Patterico's Pontifications

10/22/2007

Sunstein and Miles Screw the Pooch on Judicial Activism and Partisanship

Filed under: General — Patterico @ 9:14 pm

Cass R. Sunstein and Thomas J. Miles have an op-ed in today’s L.A. Times. It’s another one of those pointless exercises that tries to measure “activism” and “partisanship” with studies that purport to be “objective” while ignoring the real issue: are judges deciding cases correctly?

With regard to partisanship, Sunstein and Miles say:

[W]e examined all cases in which members of the court, using settled principles, evaluated the legality of important decisions by federal agencies, such as the Environmental Protection Agency, the National Labor Relations Board, the Occupational Safety and Health Administration and the Food and Drug Administration.

We used clear and simple tests to code the decisions of these agencies as either “liberal” or “conservative.” For example, we counted an environmental regulation as “liberal” if it was challenged by industry as too aggressive, or as “conservative” if it was challenged by an environmental group as too lax.

We used equally simple tests to code the decisions of the justices. If a member of the court voted to uphold conservative and liberal agency decisions at the same rate, we deemed him “neutral,” in the sense that his voting patterns showed no political tilt. If a justice showed such a tilt, we deemed him “partisan.”

The problem is: what if all the decisions they are looking at are really liberal?

I can’t express the problem any better than this commenter did at the University of Chicago Law Blog:

Perhaps I am missing an element of the analysis in the LA Times article (which was really more of a synopsis), but it doesn’t seem like the partisanship ranking really tracks partisanship in terms of potential bias (the conventional connotation of the term). Imagine a world in which agencies have a “liberal” bias and that bias manifests itself in the agency’s willingness to overstep the bounds of its proper authority in defense of liberal positions. In that world, wouldn’t a justice who voted against upholding decisions that exceeded agency authority be described as “partisan conservatives” in this analysis even though the justice’s decisions were not influenced at all by the liberal/conservative result being reached by the agency?

Bingo.

Sunstein and Miles make a similar error when they examine “activism” vs. “restraint”:

If a justice regularly voted in favor of agencies, we deemed him “restrained,” because he proved willing to accept the decisions of another branch of government. If a justice was unusually willing to vote against agencies, we deemed him “activist,” in the literal sense that he frequently used judicial power to strike down decisions of another branch.

But here, they at least acknowledge that their artificial labels elide the question of whether the decisions are correct:

Note that the terms “restrained” and “activist” are purely descriptive, and so permit an objective test of judicial behavior. It is possible that a justice who is restrained, in our sense, is wrong, and that an activist justice is right.

Indeed. But, like studies that examine activism by reference to the rate at which justices vote to overturn laws, the caveat swallows up the utility of the analysis. As I said about a similar study in September 2006:

If California passed the “Imprison All Arabs Law of 2006″ tomorrow, and a court were to strike it down, this study would label such a ruling an “activist” decision.

Let’s take a couple of similarly absurd examples in the regulatory context. Let’s pretend that the FDA, without any good reason, imposes a 20-year certification process for a new cure for cancer — one that has saved millions of lives throughout the rest of the world with no side effects. If a court struck that down, Sunstein and Miles would label that decision “activist” — even though it would be obviously correct.

If the court upheld a bribery-induced FDA approval of thalidomide as a cure for morning sickness, that would be “restrained” — even though the regulation the court upheld would be insane and would lead to tragic birth defects.

Why do we keep paying attention to studies like this?

UPDATE: More here.

13 Responses to “Sunstein and Miles Screw the Pooch on Judicial Activism and Partisanship”

  1. Glad you were able to post this. I wanted to do the same all day since I read the op-ed this morning, but just didn’t find the time. Couldn’t have analyzed it better myself.

    Justin Levine (ab0a31)

  2. You nailed it in your opening paragraph. Good judicial decisions are neither liberal nor conservative, only good application of the law which results in correct rulings. The fact that one group or another complains about the decision has nothing to do with its merits which should be all we are interested in. I can point to a number of decisions which I dislike, but which I’m willing to admit were correctly decided. I can also point to some I think poorly decided even though I agree with the results of the decision.

    Fritz (724b86)

  3. Why do we keep paying attention to studies like this?

    Because the media and the intelligentsia are addicted to liberal professors from elite colleges and law schools that tell them what they want to hear.

    DRJ (35ac59)

  4. Robert Bork, John Roberts, and Balkin’ Bob Davidson
    Chris Eisgruber at Balkinization I’m putting up the whole thing]

    This post is the second of three marking the 20th anniversary of the Senate vote rejecting Robert Bork. I ended the first post by referring to the myth of the neutral umpire. The New York Times editorial page supplied fresh evidence of the myth’s power on September 30, as the Supreme Court was readying to open its term. (The editorial is here ).

    The Times lamented that John Roberts was not the neutral umpire he had promised to be in his confirmation hearings. His votes last term, The Times observed, were staunchly conservative. I agree. The editorial concluded with the proclamation that “if the justices act as umpires and call balls and strikes, this term could produce some real victories in voting rights, the death penalty and civil liberties.”

    What could The Times have had in mind? As others have noted, the problem with Roberts’s promise to be an umpire is not that he failed to keep it, but that it made no sense. In baseball, umpires apply clear rules to contested facts. They have to answer questions such as, “Did the ball cross the plate, or was it an inch outside?”

    Sometimes their calls are controversial. Indeed, some umpires are controversial. Baseball junkies argue about umpires like Balkin’ Bob Davidson, who got his nickname not because he reads Jack’s blog but because some people think he calls too many balks.

    Yet, even the controversy over Balkin’ Bob focuses on the application of clear—if highly technical rules—to factual details. For umpires, disputes about the meaning of the rules are rare. They come up occasionally—does putting too much pine tar on a bat invalidate a home run hit with it?–but not often.

    On the Supreme Court, matters are reversed. The Court takes only cases in which the law is unclear. Indeed, for the most part, the Court takes only cases in which capable judges not only can, but in fact have, disagreed about what the rules say.

    In principle, Supreme Court justices could avoid difficult judgments by deferring to elected officials whenever the Constitution’s meaning was unclear. In my view, this broad-brush deference would be a mistake, but there is still a substantial amount to be said in favor of it. Not surprisingly, it has distinguished defenders, including Mark Tushnet and Jeremy Waldron.

    In practice, though, no recent justice has consistently practiced such deference. Every justice, liberal or conservative, has thought it desirable to allow his or her controversial judgments about constitutional meaning to trump the views of elected officials with regard to some issues.

    The problem with John Roberts, then, isn’t that he has allowed his values to influence his jurisprudence—that’s inevitable. The problem with Roberts—if you agree that there is a problem—is that his values are extremely, rather than moderately, conservative. And the problem with the current highly choreographed confirmation process is that it allowed Roberts to win confirmation without revealing much of anything about those values.

    Values matter in Supreme Court adjudication. For that reason, they must matter, too, in the Supreme Court confirmation process. In The Next Justice, I try to describe how that can happen, and in my third and final posting in this series, I will summarize some of the book’s recommendations.

    blah (a01d4a)

  5. Robert Bork, John Roberts, and Balkin’ Bob Davidson
    Chris Eisgruber at Balkinization

    blah (a01d4a)

  6. Whatever nitpicking you do to this study, for me it is just another nail in the coffin that the Court sets aside their biases when they go to work. They don’t decide cases on neutral legal principles, they pick the outcome they want and then rationalize, oops I mean, find some basis in law for their decision. There’s no way any so-called legal principle leads to a situation where Thomas rules the way he does, any more than it would explain Stevens ruling the way he does.

    Justices – all of them – decide based on their biases and it’s idiotic to pretend otherwise. For that reason, I agree that studies like this are silly. Not for the reasons you cite, but for their attempt to take politically/philosophically motivated decisions and measure them according to some ‘neutral’ standard. Who cares if they’re activist or restrained? The public – conservatives and liberals alike – only cares if they’re making the ‘right’ decisions.

    steve sturm (40e5a6)

  7. In the activism v. restraint paragraph you quote, they seem to refer to agencies as a branch of government. Wow. Agencies are created by legislation, but they’re hardly their own branch. The typical agency has elements of each of the three branches and any act of the agency subject to judicial review could be either executive in nature, legislative or adjudicative. Did they recognize this at all?

    rfy (0f1c61)

  8. rfy – there are a lot of agencies like that (and I think that they violate the Constitutional separation of powers), but not all of them. Several of them are parts of (and subordinate to) the three branches, but there are a lot of independent agencies Congress has created which are therefor unaccountable and intrude on other branches’ jurisdiction.

    LarryD (feb78b)

  9. Scalia often notes that when he disparages “judicial activism,” he isn’t referring to judges “actively doing what they’re supposed to be doing,” a nuance that is lost on the folks who write these silly judge-rating articles every year. Here is a similar editorial from the NYT a year ago. Same old same old, I think they really believe the false premise they always set up–that striking down an unconstitutional law or precedent is the equivalent of legislating from the bench. http://www.nytimes.com/2006/09/11/opinion/11mon2.html

    Lori Ringhand, a professor at the University of Kentucky College of Law, examined the voting records of the Supreme Court justices from 1994 to 2005. Because judicial activism is a vague concept, she applied a reasonable, objective standard. In the study, which is forthcoming in Constitutional Commentary, justices were considered to have voted in an activist way when they voted to overturn a federal or state law, or one of the court’s own precedents.

    The conservative justices were far more willing than the liberals to strike down federal laws — clearly an activist stance, since they were substituting their own judgment for that of the people’s elected representatives in Congress. Justice Thomas voted to overturn federal laws in 34 cases and Justice Scalia in 31, compared with just 15 for Justice Stephen Breyer. When state laws were at issue, the liberals were more activist. Add up the two categories, and the conservatives and liberals turned out to be roughly equal. But Justices Thomas and Scalia, who are often held out as models of nonactivism, voted to strike down laws in more of these cases than Justice Breyer and Justice Ruth Bader Ginsburg, the court’s two Clinton appointees.

    By the third measure, overturning the court’s own precedents (for which data were available only up to 2000), the conservatives were far more activist. Justice Thomas voted to overturn precedent 23 times and Justice Scalia 19 times, while the court’s four liberals did so in 10 cases or fewer.

    Why do we keep reading these studies? I dunno, I guess because it gets our dander up.

    driver (faae10)

  10. http://balkin.blogspot.com/2007/10/robert-bork-john-roberts-and-balkin-bob.html

    “Wednesday, October 17, 2007
    Robert Bork, John Roberts, and Balkin’ Bob Davidson

    Chris Eisgruber

    This post is the second of three marking the 20th anniversary of the Senate vote rejecting Robert Bork. I ended the first post by referring to the myth of the neutral umpire. The New York Times editorial page supplied fresh evidence of the myth’s power on September 30, as the Supreme Court was readying to open its term. (The editorial is here ).

    The Times lamented that John Roberts was not the neutral umpire he had promised to be in his confirmation hearings. His votes last term, The Times observed, were staunchly conservative. I agree. The editorial concluded with the proclamation that “if the justices act as umpires and call balls and strikes, this term could produce some real victories in voting rights, the death penalty and civil liberties.”

    What could The Times have had in mind? As others have noted, the problem with Roberts’s promise to be an umpire is not that he failed to keep it, but that it made no sense. In baseball, umpires apply clear rules to contested facts. They have to answer questions such as, “Did the ball cross the plate, or was it an inch outside?”

    Sometimes their calls are controversial. Indeed, some umpires are controversial. Baseball junkies argue about umpires like Balkin’ Bob Davidson, who got his nickname not because he reads Jack’s blog but because some people think he calls too many balks.

    Yet, even the controversy over Balkin’ Bob focuses on the application of clear—if highly technical rules—to factual details. For umpires, disputes about the meaning of the rules are rare. They come up occasionally—does putting too much pine tar on a bat invalidate a home run hit with it?–but not often.

    On the Supreme Court, matters are reversed. The Court takes only cases in which the law is unclear. Indeed, for the most part, the Court takes only cases in which capable judges not only can, but in fact have, disagreed about what the rules say.

    In principle, Supreme Court justices could avoid difficult judgments by deferring to elected officials whenever the Constitution’s meaning was unclear. In my view, this broad-brush deference would be a mistake, but there is still a substantial amount to be said in favor of it. Not surprisingly, it has distinguished defenders, including Mark Tushnet and Jeremy Waldron.

    In practice, though, no recent justice has consistently practiced such deference. Every justice, liberal or conservative, has thought it desirable to allow his or her controversial judgments about constitutional meaning to trump the views of elected officials with regard to some issues.

    The problem with John Roberts, then, isn’t that he has allowed his values to influence his jurisprudence—that’s inevitable. The problem with Roberts—if you agree that there is a problem—is that his values are extremely, rather than moderately, conservative. And the problem with the current highly choreographed confirmation process is that it allowed Roberts to win confirmation without revealing much of anything about those values.

    Values matter in Supreme Court adjudication. For that reason, they must matter, too, in the Supreme Court confirmation process. In The Next Justice, I try to describe how that can happen, and in my third and final posting in this series, I will summarize some of the book’s recommendations.

    Posted 6:26 PM by Chris Eisgruber [link] “

    blah (a01d4a)

  11. Putting up an entire post in the comment section…

    Blah = AF

    Values matter in Supreme Court adjudication.

    Yes, they do. The question is…

    Do you value law, or do you value Magic?

    Do you interpet the US laws as written on the books, or do you simply make them up as you go?

    Paul (146bba)

  12. #3…
    DRJ illustrates once again why she is a prominant guest-blogger on this site.
    Nothing like cutting to the heart of the matter.
    Keep up the great work.

    Another Drew (8018ee)

  13. Isn’t activism generally defined as the rate at which justices vote to overturn laws? I didn’t think judicial activism includes any qualitative analysis of whether the decision was right- just whether a court overturned a decision of legislature or the executive. And also, one might imagine this world where all agencies are liberal, but so what- it still gives us a benchmark (the judge is generally more or less liberal then federal agencies). The alternative is trying to qualitatively analyze the agencies decision first- a task fraught with subjectivity.

    Adam (601ca3)


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