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Easterbrook on the supposedly politicized Supreme Court

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Judge Frank Easterbrook, honored at Swarthmore, speaks out (via @andrewgrossman) on the claims that the 5-4 decisions of the Supreme Court reflect a failure of Chief Justice Roberts to avoid politicization of the Court:

We have about a month to go in the Supreme Court's current term. Many 5-4 decisions are impending. The press will bemoan the Justices' inability to agree and assert that the Justices' ideology explain the divisions. Those of you who have encountered the attitudinal model in class will nod sagely. You, and the press, will be wrong.

Suppose the Justices who are usually called "conservative" were to resign tomorrow and be replaced by President Obama. The reconstituted Court still would find lots of cases to be hard. It would grant review of those hard cases and decide many of them five to four. Cases that the Roberts Court finds hard and decides 5-4, this hypothetical Court would find easy and decide 9-0; lawyers would stop presenting those disputes. But they would bring more and more of the disputes that divide the new Court.

To those who specialize in economic analysis of law, the effect is known as selection pressure in litigation. The choices made by lawyers, and the judges themselves, ensure substantial disagreement even when there is no ideological difference among the judges - which also makes it hard to blame politics for the disagreement we actually observe. The rate of disagreement among the Justices has been stable for more than 70 years. The Court had the same rate of dissent in 1945 as in 2005, though in 1945 eight of the nine Justices had been appointed by a single President. Selection pressure is responsible for this stability.

Turn from law to science. Is Pluto a planet? Astronomers answered no by a closely divided vote. Is Einstein's theory of general relativity right, or should it be replaced by modified Newtonian dynamics (MOND)? Should string theory replace the approach known as the standard model? Scientists disagree about these and many other questions. There's no need to resort to ideology or politics to understand disagreement among specialists who tackle a discipline's hardest questions - which is what the Supreme Court does.

Given selection pressure in litigation, the puzzling feature of the judicial system is agreement. There is much more agreement than the attitudinal model - or anyone who has read Wittgenstein and other language skeptics - can explain.

Judges of my court agree in 97 percent of all appeals. The Supreme Court decides about 40 percent of its cases unanimously - and these are the hardest cases in the legal system, which usually reach the Court because judges of other courts were at odds. It isn't just technical disputes that end unanimously. Last January the Court decided Perry v. Perez, a reapportionment case that concerned how many districts in Texas would be drawn to favor Hispanic candidates. All nine Justices rejected the contentions of both the Obama Administration (representing the political Left's perspective) and the State of Texas (espousing the Right's perspective). Both state and national politicians, and editorial writers, had strongly disagreed about what should be done in Perry; the Justices resolved the case unanimously.

Here's another example. Last Monday, the Supreme Court considered whether a child conceived through in vitro fertilization, after the father's death, is entitled to benefits on the father's account under the Social Security program. This question had divided appellate judges. Many articles in the press - the legal press and legal blogs as well as the popular press - depicted the case as an opportunity for the Justices to express their preferences about religious versus scientific views of conception and family status. But the Justices saw it only as a dispute about the meaning of statutory language. The case was resolved unanimously.

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Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.