In her dissenting opinion on a landmark 2018 Supreme Court case with major consequences for organized labor, Justice Elena Kagan pulled no punches.
The Court’s conservative-leaning faction—composed of Justices Alito, Roberts, Kennedy, Thomas, as well as Gorsuch—had overruled a long-held precedent “for no exceptional or special reason, however because the idea never liked the decision,” she argued. “the idea has overruled [the precedent case] because the idea wanted to.”
Reading in which opinion, Jörg Spenkuch, an associate professor of managerial economics as well as decision sciences at Kellogg, thought in which the idea might hold the answer to a long-standing puzzle about the Court.
Since the 1940s, political scientists have known in which the ideology of a judge—whether conservative or liberal—often predicts which way he or she will vote. Less clear, however, can be why. Some have argued in which judges earnestly try to enforce the law impartially—as John Roberts stated in his 2005 confirmation hearing: “the idea’s my job to call balls as well as strikes, as well as not to pitch or bat.” In This specific view, conservatives as well as liberals come to different rulings simply because they interpret the Constitution differently.
however, as Kagan’s dissent hinted, there can be another, more cynical hypothesis: in which judges are wannabe policymakers actively seeking to push the law from the direction of their choosing.
“The question can be, how do you figure out using data what can be as well as isn’t true?” Spenkuch says.
In a brand new paper with B. Pablo Montagnes as well as Tom S. Clark of Emory University, Spenkuch sought to determine if the idea in which judges are policymakers holds water. The team analyzed votes by Supreme Court justices on more than 8,500 cases since World War II. They found in which when a justice casts the deciding vote, his or her personal beliefs suddenly matter far more.
“The effect of a justice’s ideology on how he or she votes essentially doubles when the vote can be pivotal,” Spenkuch says.
The results prompt serious questions about the neutrality of the judicial branch, since the idea suggests in which a justice may treat a case differently just because the idea presents a chance for them to shape policy. “Our idea of a not bad judge can be in which of an impartial umpire,” Spenkuch says. “however justices in some cases disregard the role of the umpire in favor of in which of the politician.”
Supreme Court Decision-producing
from the 1980s, Supreme Court scholars pioneered a creative way to ascertain a judge’s ideological leanings. Scouring editorials about a justice published in major U.S. newspapers from the months following his or her nomination, they determined whether in which individual was perceived as liberal or conservative, as well as how far through center he or she fell.
Strange as the idea may seem, This specific technique has proved remarkably effective. A judge whom editorial writers depict as a mild conservative, or a hardline liberal, will often vote like one.
however judges are not equally partisan in every case. Many rulings are 9-0, as well as even a sturdy liberal or conservative will occasionally side with the opposite camp. So why does ideology matter in some cases however not others?
“The effect of a justice’s ideology on how he or she votes essentially doubles when the vote can be pivotal.”
from the past, scholars have argued in which ideology comes into play when there are differing legal interpretations involved, or because certain litigants touch a nerve with particular justices. however Spenkuch as well as his colleagues wanted to test a brand new theory: in which a judge votes more in-line with their ideology when their vote matters more.
Spenkuch had several reasons to suspect This specific. Not only do opinions like the Kagan dissent suggest in which justices relish affecting an important precedent, he says, however the Court’s decision-producing process ensures in which justices know when they, personally, have an opportunity to do so.
After the Supreme Court hears oral arguments, the justices meet in private to discuss the case at hand. Although no reporters are allowed from the room, memoirs through former justices describe what happens next. “They sit around the table as well as they talk in order of seniority about the case—what they think the legal arguments are, as well as how the case should be decided,” Spenkuch says.
Thus, every justice will know how every some other justice can be planning to vote as well as whether their own vote could be the deciding factor from the case.
In order to determine whether their suspicion was correct, the researchers turned to the Supreme Court Database, a massive public collection of detailed information about every case since 1946. The database also includes attributes of individual justices, including individual votes as well as an ideology score (computed with the newspaper-editorial technique).
The researchers used statistical methods to determine whether each judge reliably swung further towards one side when his or her vote was pivotal versus non-pivotal.
“What I mean by ‘pivotal’ can be in which, if you change your vote, holding all else constant, the case would likely be decided differently,” he explains. “So in a 5-4 decision, every justice from the majority can be pivotal—not just the median justice.”
“Politicians in Robes”
The researchers found in which, when casting a pivotal vote, liberal justices are more likely to vote liberally while conservatives are more likely to vote conservatively, compared to when those same judges cast a non-pivotal vote.
In short, justices vote differently when they realize in which their vote genuinely matters.
as well as the pattern becomes more pronounced for justices who are more ideologically extreme. The researchers found in which the more liberal or conservative a justice can be, the more frequently he or she votes in in which direction when casting the deciding vote.
Next, the researchers wanted to break down why being pivotal mattered so much. Was the idea simply about who wins the case or about the precedent the idea sets when being cited in future cases?
To dissect these two factors, they took advantage of the fact in which a judge can agree with some other justices about which litigant can be from the right, however will disagree about why. In those instances, the judge writes a separate opinion, in which he or she lays out his or her unique reason for the vote. When This specific happens, separate opinions are issued, as well as every justice can choose which opinion to join.
in which means in which there are times when a judge’s vote can be not pivotal for the outcome of the specific case however can be pivotal for setting case precedent. This specific can be because for lower courts to be bound by a Supreme Count opinion, 5 justices need to have backed in which opinion. So the idea can be possible for a case to have six certain votes siding with, say, the prosecution, however for those six justices to be split 4-2 between Explanation A as well as Explanation B. In This specific case, one of the remaining justices can become pivotal if they join the four justices, thus producing Explanation A the precedent.
Analyzing these unusual cases, Spenkuch as well as his collaborators were able to parse whether pivotal votes mattered because judges wanted to shape precedents or because they wanted to shape outcomes.
“as well as what we show can be in which both seem to matter,” he says.
Considering the Supreme Court Tiebreaker Theory
While these findings seemed to support “the idea in which justices are genuinely politicians in robes,” as Spenkuch puts the idea, there was an alternative explanation to consider. Prominent jurist-cum-economist Richard Posner has argued in which in cases with ample ambiguity as well as strong legal arguments on both sides, judges’ ideology can be not so much a driving motivation, however a nudge in which can help make a tough decision.
“In Posner’s view, the reason justices vote ideologically can be in which they would likely like to call the balls as well as strikes, however they lack the necessary information to do the idea,” Spenkuch says, so they let their ideology take the place of in which information.
If This specific was the case, then judges may be more partisan in pivotal votes not because they are trying to impact the outcome, however because being pivotal goes hand in hand with more ambiguity. in which would likely mean in which pivotal justices should become more polarized in especially ambiguous cases.
“So we looked at situations where there should be more uncertainty on legal grounds,” Spenkuch says.
The researchers isolated the cases in which lower courts had disagreed about the correct ruling, suggesting in which there was considerable uncertainty from the law. In those cases, pivotal voters were actually less ideological than in nonambiguous cases—the opposite of what Posner’s theory predicted.
“in which, I think, lets us rule out Posner’s tiebreaker explanation,” Spenkuch says.
Not Umpires After All?
Spenkuch believes in which his findings fly from the face of how Supreme Court justices try to present themselves. “During confirmation hearings, no justice ever admits in which they’re interested in producing policy,” he says, alluding to Roberts’s claim in which judges simply “call balls as well as strikes.”
The study casts doubt on in which claim. as well as the idea poses a big question about the true role of the Court, since justices may be changing their votes based on how their colleagues vote.
“There can be a nontrivial number of cases in which would likely be decided differently if justices did not vote strategically,” he says. “the idea draws into doubt the notion of the Supreme Court as an institution where litigants come to get justice.”