Cass Sunstein is a top-rank scholar, and I always learn a lot from his work, even when I think he is ultimately wrong. Unfortunately, however, I fear his recent study (coauthored with Thomas Miles) of judicial "activism" in Supreme Court justices' votes on cases reviewing federal regulatory agency decisions doesn't tell us as much about the subject as one might like. There are three major problems: the way they analyze agency decisions, the failure to consider the possibility that there are centrist ideologies as well as "liberal" and "conservative" ones, and their interpretation of Justice Stephen Breyer's record (the justice they claim is the most "restrained").
Essentially, Miles and Sunstein first code each agency decision as "liberal" or "conservative" (e.g. - a decision to reject an environmental group's claim that a regulation isn't broad enough is "conservative"), and then try to determine how "activist" each justice is by seeing how often they vote to overrule agency decisions. Lastly, they measure how ideologically "partisan" the justices are by determining how often each one voted to overrule "conservative" decisions versus "liberal" ones. Justice Kennedy comes out as the most ideologically "neutral" justice because he voted to overrule conservative agency decisions about as often as liberal ones, while Breyer comes out as the most "restrained" (because he was the least likely to vote to overrule agencies overall).
Here are my three reservations about this framework:
I. What about the Distribution of Agency Errors?
When the Supreme Court reviews agency actions, what they are trying to do is determine whether the agency erred in its interpretation of the federal statute that grants it the regulatory authority in question. Miles and Sunstein implicitly assume that agencies are equally likely to err in a conservative direction or a liberal one. Thus, if Justice Thomas votes to overrule liberal decisions far more often than conservative ones, that shows his ideological "partisanship" in a conservative direction. However, if agencies are more likely to err in a liberal direction than a conservative one - then perhaps his voting pattern simply reflects the distribution of agency errors, not Thomas' ideological biases. Maybe Thomas is the only one fully able to set aside his own biases and focus only on the "true" pattern of agency behavior. Miles and Sunstein's approach can't rule this possibility out. And the same goes for Justice Stevens' apparent tendency to overrule conservative decisions far more often than liberal ones; perhaps that's just a reflection of the agencies' pattern of errors (which may tilt more in a conservative direction), not Stevens' biases. I won't go into detail here, but there are many theories of agency behavior that posit that liberal errors are more common than conservative ones or vice versa.
II. What about Centrist Ideologies?
Miles and Sunstein's framework assumes that there are liberal and conservative ideological biases, but doesn't consider the possibility of centrist biases. Thus, Justice Kennedy is seen as ideologically "neutral" because he votes equally often to strike down liberal and conservative agency decisions. But let's assume for a moment that Kennedy is an ideological centrist, and all he cares about is enforcing that ideology against agency decisions that deviate "too much" from his centrist preferences. He's willing to overrule both deviations in a conservative direction and those that go in a liberal one. Commitment to imposing ideological centrism could explain Kennedy's voting record just as readily as ideological "neutrality." I don't myself know which of these explanations is accurate (perhaps neither is). But the Miles-Sunstein methodology can't distinguish between them.
III. The Special Case of Justice Breyer.
Miles and Sunstein praise Justice Breyer as "the champion of modesty and restraint" because he is the least likely to vote to strike down agency actions overall. Perhaps Breyer deserves this praise. However, it's important to remember that Breyer has a strong ideological commitment to regulatory agency autonomy. In various writings, such as his 1993 book Breaking the Vicious Circle, Breyer has argued that regulatory agencies staffed by expert bureaucrats should be given greater autonomy in order to insulate them from what he regards as harmful pressure from the democratic process. He also believes (for similar reasons) that they should to a large extent be insulated from judicial review. Breyer is a leading defender of the "rule of experts" theory of governance - at least when it comes to regulatory policy. This belief is no less an ideological commitment than is a commitment to conservatism, liberalism, or centrism.
Is Breyer's apparent reluctance to overrule regulatory agency actions driven by "modesty and restraint" or by his ideological commitment to governance by expert regulators relatively insulated from outside control? I honestly don't know the answer; quite possibly both factors are at work. Or maybe neither is. But Miles and Sunstein's methodology can't distinguish between the two.
Related Posts (on one page):
- Whelan Rejoinder to Miles/Sunstein:
- How Useful is the Concept of "Judicial Activism"?
- Miles and Sunstein's Response to Their Critics:
- Miles/Sunstein Response to Critics:
- Whelan on Miles/Sunstein:
- Measuring Ideological "Activism" in Supreme Court Justices' Decisions to Overrule Regulatory Agency Actions:
- Which Justice Is Most "Activist"?
I can see this as a theoretical problem, but surely it can't be true that during the same time frame agencies demonstrate a pattern of both liberal and conservative bias. Thus, assuming a constant time frame, one of the following should be true: (a) Thomas is the most partisan; or (b) Stevens is the most partisan.
I seriously doubt that any theory positing this could be coherent, adjusting for time and the relevant administration. The terms "liberal" and "conservative" lack sufficiently well-defined meanings to make such a "study" meaningful.
Reservation II: I don't see how Kennedy's personal motivations affect the numerical analysis. Coding a centrist position would be pretty hard, since virtually all Supreme Court appeals involve two competing positions, not three.
Reservation III: I am pretty sure that the authors are not using "champion of modesty and restraint" in anything close to a literal sense. See also II above re personal motivations..
That is perhaps true. But note that Miles and Sunstein claim that BOTH Stevens and Thomas are highly "partisan." I'm pointing out that, depending on the underlying pattern of agency error, maybe only one of them is.
It's true that there are usually only 2 options (uphold or strike down the agency action), though the Court could also strike down part of the agency's decision and uphold part. But there are more than two possible ideological motivations for making the decision. Miles and Sunstein claim to be analyzing the reasons for the decision.
I seriously doubt that any theory positing this could be coherent, adjusting for time and the relevant administration.
Sure it could. For example, standard public choice theory holds that agencies want to expand the scope of their authority, which implies a bias towards "liberal" decisions in Miles and Sunstein's terminology. By contrast, Ralph Nader and others claim that agencies are systematically captured by business interests - even in Democratic administrations. This implies a stable bias towards "conservative" outcomes.
By the way, if you mean by activism imposing your policy preferences on the Constitution, even if you can't measure it, upholding an error by an agency is as just as activist as striking down a correct action, isn't it?
It's not that I always disagree with Breyer— far from it— but rather that this sort of deference to "experts" is far from the sort of respect for the decisions of private individuals, citizen juries, and the market that "restraint" is supposed to embody.
In other words, shut up and take what your betters dish out, peon. That that is considered a good thing by some professors is scary.
I think your two examples support my point rather than your own.
It's not an ideological commitment at all, any more than "judicial activism" or "originalism" are. It's a meta-political position, regarding how governmental processes should work, not a political position regarding what the outcomes of those processes should be.
But the Breyer example does underline the flaw in the Miles/Sunstein methodology, at least with respect to measuring judicial activism. They define "activism"--quite correctly, in my view--as the vigorous exercise of the Supreme Court's power to override the elected branches of government, replacing those branches' decisions with the Court's. But when a Supreme Court justice votes to overturn an executive branch decision, citing language in a relevant statute, the justice may in fact be exerting his or her judicial power to override the elected branches of government--or he or she may simply be defending the prerogatives of one elected branch (the legislature) against encroachment by another (an executive failing to accede to the legislature's expressed intentions).
It's only when a justice votes to overturn a statute on Constitutional grounds--after it has been approved by both elected branches of government--that we can be sure that he or she is trying to use the Supreme Court's powers to thwart the wills of the elected branches.
Nick
The study implies nothing about agency intent. Though it is interesting to look for effects like liberal decisions from conservative Administrations and vice versa
It depends on what one means by "restraint." If restraint is simply choosing not to overrule an agency for whatever reason, then the reason doesn't matter. If "restraint" is defined as following the law rather than one's ideological preferences or as "modesty" (to use Miles and Sunstein's term), then the motive does matter. "Restraint" that consists of efforts to empower political actors whom you favor is not truly judicial restraint in most ordinary usage senses of the term.
It's not an ideological commitment at all, any more than "judicial activism" or "originalism" are. It's a meta-political position, regarding how governmental processes should work, not a political position regarding what the outcomes of those processes should be.
Much ideology in fact consists of "metapolitical positions" about how government processes should work. Usually such positions are based on a belief that these processes are more likely to produce good outcomes as defined by the ideology in question. Ideology enters into assessments of processes no less than assessments of results.
As you said, Breyer is empowering political actors (that are at least marginally more democratic). Also, Breyer doesn't favor agencies because they create laws that reflect his ideology, he defers to them because they're the experts and he's a mere generalist. I suppose you can argue that this choice is ideology, but under such a broad definition a choice to be deferential itself is ideology- heck under this definition "modesty" is ideology.
On the other hand, if you want to argue that Sunstein is cherry picking, because Breyer's restraint only exists for agencies, but not to the states... that's an argument that I'm open to.
Logically, one would think this is so. But it hasn't been established, at least not on the Supreme Court level. I.e., you would think that federalism would produce results here. But they are pretty weak. The justices tend to vote their political ideologies more than federalism. Of course, they say that in some cases federalism principles aren't really applicable. But those tend, remarkably, to be cases where the ideological implications of the particular case seem contrary to those of the justice. Of course, this is not absolute, but still statistically significant.
If that were so, then every school of constitutional interpretation would be just another ideology--that is, a preference for government processes that follow the constraints defined by the interpreter's construction of the Constitution. Thus every decision by a Supreme Court justice would be inherently ideological, and every Supreme Court justice an ideologue by definition.
Alternatively, we can choose a non-vacuous definition of "ideology", one that excludes preferences for specific governmental processes irrespective of those processes' outcomes.
Yes, ideology does underly all theories of judicial interpretation at some level. After all, there is no completely nonideological theory of such concepts as the rule of law, the authority of the constitutional text, etc. However, a belief in "rule of experts" because that is one's personal opinion about the best way to structure political processes is far less "restrained" than a belief that leaves the formation of political processes up to the text of the Constitution and of statutes enacted by Congress.
Yes, as I noted in my last comment, ideology is a component of every theory of interpretation at some level. However, an ideology such as Breyer's commitment to deference to "expert" agencies is qualitatively different from one that is based on a more general theory of interpretation that applies the same rules to all political actors.
Alternatively, we can choose a non-vacuous definition of "ideology", one that excludes preferences for specific governmental processes irrespective of those processes' outcomes.
There is a big difference between an ideologically based commitment to following the text of statutes and of the Constitution and an ideological commitment to one's own vision of what the best governmental processes are - independent of what the text of the Constitution or statute requires.
If an agency's interpretation of a statute deviates from the meaning enacted by Congress, democracy is (usually) best served by overruling the agency and forcing it to bow to the text of the statute enacted by the legislature.
His method does not privilege decisions of agencies over elected decisions- he's never said that agencies can make decisions that aren't supported by Congress, only that he's not going to put his view of what Congress said ahead of the agencies view of what Congress said.
"If an agency's interpretation of a statute deviates from the meaning enacted by Congress, democracy is (usually) best served by overruling the agency and forcing it to bow to the text of the statute enacted by the legislature."
You're right about this of course... but I don't think you can argue that the court is always doing this when it overrules, it's quite possible the court is the one wrongly interpreting the statute. If the court was already right, then activism would probably be viewed as more of a virtue.
Qualitatively different in what sense? That it fails to conform with your ideological preference for treating all political actors the same?
There is a big difference between an ideologically based commitment to following the text of statutes and of the Constitution and an ideological commitment to one's own vision of what the best governmental processes are - independent of what the text of the Constitution or statute requires.
Yes--you approve of the former, but not the latter. Otherwise, it's all just ideology--right?
One other point on Breyer: his approach does not reinforce democracy, but actually undermines it to the extent that it privileges the decisions of unelected agency bureaucrats over those of elected members of Congress.
I agree completely--but that's my beef with Breyer, judicial minimalist and democracy-lover that I am. Why on earth would you object to his views? Not only is he no more ideological than you are (since all theories of Constitutional interpretation are, to you, inherently ideological)--he's actually just as suspicious as you are of democratic decision-making driven by the preferences of rationally ignorant voters. Based on everything you've said, you should love the guy. Or are you just too much of a results-oriented ideologue to recognize a meta-level kindred spirit when you see one?