Ideology and Supreme Court Voting Patterns:
Lawprof Ward Farnsworth has a fascinating article in the October 2005 issue of the Michigan Law Review about the voting patterns of Supreme Court Justices. A draft The final version of the article is available here: Signatures of Ideology: The Case of the Supreme Court's Criminal Docket.

  The article studies voting patterns of individual Justices in nonunanimous cases from the Supreme Court's criminal docket over the last 50 years. The study compares what in theory should be apples and oranges: the rate a Justice voted for the government in constitutional cases and the rate a Justice voted for the government in nonconstitutional cases. Farnsworth's hypothesis, in a nutshell, is that a very high correlation between a Justice's voting pattern in constitutional and statutory cases suggests that ideology is driving decisionmaking. If votes are being cast by applying principled interpretive methods, such as originalism, textualism, etc., there shouldn't be much of a correlation between the two rates for a particular Justice.

  The key finding of the study, as demonstrated in charts in the first few pages of the paper: a very high correlation between voting patterns in constitutional and nonconstitutional cases for almost all of the Justices. As Farnsworth summarizes, "knowing how often a Justice votes for the government in the constitutional cases gives us a very strong sense of how often he votes that way in the cases not involving the Constitution."

  What do these results say about how Justices decide cases? Farnsworth, a former Supreme Court law clerk, offers the following take:
  [T]he point isn't that the decisions are "all politics," or that the Justices always vote their policy preferences. We must remember that these cases we are studying are the non-unanimous ones, and that there are others where the left-most and right-most Justices agree. The better interpretation is that every case provokes competition between a Justice's preferences on the one hand and the legal materials on the other. When the legal materials are very strong, they can produce unanimity despite conflicting preferences. But when the legal materials aren't so strong—when they don't point to a clear answer, and leave room for discretionary judgment—the competition is won by the Justice's underlying preferences and views of the world. Those views of the world are the same regardless of what provision is at stake in a case; that is why there is so much convergence between the results in cases involving different sources of law. Whether a statute or rule or the Constitution is involved, the important question is simply how clearly the Justices think the source of law speaks to the case.
  This is a very interesting and provocative paper. It seems to me that there are some plausible ways in which Justices could be quite principled and still have a high correlation between their votes in constitutional and nonconstitutional cases. Still, this is a very interesting paper, much worth reading. And as an added bonus, the whole thing is only 35 pages long.
When the legal materials are very strong, they can produce unanimity despite conflicting preferences. But when the legal materials aren't so strong—when they don't point to a clear answer, and leave room for discretionary judgment—the competition is won by the Justice's underlying preferences and views of the world.

---This is news?
10.24.2005 2:43am
Shelby (mail):
Perhaps he deals with this issue in the paper, but wouldn't one expect more deference to the government in non-constitutional cases than in constitutional ones? And wouldn't that affect the distributions of results?

Essentially, it's more likely that a court will (and should) defer to the government regarding statutory interpretation than regarding constitutional interpretation. Or am I off-base here?
10.24.2005 4:08am
George of the Legal Jungle (mail):
Reason, one thing good scholarship (a rarity) does is confirm or falsify things we assume. Some people are content to believe that their assumptions are true. Others want to verify them. I'm glad there are people willing to test "common knowledge."

Anyhow, here's a tidbit I found especially interesting. I consider (re: assume, perhaps like "Reason") that Justice Scalia is a pro-government hack. But the paper showed me that I need to read more of his statutory cases: "The only Justice to use the rule of lenity often and distinctively is Justice Scalia, who applied it in ten of the last eleven cases where it was made an issue. This helps explain why Scalia's votes in statutory cases tend to favor the government less often than his votes in constitutional cases, for there is no rule of lenity in constitutional law." It could be the case that Scalia's a pro-government hack, but the burden has now shifted to me to prove it. (Of course, in conversations with friends I will pretend I never read the article, and thus I'll be able to confidently proclaim that Scalia just hates the "little guy." But that's the price we pay to be popular.)
10.24.2005 4:40am
Phil (mail):
I actually find J. Scalia to be the most principled Justice currently on the Court, perhaps ever on the Court. Even a cursory reading of his opinions on the confrontation clause, e.g., Craig v. MD (dissenting), search and seizure, e.g., Hicks v. AZ (over SOC's dissent), or the First Amdt, e.g., Sable communications v. FCC (concurring) demonstrate that one is free to despise Scalia, but not because he is a hack. Similarly, if one thinks that he hates the little guy, his vote in, e.g., Texas v. Johnson is inexplicable.
(Just so this does not begin a trulky pointless discussion, I can name at the drop of a hat a haf dozen cases where I think Scalia is flat-out wrong, but flat-out wrong and pro-govt hack are not co-extensive.)
10.24.2005 7:29am
The article appears to support my theory that the most effective argument I can make for my clients before conservative judges is:
A vote for my client will hurt most other criminal defendants.

Actually, when describing the argument, I usually use words stronger than "hurt," but those words would violate the rules for comments on this blog.
10.24.2005 9:07am

>It seems to me that there are some plausible ways in which Justices could be quite principled and still have a high correlation between their votes in constitutional and nonconstitutional cases.<

I wonder what those would be. For liberals, though, there's actually no facial inconsistency here, since liberals tend to admit that judging involves a component of personal judgment. It's the supposed judicial conservatives who have the explaining to do.
10.24.2005 10:43am
dj subzero (mail) (www):
article looks fascinating, but largely serves to confirm what's fairly obvious to anyone who has worked for judges or otherwise had an opportunity for extended observation: there's no real reason that a judges view of the judicial role and his or her politics should line up. that is, it's entirely consistent to believe most things should be left to the legislature, but to fully support all sorts of lefty policy if given the chance to vote oneself. e.g., judge believes death penalty should be left to legislature, but is opposed, believes gay rights should be left to legislature, but in favor, etc. in real life, however, most judges politics match their view of the judiciary: leave it to legislature, so that it's free to permit the death penalty, limit gay rights, limit abortion, etc.

a related oddity: you would think the right would be more oriented towards natural law rather than positivism. that is, conservatives would seem more likely to believe that there are inherent rights that should be respected regardless of what a particular text might say, while liberal relatavists would leave it up to whatever system has been established (positivism), respecting the differences between cultures and countries. but in the law, it's backwards: the right believes in positivism -- with some very limited exceptions based on consent and contract, the court's should enforce whatever rule the legislature adopts and is willing to back by force. the left believes that it doesn't matter what the text expressly states or what the founders originally intended -- instead, there are certain natural law rights that should be protected regardless of where we root them. (we live in a time of such strange reversals, where the left opposes the overthrow of dictators while the right rejects realpolitik.)
10.24.2005 1:40pm
DrewSil (mail):
The point of the paper (as noted by George) is that it provides a testable hypothesis. The hypothesis is that the percentage of rulings for the government in constitutional and statutory cases is highly correlated. The first short part of the paper proves this hypothesis conclusively. The second, and far larger, part attempts to explain the correlation as deriving from justices ennacting thier own preferences. In particular the opinions of varied cases are analyzed in light of this second hypothesis.

That this corresponds with the common wisdom is interesting, but as George points out it is important to test and verify conventional wisdom.

Finally if you are willing to buy the later argument about the correlation in rulings implying a use of policy preferences then you have an objective measure on which to examine judges biases. This could be useful to an actual sitting judge evaluating her own biases, or for a third parties use in evaluation. The best reccomendation of the reasearch is that it can actually convince people of things which they would not have agreed to previously (see for example George's discussion. While this may have been obvious to Phil beforehand, his arguments (read the opinions) were unlikely to convince his opponent. Opinions don't necessarily reflect actual reasons for a decision (as is pointed out in the article).
10.24.2005 3:59pm
This is news to you? May I suggest you take a gander through this? And the huge body of political science literature surrounding it?
10.24.2005 4:00pm
Robert Lutton:
Didn't we conclusively settle this question in the Gore case back in 2000?
10.24.2005 6:03pm
Defending the Indefensible:
Subzero, I think you're onto something. The "right" (as represented by the current administration and its supporters) has adopted the positivist, interventionist role which previously had been the province of the "left." By the same token, libertarians (who have mostly been perceived as on the "right") have been shifting their support more to the "left."

What this really says is something quite important that few political activist types seem to get. The party in power tends always to be the party of state authority, and the party out of power tends to be the party of liberty -- only until they are returned to power, however.
10.24.2005 8:58pm