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

The New York Times’ Tom Edsall aggregates a number of recent scholarly takes on that issue.

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.
REUTERS/Larry Downing

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:

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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.”