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.
Here is a remarkable development. Just twenty-five years ago, there was a strong consensus, among judges and academics, that the Second Amendment did not create an individual right. No federal court had invalidated a restriction on guns on Second Amendment grounds (ever). As recently as 1992, Chief Justice Warren Burger, a conservative Republican appointee, rejected the individual rights view in public.
In a short period, the consensus has shattered. There is a strong possibility that the Supreme Court will accept a view that seemed implausible in the relatively recent past. Here is the question: What has happened?
Consider four possibilities:
1) Truth has finally prevailed. Perhaps new research has shown that the individual rights view is correct. It is true that a large amount of work has been produced in support of that view. Much of it has been funded by private groups with a stake in the issue -- but hardly all of it.
2) Interest groups, above all the NRA, have spurred the change. Perhaps the new view is a reflection of an aggressive social movement, not unlike the movement to ban segregation and to create a right to same-sex marriage. There can be no doubt that a great deal of time, money, and effort have been expended in an effort, by those with a serious stake, to press the individual rights view on politicians and the federal courts.
3) New judicial appointees have shown new receptivity to arguments that are a) originalist and b) associated with the political right. A key contributor to the shift is undoubtedly the presence, on the federal bench, of a number of Reagan and Bush appointees, who are sympathetic to gun rights in particular, and who also have a jurisprudential interest in originalist arguments.
4) Both politics and law have experienced an informational cascade, produced by savvy "Second Amendment entrepreneurs." Many of those involved in law and politics do not have a lot of private knowledge about the Second Amendment. They must rely on what others think. When others seem to think that the individual rights argument is right, they defer -- at least if they trust those others. On this view, the apparently supportive views of "liberal academics" -- including Sanford Levinson, Akhil Amar, Lawrence Tribe -- have been crucial in legitimating the individual rights position.
I tend to think that all of these explanations provide part of the picture, with the (important) qualification that 1) is probably wrong. (This is not the place to defend the qualification. The original understanding of the text is very complex, as shown by historians Saul Cornell and Jack Rakove among others; and longstanding social practices and many court of appeals have refused to accept the individual rights interpretation. In my view, the individual rights view, at least in its present form, is mostly a product of contemporary concerns and preoccupations.) Even if is right, it is not an adequate explanation of what has happened.
If we put 2), 3), and 4) together, we will see that the individual rights interpretation has been the beneficiary, above all, of a stunningly successful social movement. In the domain of constitutional law, there has been nothing even vaguely like it in the past quarter-century.
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.
On October 23, students, faculty, and at least a few alums packed into Room II of the Law School to hear Cass Sunstein deliver our first CBI of the year, "The Second Amendment: The Constitution's Most Mysterious Right." Here's the blurb for the talk:
"What does the Second Amendment mean? The Supreme Court has not told us, and the history seems shrouded in mist. Professor Sunstein will argue that as a matter of history, the Second Amendment probably does not create an individual right, because it was designed to protect state militias. Modern readers have immense difficulty in recovering the original meaning, because our circumstances are radically different from those of the founding. He will also argue, however, that the Court should not reject an individual right, in part because the nation is so polarized. The discussion will have many implications for constitutional interpretation and the role of the Court in political life."
You can listen to the talk here (or in the widget on the sidebar to the right of your screen), or by subscribing to our Faculty Podcast.
(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.
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.
The ever-prolific Cass Sunstein has a new book out from Harvard University Press, Worst-Case Scenarios; he also recently added a paper to SSRN, written with William Meadow of the University of Chicago Children's Hospital, entitled "Causation in Tort: General Populations Vs. Individual Cases." The abstract reads as follows:
To establish causation, a tort plaintiff must show that it is “more probable than not” that the harm would not have occurred if the defendant had followed the relevant standard of care. Statistical evidence, based on aggregate data, is sometimes introduced to show that the defendant's conduct created a statistically significant increase in the likelihood that the harm would occur. But there is a serious problem with the use of such evidence: It does not establish that in the particular case, the injury was more likely than not to have occurred because the defendant behaved negligently. Under existing doctrine, a plaintiff should not be able to establish liability on the basis of a showing of a statistically significant increase in risk. This point has general implications for the use of statistical evidence in tort cases. It also raises complex issues about the relationship between individual cases and general deterrence: Optimal deterrence might be obtained by imposing liability on defendants who engage in certain behavior, even though a failure to engage in such behavior cannot be connected with the plaintiff's harm by reference to the ordinary standards of causation.
Thanks Glenn for that question. Let me begin by discussing the role of government, and then turn to the private sector.
In short, government should impose no mandates on anyone. As you note, Republic.com argued that government might consider certain responses, intended to promote exposure to diverse positions. Fortunately, the discussion was tentative and didn't endorse any of those responses. Unfortunately, those responses would be unjustifiably intrusive, a bit silly, and even unconstitutional. For that reason, I'll omit the details, thank skeptical readers for their convincing objectons to what I suggested, and confirm what you say, which is that Republic.com 2.0 rejects government mandates (and says that they would be unconstitutional).
Any responses should be private. By way of introduction, let's recall a really impressive moment from the most recent election: Senator Rick Santorum's concession speech. Santorum began by praising Bob Casey, saying that he was a fine man and that he would do a fine job for Pennsylvania. Then he specifically asked his supporters to give a round of applause to Casey. Here's the best part: When the applause was tepid, Santorum added, firmly and spontaneously, "Come on, give it up, give him a round of applause!" There was real grace, and charity, in what Santorum did.
For the blogosphere, here are some small ideas. If you're a liberal blogger, you might include some good conservative blogs in your blogroll. If you're a conservative blogger, you might include some good liberal blogs in your blogroll. It might make sense for bloggers to develop an informal norm of reciprocity. If you have a clear ideological position, and find yourself linking only to people who already agree with you, it might be worthwhile to include a few links to people who don't agree with you -- emphasizing that they might be right on a particular question, or at least that their view is reasonable and worth considering.
Orin Kerr, at the Volokh Conspiracy, is a terrific blogger, in part because he seems to me a model on this count. His own views are hard to characterize, but he avoids contempt, and better still, he tries to make the best, rather than the worst, of opposing positions. He doesn't attack people's motivations; he assumes that people who disagree with him are acting in good faith (and that they are unlikely to be making obvious errors, and haven't lost their senses). And with all this, he can be quite funny.
Of course some positions are unreasonable; no one needs to link to those who argue that the attacks of 9/11 were an American conspiracy, or that slavery was, and is, very good. But our topic has been the division between Red States and Blue States, or conservatives and liberals, and it would be pretty amazing if it turned out that one or another side has a monopoly on reasonableness. (Actually it would be amazing if it turned out that political life is sensibly understood in terms of two "sides.") For readers, knowledge of group polarization, and its effects, should be able to provide a degree of inoculation.
We've been discussing some of the risks, but much of your work has emphasized the amazing potential of the blogosphere to aggregate dispersed information, in a way that is likely to produce a lot more knowledge than a world dominated by the mass media. (Cf. Hayek's critique of socialist planning as compared to the price system.) You're right to emphasize that potential, which is only beginning to be realized; it's a key point when considering the state of the blogosphere.
Are you too optimistic? Maybe. Let's consider some data, bearing on the question of Red States vs. Blue States.
1. For many years, the United States has been conducting a remarkable natural experiment, involving the random assignment of judges to three-judge panels. Here's one thing we know. On DDD panels (all-Democratic panels), Democratic appointees show VERY liberal voting patterns in ideologically contested cases -- much more liberal than on DDR panels. On RRR panels (all-Republican panels), Republican appointees show VERY conservative voting patterns -- much more conservative than on RRD panels.
One way to think about this is that if you create what might be considered "Red State" federal panels, you'll get much different votes, from "Red State" judges, than on "Red State/Blue State" panels. The same applies to what might be considered "Blue State" federal panels. A disabled person, challenging certain conduct as discrimination, has a much better chance before DDD than before RRR.
For present purposes, here's the kicker: For both individual Ds and individual Rs, the voting patterns are far more moderate on RRD and DRR panels.
2. A few years ago, I was involved in a little experiment in Colorado. Liberals in Boulder were assembled to discuss climate change, affirmative action, and civil unions for same-sex couples. Conservatives in Colorado Springs were assembled to discuss exactly the same issues. The liberals spoke only with the liberals; the conservatives spoke only with the conservatives.
The most important result of the discussion was to make the liberals more liberal and more extreme on all three issues, and to make the conservatives more conservative and more extreme on all three issues. Another result was significantly to decrease diversity among liberals -- and also among conservatives. (Note: I'm speaking here of the difference between people's anonymous predeliberation statements and their anonymous postdeliberation statements.)
In short, deliberation among like-minded people increased extremism at the same time that it squelched diversity of view.
For the blogosphere, the implications are not obscure. The blogosphere has many "Red State" sites and many "Blue State" sites (often created by polarization entrepreneurs). These sites look like RRR or DDD; they are similar to our Colorado experiment. To that extent, the results should be a) greater extremism and b) less internal diversity. A third likely result is greater contempt for those on "the other side."
True, you're right, exposure to competing views can deepen division (especially if we're called names). True, many people read diverse sites and do not live in echo chambers. True, the blogosphere is creating communities of interest that overlap. True, many bloggers lack any kind of simple ideological orientation.
But some helpful empirical evidence has already been compiled, and even at this early stage, one thing seems true: Numerous people are listening only or mostly to people who already agree with them. If you're too optimistic, that's why.
Hi Glenn! You raise a number of good points and questions, and I'd like to approach our large topic by focussing on your last paragraph and especially your last sentence.
My speculation is this: To the extent that people are using the blogosphere to congregate in groups of like-minded types, they are more likely to be politically active. To the extent that people are hearing lots of different points of view, they are more likely to sit on the sidelines. In short, there is, for many people, a tradeoff between a) exposure to diverse views and b) political participation.
Intuition helps explain the possibility of such a tradeoff. Like-minded people, talking only with each other, get more confident and more extreme. (This is the concern of Republic.com 2.0.) If people are living or communicating in echo chambers, there will ultimately be a kind of Babel effect, in which different groups won't quite understand each other. (Cf. the debate over climate change.)
The bad side of all this includes greater extremism, more anger, and less understanding of one's fellow citizens. The good side is that if you are confident and charged up, you're more likely to be active.
So much for intuition. Diana Mutz' superb 2006 book, Hearing the Other Side: Deliberative Versus Participatory Democracy, offers a lot of evidence, and is full of implications for the blogosphere. If you deliberate with a wide range of people, you are less likely to be engaged in politics (apparently because you conclude that different views are reasonable, and it might not be worth spending your time fighting). If you talk with people who agree with you, you are more likely to get involved. (I bet that Mark Penn knows this; I'm sure that Karl Rove does. Cf. the success of conservative and liberal groups on law school campuses.)
On the blogosphere, some people operate as polarization entrepreneurs. They attempt to create enclaves of like-minded types, intensifying their antecedent convictions. (I won't name names.) The Army of Davids includes a lot of people who have been energized by polarization enterpreneurs -- and as a result, their judgments may have been badly distorted. But it is worth emphasizing that the same processes that create the distortions help to fuel the participation.
As Mutz emphasizes, this benefit is puchased at a cost: Those who have been polarized are not likely to be tolerant of others, or even comprehending, and they might well fail to persuade those who tend to disagree with them. My main point is that to the extent that the blogosphere helps to create information cocoons, it does indeed energize people.
There are obvious questions here about the complex role of two virtues: respect and charity. Any thoughts on any of this? Do we have any disagreements thus far?
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