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October 20, 2007

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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.

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