The University of Chicago Law School Faculty Blog

Adam Cox and Thomas Miles: "Judging the Voting Rights Act"

Over on the Columbia Law Review's online Sidebar, Chicago professors Adam Cox and Thomas Miles are involved in a debate about their January 2008 CLR article "Judging The Voting Rights Act." In that piece, Thomas and Adam write that they provided "the first systematic evidence that judicial ideology and race are closely related to findings of liability in voting rights cases." In so doing, they called into question the core findings of Ellen D. Katz & Anna Baldwin's report, "Documenting Discrimination in Voting:  Judicial Findings Under Section 2 of the Voting Rights Act Since 1982;" Katz and Baldwin responded to Cox and Miles with a reply in Sidebar, and Cox and Miles have responded to that reply with one of their own.

Miles and Sunstein Featured on SCOTUSBlog

Over on SCOTUSBlog, Chicago profs Thomas Miles and Cass Sunstein discuss their article “Do Judges Make Regulatory Policy?: An Empirical Investigation of Chevron” in a two-part SCOTUSBlog "Ask the Author" segment. You can read it here.

Miles and Sunstein Take a Hard Look at the "Hard Look" Doctrine

Thomas Miles and Cass Sunstein, who stirred up some controversy back in October with their op-ed on activism and partisanship on the Supreme Court, have posted a paper on SSRN examining the process by which federal courts review agency decisions for arbitrariness. The abstract is below.

The Real World of Arbitrariness Review

THOMAS J. MILES
University of Chicago - Law School
CASS R. SUNSTEIN
University of Chicago - Law School
University of Chicago Law Review, Forthcoming
U of Chicago Law & Economics, Olin Working Paper No. 368
U of Chicago, Public Law Working Paper No. 188

Abstract:    
The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are “arbitrary” or “capricious.” In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a “hard look” at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that judges' policy preferences affect judicial decisions about whether agency decisions are “arbitrary.” This study, based on an extensive data set, finds that the speculation is correct. Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions. Republican appointees are far more likely to invalidate, as arbitrary, liberal agency decisions than conservative agency decisions. Significant panel effects are also observed. Democratic appointees show especially liberal voting patterns on all-Democratic panels; Republican appointees show especially conservative voting patterns on all-Republican panels. Our central findings do not show that judicial votes are dominated by political considerations, but they do raise grave doubts about the claim that hard look review is operating as a neutral safeguard against the errors and biases of federal agencies. Because judicial policy commitments are playing a large role, there is a strong argument for reducing the role of those commitments, and perhaps for softening hard look review.

      

Thomas Miles and Cass R. Sunstein: Partisanship and Activism on the Supreme Court

(Please note: this essay is also posted at the New Republic Open University blog.)

We have been engaged in a long-term study of judicial voting patterns, and we  recently published an oped in the Los Angeles Times, in which we gave “awards” to Supreme Court justices, based on a statistical study of their votes. The Judicial Neutrality Award went to Justice Anthony Kennedy. The Judicial Restraint award went to Justice Stephen Breyer. The less coveted Partisan Voting Award went to Justice Clarence Thomas. Justice Antonin Scalia received the Judicial Activism Award. 

In various circles, our oped seems to have caused a bit of a stir – especially, we suspect, because Thomas emerges as the most partisan justice, and Scalia as the most activist. (But we did not spare liberal members of the Court; Justice John Paul Stevens was a close second for partisanship.) Our goals here are to offer a more detailed explanation of our method, to provide some general remarks on partisanship and activism on the Supreme Court, and to respond to some criticisms.