Over at No Left Turns, Joe Knippenberg has an interesting take on yesterday’s front-page analysis in the Washington Post of Judge Alito’s record on the Third Circuit. Frankly, Joe has more patience for this kind of “fisking” than I have, and doubtless more skill at it. But I think I can add a little to what he says.
Joe is miffed about this aspect of how the newspaper proceeded (quoting the Post itself now):
To examine his record, The Post looked at how Alito voted on all 221 cases he has helped to decide in which the 3rd Circuit . . . issued a divided ruling. Those cases provide a revealing window to a judge’s ideology, judicial scholars say, because they involve legal issues that are unclear.
It strikes me as a mistake to attempt to characterize his position by looking only at these cases, unless of course one is trying to emphasize the aspect of his profile that is most potentially controversial, and least readily assimilable to a judicial “mainstream.” The reporters argue that these cases are most closely akin to the sorts the Supreme Court would hear, and hence presumably are the best predictors of how he’d vote. I’d reply, first, that there’s no better predictor of how he’d vote than his entire record.
Quite right, Joe. But I think you may recall, if you took any of the same kind of grad-school timewaster classes I was forced to endure, that it has long been the standard approach among the “behavioralists” who study the judiciary to stick only to the cases that are nonunanimous, decided by a divided bench. If your interest is not in whether the judges’ arguments make any sense, or whether they are doing the right thing or the wrong thing by the law and the Constitution, but instead you are only interested in exploring the judges’ “ideology,” then what you need is a data set consisting of cases in which the judges disagree. And it’s not, as the Post’s “judicial scholars say, because they involve legal issues that are unclear.” It’s because you need data you can “code” as left or right–and what are you gonna do when panels of judges agree? Heavens to Betsy, you might actually have to read the opinions and do some thinking!
This focus on the nonunanimous rulings got its start with the pioneering 1948 book The Roosevelt Court, by the late University of Chicago political scientist C. Herman Pritchett. That book included tables analyzing, for instance, the rates of agreement and disagreement among the justices in nonunanimous decisions. But at least this classic “breakthrough” book in the study of judicial behavior still mainly consisted of narrative analysis of the reasoning in judicial opinions–the analytical tables were a dessert, not the main course, for the average intelligent reader of Pritchett’s very interesting book. For behavioral political scientists, the dessert became the new main course–like Edmund in Narnia, who thinks he can live on Turkish delight.
The Post’s writers know there is dispute about the efficacy of this sort of analysis. They write:
The idea of trying to gauge a judge’s ideology from his voting patterns on different types of cases is unpopular among law professors who prefer to study legal reasoning case by case. But the method used by The Post is well accepted among political scientists — many of whom clump together votes on types of cases to determine whether a judge is liberal or conservative, a step The Post did not take.
It is true that law professors do not favor the approach that dominates political science. But I wouldn’t exactly say they “prefer to study legal reasoning” instead. For most of the law-school specialists in constitutional law, “legal reasoning” as an enterprise with its own integrity is unfashionable, if not considered altogether dead. What they generally practice is a kind of “ideologizing” of their own, playing at the construction of “constitutional theory” (invariably result-oriented exercises in the restatement of political preferences as though the Constitution commanded them) and then criticizing judicial opinions as to whether they conform or fail to conform to the scholars’ preferred “theory.”