Playing Politics

Ed Whelan and Matthew Frank have already criticized yesterday’s New York Times piece by Adam Liptak, particularly its acceptance of a political-science study that used the crude technique of gauging the conservative/liberal bent of the Supreme Court by coding decisions based on their outcome in “political” terms. The study is certainly full of politics, but science? Not so much.

Put briefly, the study identifies litigants/interests in Supreme Court cases by gross ideological categories (e.g. criminal defendants vs. prosecution, corporations vs. consumers, unions vs. employers, government vs. individuals), then adds up the winners and losers from the “left” and the “right” to assign an overall ideological score. Thurgood Marshall famously described his approach to the law as “you do what you think is right and let the law catch up,” and if you subscribe to Marshall’s philosophy, this type of blunt head-counting might make sense. The problem is that “conservative” judges are downright allergic to such an activist philosophy, because they believe that it is the judge who must “catch up” to the law by putting aside political preferences when deciding cases.

To his credit, Liptak acknowledges several flaws of the study, but suggests that the coding only gets thrown off on the “occasional case.” In fact, there are large groups of cases for which the coding doesn’t make any sense at all. First, there are the cases in which the most conservative justices typically side with what are considered “liberal” causes. These include many pro-criminal-defendant cases; conservative judges take the Constitution seriously, and the Constitution includes strong protections for criminal defendants. That is why Prof. Douglas Berman, author of both a sentencing textbook and the widely-cited blog Sentencing Law and Policy, has called Justice Scalia “the federal criminal defendant’s best friend.”

The use of medical marijuana was another case in which the conservatives came to a “liberal” result: Justices O’Connor and Thomas and Chief Justice Rehnquist cited Commerce Clause limits on the federal government’s power to restrict medical marijuana. Justice O’Connor explicitly stated that she would not support a medical-marijuana law as a policy or political matter, but did so as a purely legal matter — emphasizing that politics and judicial philosophy simply do conflict, and the former must give way to the latter.

More fatal to Liptak’s argument is that it ignores a basic tenet of statistics, namely that correlation is not equivalent to causation.

Let’s presume that there has been a detectable shift in the political makeup of High Court winners and losers coincident with the recent entry of new justices. But this fact, standing alone, in no way proves that political decisionmaking has replaced the rule of law. Indeed, the shift may actually provide evidence that political decisionmaking is in retreat and the rule of law is being restored. To illustrate how this may be so, consider the issue of standing. Judges that subscribe to a philosophy of judicial restraint view the Constitution’s “case or controversy” clause as placing real limits on the power of federal judges to hear and decide issues of their choosing (thereby limiting the power of the judiciary itself). Thus they have shut the courthouse door on conservative religious believers who object to the government’s “un-Godly” use of tax dollars just as quickly as they have turned away liberal environmental groups seeking to sue on behalf of Mother Earth. Yet, of these two groups, it is the environmentalists that are newer, better organized, and better funded, and thus more likely to litigate their cases all the way up to the Supreme Court. The end result is that even if justices affirm the same precedents used against the religious protestors in the process of turning away environmental groups, they will get labeled as politically conservative under the study.

Let’s also not forget another major contributor to the Court’s docket, the hyper-activist Ninth Circuit court of appeals. Since one of the main functions of the Supreme Court is to ensure uniformity of the law among the federal appellate courts, the Ninth Circuit’s many outlier and hare-brained decisions provide a steady diet of cases for the High Court to reverse. These decisions, of course, are tilted heavily on the liberal side of the ledger under Liptak’s calculus, so when they are reversed, and the rule of law is restored, the court gets dinged as politically conservative. A more liberal court, however, would not have even granted certiorari and would thereby let many a liberal decision stand, yet its silent affirmations would be scored as politically neutral. Indeed, if we accept that the Warren Court era was extremely liberal (and most do), a strong rightward tilt would be necessary even to move the Court to center.

The real question is not who is winning and losing, but whether the justices are faithfully interpreting the Constitution and the law or following the Marshall rule of judging. But this study is far too simplistic to discern whether judges are in fact deciding cases due a politically driven agenda or a sincere application of judicial philosophy to the facts and the law as they come before the court. Since President Obama and the Senate Democrats have been falling over themselves recently to try to show that the current Court is playing politics, they will surely try to use this terminally flawed study to that end.

Now who’s playing politics?

Carrie Severino — Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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