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.

Our focus was on the justices’ review of the legal interpretations of federal agencies, such as the Environmental Protection Agency, the Occupational Safety and Health Administration, the Federal Communications Commission, and the National Labor Relations Board. These are not the high-profile constitutional cases, but for purposes of doing a statistical analysis of judicial votes, they provide an unusually good data set. The Supreme Court’s leading decision, Chevron USA, Inc. v. NDRC, Inc., 467 U.S. 837 (1984), commands judges to uphold agency interpretations of law, so long as those interpretations are “reasonable.”  With this command, the Court has long insisted that courts should usually respect the decisions of the executive branch -- unless those decisions are plainly inconsistent with law.

This principle makes it possible to test for both judicial neutrality and judicial restraint. Suppose that a justice upholds liberal and conservative interpretations at the same rate. If so, the justice seems pretty neutral. Or suppose that a justice votes in favor of liberal agency interpretations far more often than he votes in favor of conservative agency decisions. If so, the justice seems pretty partisan. We can measure activism and restraint in a similar way. A judge who is unusually willing to uphold agency decisions can be counted as restrained. A judge who is unusually willing to strike down those decisions can be counted as activist. (Partisanship is hard to defend but true, an activist judge might be right; our data do not permit a clear answer to that question.) It is in this light that Kennedy and Breyer win the desirable awards, while Thomas and Scalia get the less desirable ones.

Our analysis  elicited rapid and vociferous criticism from many people, including Edward Whelan in the pages of the L.A. Times itself and from a chorus of skeptics on the internet (http://volokh.com/posts/1193252908.shtml; http://volokh.com/posts/1193253032.shtml).

The critics contend, rightly, that we do not look at the high-profile constitutional cases. But the number of such cases is small, and it isn’t easy to test competing hypotheses about partisanship and restraint. Whelan argues that we fail to examine whether the agency ruling is correct. We agree that an ideal measure of judicial activism would identify the situations in which judges pursue their own ideological goals at the expense of the “correct” legal outcome.  Many studies have demonstrated that ideology influences judicial decision-making in a vast range of legal contexts.  But these studies generally provide no measure of the correctness of the judges’ decisions. The absence of a “correctness metric” shows that it is most difficult to measure correctness in a way that can produce empirical studies of competing hypotheses.

We chose to investigate the justices’ votes in challenges to administrative agencies’ interpretations of law because this context provides an excellent way of testing for both partisanship and activism. The Court’s own decision in the Chevron case strongly suggests that a justice’s willingness to uphold an agency’s interpretation of should not depend on whether the agency’s decision was liberal or conservative. We think that our approach is an innovation over the existing academic literature, and we know that it is a vast improvement over unsubstantiated, anecdote-driven claims about judicial behavior. 

The critics allege that the design of our study is flawed because the distinctive context of agency decisions makes it more likely that conservative judges will appear activist. If the data sets include mostly liberal decisions, then of course a liberal justice will show a higher validation rate than a conservative justice. But this objection is misconceived. In addition to measuring overall rates of agency validation for the justices, we also examined whether each justice was more likely to favor an agency when the agency decision was liberal rather than conservative. We coded the political orientation of each agency decision according to an objective method used by several prior academic studies. Agency decisions challenged by industry were deemed liberal, and those challenged by public interest groups were coded conservative. If the distribution of agency decisions were skewed in a liberal direction, as some critics allege, we should have observed few or even no challenges from public interest groups. Instead, we observed a fair number of such challenges.  Moreover, our study period included many decisions from both the Clinton and the Bush administration, and it would be a big surprise if decisions by the latter were mostly “liberal.”

    When we looked at the data, we observed two key facts. (1) Certain justices’ rates of validation – but not others -- varied widely with their own political leanings. (2) Certain justices’ rates of validation – but not others -- rose when the agency interpretation agreed with their political leanings and fell when it disagreed. These two patterns suggest that certain justices are, according to this imprecise metric, reaching decisions that were likely not correct. Moreover, the patterns strongly suggest that partisanship or ideology influenced certain decisions.  (Justice Thomas is the prize-winner for partisanship, but Justice Stevens is a close second.) Judicial ideology appeared to influence some justices’ votes in the very context in which courts ought to defer to agencies. By our measure, these patterns smack of judicial activism.

    A minor criticism lodged by Mr. Whelan and others is that our conclusions would differ if we limited our analysis to the period after 1994, when Justices Breyer and Ginsburg had joined the Court.  This criticism is unwarranted. When we limit our analysis to the period after 1994, similar patterns emerge.  Justice Breyer remains the most restrained in this period as well; he upheld agency decisions 84% of the time.  Justice Scalia remains the most aggressive user of judicial power; in this period, he validated the agencies only 52% of the time.

With regard to partisanship, defined as political skew in a judge’s voting pattern, our results differ only slightly when we limit attention to the later period. Justice Scalia now edges out Justice Thomas for appearing the most partisan.  When the agency decision was conservative, Justice Scalia voted to validate the agency 93% of the time, and when it was liberal, he voted to validate it only 33% of the time – a swing of 60 percentage points.  Justice Thomas was a close runner-up in this period with a swing of 56 percentage points. Interestingly, Justice Souter was least partisan in this period – with a swing of fewer than 2 percentage points.  Justices Kennedy and Ginsburg were runners up for most neutral; each had swings – but in opposite directions – of 12 percentage points.

    The claim that a judge is a “partisan,” or an “activist,” might be merely an inflammatory way of saying that a judge is “wrong.” But it is useful to develop actual hypotheses about partisanship and activism -- and to see what the evidence reveals. We have used evidence from the justices’ own voting records in a unique area, in which the legal rules are fairly well-defined. Of course we could imagine other hypotheses and other tests. We invite skeptics to muster their own evidence rather than to continue to rely on anecdote, speculation, innuendo, and name-calling.

Comments

[Kimball Corson]

Many of the squeals of protest over the Study may well arise as well from seeing one's favorite current Justice harpooned or worse, derivatively realizing your own political alignment does not accord with your self perceptions.

[DWAnderson]

Perhaps some undetailed aspects of the study address the potential for skewed agency decisonmaking to affect the "partisanhip" results, but how that might be is not clear from the above explanation. The proposition that measuring challenges by industry and interest groups can serve to callibrate whether an agency skews "liberal" or "conservative" in its decisionmaking seems overly simplistic for several reasons: First, what decisions are challenged is itself a function of many factors other than whether the decision was liberal or conservative, e.g. how likely the challenge is to succeed, pleasing constituencies that think the agency should have done more, etc. Liberal agency decisions would be challenged by interest groups as not bing liberal enough in these circumstances. Second, there is no good reason to believe that agencies might not exhibit this tendency in both Republican and Democratic administrations as the inclination to increase agency power is not necessarily linked to party affiliation. Third, industry and interest groups don't necessarily all fit conventional definitions of liberal and conservative. Fourth, return to the world posited in my response to the initial post of the study: (i) agencies have an inclination to overstep the bounds of their authority in a way that favors liberal results, (ii) a justice believes the agency has overstepped its bounds in each case reviewed by the court and consistently rejects interest group challenges that regulations were not extensive enough and upholds industry challenges that the regulations were too extensive, (iii) that justice would be described as a conservative partisan in the parlance of the study, even though that terms does not really capture what is going on, which does not necessarily have anything to do with partisanship. The study seems interesting and the use of the data innovative, but given its limitations, using the term "partisan" seems unfair.

I have reprinted this comment with better formatting here http://thunor.spaces.live.com/blog/cns!71C238B5E0E3724D!356.entry

[Justin Levine]

Your op-ed did indeed cause a bit of a stir – but not because of your conclusions concerning individual Justices. Rather it is because people remain surprised that actual law professors could concoct an analysis based on assumptions and definitions that are patently absurd on their face.

The debate over judicial activism has historically been over CONSTITUTIONAL interpretation – not competing statutory interpretations between courts and administrative agencies. Your wholesale attempt to redefine the terms of the debate strikes many as a cynical attempt to muddy the waters of the debate for your own biased ends.

You write, “The Supreme Court’s leading decision, Chevron USA, Inc. v. NDRC, Inc., 467 U.S. 837 (1984), commands judges to uphold agency interpretations of law, so long as those interpretations are “reasonable.” With this command, the Court has long insisted that courts should usually respect the decisions of the executive branch -- unless those decisions are plainly inconsistent with law.”

This becomes a tautological argument, since you have decided to define “judicial activism” based on the edicts of a judicial decision from the very body which your definition purports to judge. Regardless of how you may chose to define it, any objective definition of “judicial activism” must be based on criteria outside of judicial decisions themselves. I myself would argue that it should be the actual text of the Constitution. You may purpose other or additional criteria, but it is disingenuous to cite the wording of a Supreme Court decision as the basis for what forms “activism” by the same Court. What of those who would fairly argue that allowing for agency interpretations of law violates the separation of powers that are plainly spelled out in the Constitution? Your faulty premise dismisses that notion up front without even attempting to engage it.

But even based on the artificial terms you have grafted on to the discussion, your conclusions come off as silly, inconsequential bean counting – not real analysis. What if you have a renegade administrative agency which decides to consistently purposely craft its interpretations in such a way as to consciously undermine the law? In that instance, the courts would be forced to overturn the agencies decisions far more so than it would otherwise be inclined to do. Yet under your criteria, it is the Court that would then be labeled “activist”, not the renegade agency.

You try to defect criticism of your focus on agency decision making by stating the following: “The critics allege that the design of our study is flawed because the distinctive context of agency decisions makes it more likely that conservative judges will appear activist. If the data sets include mostly liberal decisions, then of course a liberal justice will show a higher validation rate than a conservative justice. But this objection is misconceived. In addition to measuring overall rates of agency validation for the justices, we also examined whether each justice was more likely to favor an agency when the agency decision was liberal rather than conservative.”

This is simply another obfuscation. The proper criteria, even under your own flawed premise, is not “whether each justice was more likely to favor an agency when the agency decision was liberal rather than conservative”. Based on your premise that the Chevron USA decision should be controlling, the criteria you should have been using should have been whether each justice was more likely to favor an agency when the agency decision was CONSISTENT WITH LAW (regardless of whether or not the agency decision was “liberal” versus “conservative” – whatever that might mean).

But it is quite obvious why you avoid that definition. If the proper criteria in judging administrative law decisions is their “consistency with law”. Then you must also delve into the argument of just what the “law” is. And when you argue what the “law” is, you are forced to start with interpretations of the plain text of the law. And at that point, you are forced to directly engage in the arguments that Scalia-type textualists have crafted regarding “judicial activism”. To even begin to engage the issue on that level would undermine your flawed perceptions of the issue, so you simply chose to ignore it instead.

I have been exposed to some of the most radical law professors on both sides of the legal spectrum who have offered great food for thought on controversial issues of the day. I’m sorry to say that you simply come across as the kind of professors who feel that creating “buzz” within the legal community is more important than serious scholarship – even if that buzz has to be generated from arguments that are ridiculous on their face.

If you want a real substantive debate on this issue, go over to Larry Solumn’s Legal Theory Blog. You will find a far more satisfying discussion of the issue that people of all philosophical stripes can engage in.

[Kay Torre]

This "study" is so glaringly ungrounded and faulty as to be an academic joke. To conclude, or even suggest, that Justice Scalia is "activist" is patently absurd. And to even purport to reach conclusions regarding judicial activism while excluding the justices' votes and opinions on major questions of constitutional and statutory interpretation (where "activism" is more fully on display) nets these academics a wholesale loss of credibility. For a complete and honest assessment of activism, one must look at the justices' various approaches to constitutional interpretation, their votes and opinions on such matters as race and the equal protection clause, Title VII and textual analysis, and first, fourth, and most especially, eighth amendment jurisprudence. These professors occupy a high-profile academic pulpit and have rendered highly publicized verdicts on the individual justices. Their rationale for resting their conclusions entirely on analysis of administrative law and agency litigation was, at best, lame.

[curtisstrong]

Re: All

The fact that there is such a vehement response to this article is, frankly, hilarity at its highest.

Is anyone actually arguing that Chevron should be overruled, or that it is bad law? If so, not one of the justices agree with you. That being the case, it is not such a difficult task to understand why Sunstein/Miles will use this as a launching pad. That is to say, the justices agree with Sunstein/Miles' basic premise: That agency decisions should be deferred to unless they are unreasonable.

How this has gotten so twisted by Justin above is really a bit silly.

That being the premise, then, the justices themselves are arguing about what the "law" is (specifically, what is "reasonable" in light of existing law). What justin asks Sunstein/Miles to do is to basically override whatever outcome the justices decided on, make up their own (biased) idea of how the "law" should be interpreted, and analyze the opinions in light of that conclusion.

Surely we can all see the terrible outcomes of that. Sunstein and Miles could, in that case, simply decide what they want the law to be, and then accuse whoever disagreed with them of being partisan.

Surely you can't seriously be suggesting such a foolish analysis.

Therefore, the debate is logically confined to what is "reasonable." If it so happens that certain judges gravitate toward the "conservative" constructions of agencies, believing those to be the "reasonable" constructions of statutes, then there's a clue of how that judge will vote in the future. Equally true of liberals. Sure, there may be some instances where that test isn't 100% correct, but it's a start.

Moreover, the fact that all of these justices are voting TOGETHER, on the exact same cases, limits the variance in the outcome of the study in circumstance where the agency is "clearly" wrong. If the agencies are clearly wrong/right all the time (something that seems to be implicit in many of your arguments), then the justices should have a near 100% congruence in their voting record.

But they don't, and so the question arises...why not? Could "liberal" or "conservative" interpretations have something to do with it? The huge swings of 60% and 54%, apparently raises no eyebrows with you guys. But it should, unless you're just angry about the labels that Sunstein/Miles use...which, as I said before, would be silly. Do Sunstein/Miles ever say that this is the exclusive list of things the justices take into account? Well, no. Scalia still votes liberal 33% of the time, so there are other factors. No doubt the authors would agree, but, again, this is definitely something worth taking a look at.

Finally, the fact that judicial activism is generally limited to constitutional issues is really beside the point in the end. We're looking for something else to corroborate and/or accompany what people think are driving the constitutional debate. The word, "reasonable," is frighteningly similar (although admittedly not exactly the same) as rational review questions in constitutional invalidation of statutes.

Try not to get yourselves too worked up over this. If you need to, go out and find out what accounts for those 33% of Scalia's "liberal" votes, and we may suddenly get a multi-faceted view of what's going on in the Supreme Court.

In any case, "liberal" and "conservative" concerns seem to be part of the equation.

[Joan A. Conway]

More than happy to catch-up to these comments that I missed last year.

Because Thomas Miles and Cass R. Sunstein chose to investigate the justices' votes in challenges to administrative agencies interpretations of law based on their preferences that the context would provide an excellent way of testing for both partisanship and activism, does not tell us why they had those preferences in the first place. This was a leading premise, like a leading question to test whether or not we were listening to what was being asked of us. The joke is on us and not them to discover the fraudulent premise to steer us from a review perhaps yet formulated to a review wrongly formulated. They were setting their ground work by making us do their work for them. Cagey as professors are, they usually employ devices to get the work done for them by someone else.

With that said I still have problems with the direction the commenters have taken their review inspite of the earnestwhile elimination of Miles' and Sunstein's misleading preference, "because they are worth it."

The law they site, Chevron USA, Inc. v. NDRC, Inc., 467 U.S. 837 (1984), commands judges, assuming they mean Article III judges, to uphold agency interpretations of law, so long as those interpretations are "reasonable" does not address the obvious reasonable to what is plainly consistent with law, or is plainly not constitutional.

There are simply a few really bad laws that agency's interpretation would uphold as reasonable, such as U.S. Department of Education's treasury off-set of social security benefits of the retired, and the disabled to pay for defaulted student loans. Its okay to bail out Bears & Sterns, and provide counseling and money for those affected by the mortgage crisis, but if you can't pay for your old student loans, because you are not favored by the capitalistic system because of age, and/or disability, then its your problem, not that it is not constitutional under Article III.

The EEOC claims it oversteps its authority in order for the plaintiff to challenge its interpretation of a poorly written part of its regulations that causes them to impose harsh penalties on the plaintiff for the agencies negligence in not having the U.S. Department of Justice investigate sex, religion and disability claims under Title VII, not rely upon the wrong agency issuing its Right-To-Sue letter, diverting the investigation by the Justice Department mandatory under statute for judicial relief. The claim then is denied on appeal, and the plaintiff is none the wiser until of course the plaintiff finds a first filer's U.S. Department of Justice's Right-To-Sue Letter in the archives and files another claim against the Defendants and Third Party EEOC for destruction of material evidence among other claims under Americans with Disabilities and Public Employee Act. This uses up years of Plaintiff's life, who usually doesn't have this time to spare.

I have also experienced the EEOC oversteeping its bounds of their authority in a way that favors liberal results, when I sued the Democratic National Committee, Grassroots Campaigns, Inc., Senator John Kerry, etc. The agency used vague regulations to rush the cooling off period and now the matter will have a repeat performance with the agency to make up the time denied it at the agency level. These are not constitutional manuevers because justice delayed is justice denied.

Looking at constitutional interpretation and not competing statutory interpretations between courts and adminstrative agencies does not reflect on recent technological improvements, such as the court's computer systems, the agency's computer system, and the state's computer system. The law has not kept up with technology in too many cases and the law cannot be used to support the agency's decision, because its not there. And in addition, what law is there cannot be used to support the Plaintiff's claims, because it clearly supports the agency's decision. Are we confused yet!

This is a defacto agency, a defacto state, and a defacto court.

So in contributing to the study by Miles and Sunstein inspite of itself, Voltaire-like, "the agency decisions should be deferred to unless they are unreasonable" doesn't cut it.

I suspect you will find it to be reasonable in light of existing law and great harm is still being perpetrated against people. No one will ever know that the agency is really wrong!

The exclusive list of things the justices take into account doesn't usually ask them to look into claims of it being not constitutional. And yes we should be looking for something else to corroborate and/or accompany what people think are driving the challenges and Miles and Sunstein.

The word reasonable is never mentioned to be reasonable to the Executive Oath, Spending Clause, Full Faith and Credit Clause, Ex Post Facto Clause, Appropriation Clause, Separation of Powers Clause, and Interstate Commerce Clause, repugnant to the U.S. Constitition under Article III, Section 2, for people with Federal Standing.

The Article III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court's judgment may benefit others collaterally. A federal court's jurisdiction therefore can be invoked only when the Plaintiff/Appellant herself has suffered "some threatened or actual injury resulting from the putatively illegal action." Foot note 1: The standing question [bears] closes affinity to questions of ripeness - whether the harm asserted has matured sufficiently to warrant judicial intervention - and of mootness - whether the occasion for judicial intervention persists. [Footnote by Justice Powell.] This adds significantly to the body of law, and to the Chevron USA, Inc. v. NDRC, Inc. decision in 1984 coming after Rough & Ready Timber Co. v. U.S., 707 F. 2d 1353 (Fed. Cir. 1983). Does the Plaintiff plead justiciability and has made out a "case or controvery" between the necessary parties in their official capacity and in their personal capacity within the meaning of Art. III. Why should the appellate's rules apply to the Plaintiff under duress and pleading in her self-defense? But the Plaintiff will have to pay for the right in order to get justice because the lower and the appellate court rulings were not harmless beyond a reasonable doubt and reversal is required, based on unlawful force clear error is responsible for Plaintiff's harm. Utmost Good Faith never was written in the bad law, that is a traditional core concern of public policy. It is breached by Congress often in drafting these laws.

A Plaintiff finds themself in an unusual circumstance as a challenger who can obtain judicial review of a law's constitutionality only by breaking the law that has stripped them of their "fundamental rights" as to life, liberty, and property, involving the constitution as a preemptory defense.

The appellate court never suspended Rules, as in disregard to the law and the U.S. Constitition's Article III, Section 2 protection(s).

The Supreme Court will also not suspend its Rules as to what is "reasonable and plainly inconsistent with the law" unless a claim or controversy is pleaded under Article III, Section 2.

So why should Miles' and Sunstein's
review based on preferences be any different. Pleader beware of good intentions. Bloggers beware of contributing to another long-term study of professors' review patterns.