Awards for the Justices

Who are the activists on the Supreme Court? Which justices show the most partisan voting patterns? Such questions are usually answered anecdotally. Thomas Miles and I have tried to approach them more systematically, with some simple statistical methods. We have compiled and analyzed a large number of the justices' votes over an extensive period, and we now have some answers, in the form of awards for Judicial Neutrality and Judicial Restraint -- and less desirable awards for Partisan Voting and Judicial Activism.

Those answers are scheduled to appear in an oped in the Los Angeles Times this Monday. (Guesses are welcome.) A small preview: One member of the current Court has the honor of finishing second for both Judicial Neutrality and Judicial Restraint. That is, one member of the Court upholds conservative decisions (from federal agencies) and liberal decisions (ditto) at about the same rate, and thus fails to show a partisan tilt -- while also showing a high level of restraint, defined for purposes of analysis as a high level of willingness to uphold the decisions of a coordinate branch of government (the executive branch, where we have a lot of data). 

The member of the Court who finishes second for both neutrality and restraint is: Justice David Souter.

Comments

[minderbender]

I would guess that the win goes to Breyer. I bet Stevens also does well.

[DWAnderson]

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?

[Thom Brooks]

Indeed, Souter would be my first guess...although I am looking forward to learning more about how you came up with the ranking.

[frankcross]

DWAnderson, that would be a very legitimate point if the cases reached the court randomly. But they do not, they are affirmatively chosen on certiorari. So you wouldn't expect the agency bias necessarily to show up in USSC cases. I haven't reasoned through exactly how the certiorari process affects the selection problem.

My best guess is that any bias of the sort you identify would come from Court ideology. I.e., a conservative Court wouldn't take a weak conservative agency decision when it would take a weak liberal agency decision. If that were true, the bias would be in the opposite direction that you suggest. But I doubt there is a huge bias either way.

[DWAnderson]

Thom, you potentially raise a good point about the certiorari process. It seems like the failure to consider it (even to explain why it isn't a factor in the analysis) is a flaw of underlying Sunstein piece as well. My intuition is that the certiorari process might affect the raw numbers of reversals and maybe even the distribution of outcomes, but it does not seem like it should affect the rankings of the justices. Further, I think the implicit criticism of my first post still stands, which is that one can't draw conclusions about "partisanship" without knowing more about the source of decisions being evaluated by the court.