Tuesday, June 5, 2012

Judge Easterbrook on ideology at the Supreme Court

Some interesting comments from Judge Frank Easterbrook's commencement speech at Swarthmore:

We have about a month to go in the Supreme Court's current term. Many 5-4 decisions are impending. The press will bemoan the Justices' inability to agree and assert that the Justices' ideology explain the divisions. Those of you who have encountered the attitudinal model in class will nod sagely. You, and the press, will be wrong. 
Suppose the Justices who are usually called "conservative" were to resign tomorrow and be replaced by President Obama. The reconstituted Court still would find lots of cases to be hard. It would grant review of those hard cases and decide many of them five to four. Cases that the Roberts Court finds hard and decides 5-4, this hypothetical Court would find easy and decide 9-0; lawyers would stop presenting those disputes. But they would bring more and more of the disputes that divide the new Court. 
To those who specialize in economic analysis of law, the effect is known as selection pressure in litigation. The choices made by lawyers, and the judges themselves, ensure substantial disagreement even when there is no ideological difference among the judges - which also makes it hard to blame politics for the disagreement we actually observe. The rate of disagreement among the Justices has been stable for more than 70 years.1 The Court had the same rate of dissent in 1945 as in 2005, though in 1945 eight of the nine Justices had been appointed by a single President. Selection pressure is responsible for this stability.


  1. Interesting post. Two initial thoughts: (1) the idea that President Obama's administration represents "the political left" is ridiculous. President Obama's administration is about as centerist as one can get. (2) I couldn't help but notice the lack of a footnote (since the previous sentence is footnoted to an article the judge wrote in 1984)to support the Judge's statemnet that the "The Court had the same rate of dissent in 1945 as in 2005, though in 1945 eight of the nine Justices had been appointed by a single President." Is he saying that the percentage of cases that come out 5-4 has not changed since 1945? Or is he saying that the percentage of Supreme Court cases that have a dissent has not changed since 1945. Those two things are not the same. The two things are not equal and his remarks seem to conflate two differnt things.

  2. Man, there were a lot of typos in my comment. I think the gist of my points is clear, however.

  3. I do not find the statement that Obama represents the "political left" to be ridiculous. I find it to be obviously correct. Obama is the head of the Democratic party. I.e., the leader of the American political left.

    Perhaps you are referring to the "hopelessly unelectable and therefore non-political left"?

    Good catch on the "rate of dissent" language. It does seem like that might be weasel language.

  4. nice posting.. thanks for sharing.


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