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Tracking Supreme Court justices’ rulings: principles of law or politics?

REUTERS/Larry Downing
University of Chicago constitutional law scholar Geoffrey Stone found that many justices break ranks with their usual bloc on many cases, but almost never on the biggest, most important cases.

Following up on the recent McCutcheon v. FEC ruling — in which the U.S. Supreme Court broke along the familiar five conservatives versus four liberals to allow wealthy donors to give more to candidates — Tom Edsall used his blog at The New York Times early this week to return to what he called the “80-year-old debate between those who contend that the Supreme Court decides cases on the basis of abstract principles of law and those who argue that judicial rulings are based primarily on political and economic considerations.”

It’s a long substantive piece in which Edsall aggregates a number of recent scholarly takes on that issue, so don’t attempt it unless you care about that issue. Edsall doesn’t enunciate a big ultimate finding of his own, but it’s obvious that Edsall — who leans left but is relentlessly substantive — and the scholarly community have concluded that — on the biggest, most important, most controversial cases — most of the justices are ruling along ideological-bordering-on-partisan lines. Suffice to say, the headline on the piece is “Supreme Injustice.”

The star whose study takes over the second half of the piece is University of Chicago constitutional law scholar Geoffrey Stone, who first surveyed law professors, asking them identify the 20 most significant Supreme Court decisions since 2000. The ultimate list included “rulings on the Violence Against Women Act; Bush v. Gore; parochial school vouchers; a challenge to a ‘three strikes’ law; affirmative action in higher education; the prohibition of ‘same-sex sodomy;’ the death penalty for minors; the display of the Ten Commandments in a county courthouse; a redevelopment plan affecting property rights; two cases involving Guantánamo detainees; partial birth abortion; integration in public schools; gun regulation; the Affordable Care Act; the federal Defense of Marriage Act; Crawford v. Marion County; Citizens United; and Shelby County v. Holder.”

As far as bloc voting by ideological group:

The five very conservative justices who served on the court from 2000 to 2013 — including four still on the bench, John Roberts, Samuel Alito, Antonin Scalia and Clarence Thomas, and former Chief Justice William Rehnquist — “voted the conservative line in these 20 cases 98.5 percent of the time,” Stone found. The six moderate liberals — including four still on the court, Stephen Breyer, Ruth Ginsburg, Elena Kagan and Sonia Sotomayor, along with former justices John Paul Stevens and David Souter — “voted for the ‘liberal’ policy position 97.5 percent of the time.” Altogether, these liberal and conservative justices took a total of 148 stands and in 145, their positions “tracked the presumed policy preferences of conservative and liberal legislators. Put simply, they voted in what seems to have been an ideologically result-oriented manner 98 percent of the time.”

Stone found that many justices break ranks with their usual bloc on many cases, but almost never on the biggest, most important cases.

Of course, the fact that they tended to vote by familiar blocs doesn’t necessarily reflect bias. It could be that by their judicial philosophy liberal and conservative justices tend to look at things differently. So Stone tested that idea by examining the rationale cited by the two blocs to see whether they sort neatly into those in which the liberals engaged in “judicial activism — overturning precedent or ruling congressional actions unconstitutional (commonly associated with liberalism)” — and those in which conservatives engaged in “judicial restraint (commonly associated with conservatism).”

Stone is just one scholar. And his method surely leaves some room for his own beliefs to express themselves. But in the big conclusion of his study, Stone ruled that while the liberals do seem to be voting their philosophy, the conservatives are voting for their personal policy preferences, which tend to favor the wealthy. The pattern of their decisions cannot, he argued, be explained by either of the two major intellectual themes of conservative legal thinking, judicial restraint and originalism. Wrote Edsall, after interviewing Stone:

“Something is motivating them other than a completely neutral detachment. They chose to be activist in certain types of areas, and strike down law when laws disadvantage the wealthy,” Stone said in my telephone conversation with him. The conservative majority takes “an aggressive, muscular approach” in striking down a key provision of the 1965 Voting Rights Act, but then “suddenly becomes very passive in deferring to the legislature in the voter ID case.”

In his study, Stone concluded that in these cases, the votes of members of the court’s right flank were “determined first-and-foremost by their own personal policy preferences.” The court’s conservatives “no doubt believe that they decide each case as it comes to them, like umpires calling balls and strikes. But given the strikingly ideological pattern of their votes in these cases, and the absence of any plausible theory to explain them, this is simply not credible.”

Comments (12)

  1. Submitted by Paul Brandon on 05/16/2014 - 09:27 am.

    How informed a decision

    does one expect of a ‘C’ student (look it up)?

  2. Submitted by Neal Rovick on 05/16/2014 - 09:53 am.

    An attorney died and found himself in Heaven, but was not at all happy with his accommodations. He complained to Saint Peter, who told him his only course of action was to appeal. The lawyer immediately appealed and was told it would take 3 years to hear his appeal. The attorney protested that this was unconscionable, but to no avail.

    The lawyer was then approached by the devil who told him that he could have the appeal heard within a few days if the lawyer would change the venue to Hell. When the lawyer asked why appeals were heard so much sooner in Hell, he was told “We have all the judges.”

  3. Submitted by Peter Nickitas on 05/16/2014 - 11:39 am.

    Judges and the afterlife

    Cute, but the joke has been recycled so much I saw it in a “waste receptacle” in a Minneapolis park.

    That also does not explain the fact that living appellate judges can foul up the scene very quickly, too.

    Look at Bush v. Gore and death penalty cases that cost innocent people their lives.

    And for millions of people in every country in the world — not just Iraq, Afghanistan, and the U.S., who lost their lives between 9/11/2001 and the present, Bush v. Gore might count as a death penalty case, too.

  4. Submitted by Steve Hoffman on 05/16/2014 - 01:52 pm.


    Clarence Thomas was an attorney for Monsanto for years. Every time a case involving Monsanto has come before the court, instead of recusing himself as would be proper, Thomas has continued his prior careet by voting for the corporation. Without exception. So much for “avoiding even the suggestion of impropriety.”

  5. Submitted by Jon Kingstad on 05/16/2014 - 09:07 pm.

    Not a good example

    Monsanto has only been involved in a couple of cases since Thomas has been a Justice and in the decisions which were decided, his vote has not been what you might call “decisive” since they were not 5-4 decisions. But the point by Mr., Hoffman is still valid in light of Eric’s post.

    Thomas was the author of an opinion in 2001 which he clearly would have known what was at stake for Monsanto his former employer. The case did not involve Monsanto as a party but concerned another plant patentee, Pioneer Hybrid, and the issue of whether plants and plant seeds are patentable under the Patent Act.

    Thomas’s opinion relied entirely on a 1980 opinion, Diamond v. Chakrabarty, a close 5-4 decision which sustained a patent on a genetically engineered bacteria “capable of breaking down crude oil”. The issue in that case was whether a living thing, a “phenomenon of nature” could be the subject of a patent. Long standing precedent hel d that it could not. The case distinguished a 1948 case decision Funk Bros. Seed Co. v. Kalo Inoculant Co. which pretty clearly stated that what we call “genetically modified organisms” could not be patented. That case stated about the patent qualities:

    “Their qualities are the work of nature. Those qualities are of course not patentable. For patents cannot issue for the discovery of the phenomena of nature. See Le Roy v. Tatham, 14 How. 156, 175. The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men. They are manifestations of laws of nature, free to all men and reserved exclusively to none. He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.”

    Thomas’s 2001 opinion never mentions this former decision and the huge policy issues at stake in patenting genetically modified organisms. His opinion is intellectually dishonest in failing to address these concerns. If he had the least scruple or ethics, Thomas would have recused himself in light of his relationship with Monsanto, one of the largest GMO patentees in the world, which has hugely profited by his opinion extending patent protection to dangerous seeds and organisms.

  6. Submitted by Steve Titterud on 05/17/2014 - 10:31 am.

    Supreme Court Justices’ self-recusal

    Recusal is based upon the principle that a judge must be impartial in the administration of justice, having no relationship to the issues at hand which would interfere with that impartiality.

    Whatever the Supreme Court justices may say about impartiality or conflicts of interest, recusal is ELECTIVE.

    An article in Slate answered the question “When do Supreme Court Justices Recuse Themselves ?” – “Whenever they want.”

    There is no compelling legal mechanism which can force a Supreme Court justice to recuse himself (herself) in a case when it is plain as day they should do so.

    When they fail to do so, the confidence of the public in the institution is undermined, to the point where it is viewed as just another corrupt government body. So it is in the best interests of the SCOTUS, and the administration of justice generally, that even when the mere appearance of conflict or impartiality is present, a justice should recuse themselves.

    The political activities of Justice Scalia may be a case in point, although the gatherings he attends are private, so no one reports what actually goes on behind closed doors.

    In the case of Justice Thomas, it’s not just the Monsanto case. He sat on the challenge to the ACA even though his wife advertises herself as a [quote] lobbyist who has “experience and connections” to conservative groups that have an explicit agenda to overturn health care reform — by repeal in Congress or by overturning the law in the courts.[end quote]

    Many no longer view the Supreme Court as a fair abiter of matters of law or equity. These are political animals.

  7. Submitted by Paul Udstrand on 05/18/2014 - 03:46 pm.

    Blame the Democrats

    They could’ve blocked Thomas, Alito, and Roberts, and didn’t. These guys were clearly ideologues as is any “originalist”.

  8. Submitted by Ron Gotzman on 05/18/2014 - 09:12 pm.

    Liberals and principles of law

    I can almost predict the outcome of many Supreme Court decisions (as you can) based on knowing the philosophy of the Judges and how they read the Constitution. My predictions are not based on economic (rich vs. poor) considerations but how one views authorial intent and the discovery of meaning.

    Of course, it may be possible that Supreme Court justices are infected with bias in the same way “high quality journalists” are infected with bias. I am confident that the Justices all realize this danger and try to guard against it.

    The liberal Justices can make the Constitution mean what it never meant. How can “liberal Judges” avoid political or econmic bias when they are constantly inveting their own “principles of law?”

    • Submitted by Paul Brandon on 05/19/2014 - 09:39 am.

      Justices are human

      and therefore subject to bias.
      Either conservative Justices are inhuman (it has been suggested 😉 or they are as subject to bias as their progressive counterparts. If the outcomes are as predictable as you say (at least the high visibility ones — the other 95% break down less politically) than there must be bias on both sides.

      As I’ve pointed out, the ultimate check on biased Justices is impeachment.

  9. Submitted by Jon Lord on 05/21/2014 - 10:16 am.

    These recent

    ‘new people’, the corporations, are rich people. No doubt about it. They (most) are biased ‘people’ and except by ignoring the fact, will favor the wealthy and conservative issues and ideals. Of course it was a biased ruling. (This particular ruling is going to be one of extreme contention and convolution going forward.)

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