both of these are basically generalizations of Cary and Joey’s point about lower court judges). The graph does show the direction in which the Court is moving the law—either because the Court is unhappy with what the lower courts are doing or because it is unhappy with its own precedents. The late Warren Court was pretty aggressively moving in a liberal direction; and it makes sense that the Roberts Court moved aggressively in a conservative direction its early years but, now that it’s done some of what it wants to do, is sometimes rejecting efforts to push things even further in a conservative direction (thus the “leftward” move in the Times graph).

To put it in the math-y terms that Cary and Joey justifiably make fun of, you could say that the function shown in the graph is not how liberal or conservative the Court is, but maybe the first derivative of that function—the rate at which the Court is moving in one direction or another. If so, then if we add up the blue areas on the graph, and compare them to the red areas, we might have an idea about whether the Court has, overall, moved the country in a liberal or conservative direction over the last 70 years. (This assumes that the average liberal decision is as important as the average conservative decision, but maybe that’s a defensible assumption.)

Just eyeballing it, it looks as if there is slightly—only slightly—more blue on the graph than there is red. If so, then granting all those admittedly questionable assumptions, over a two-generation period that included the most liberal Court in U.S. history, the overall net effect of Supreme Court decisions was to nudge the country only slightly in a more liberal direction. That would be grist for the mill of those who want to revive the Brandeis/Frankfurter position that progressives should be advocates of across-the-board judicial restraint.

David Strauss is Gerald Ratner Distinguished Service Professor of Law, University of Chicago Law School. You can reach him by e-mail at d-strauss at uchicago.edu

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