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Posted at 10:30 AM ET, 02/ 3/2011

Courts are political, news at 11

By Dylan Matthews


Given all the hubbub over this week's health-care ruling, and subsequent debate over what motivates judges to embrace one reading of the Constitution over another, it's worth noting that there's a pretty solid political science literature on this, one which mainly suggests that judges' politics has a major influence on their rulings.

This idea is hardly new, originating in the early part of the 20th century with the legal realism movement. But social scientists (and computers) have gotten a lot better at crunching numbers since then, allowing for a lot of recent quantitative research on the subject, an effort some call the "New Legal Realism". The results are roughly what you'd expect. Republican and Democratic appointees rule differently on issues that divide on party lines. Panels with judges of both parties issue more moderate rulings than those with judges of just one party. On some issues, like affirmative action, not even the presence of different-minded colleagues can trump a judge's political convictions in making a ruling.

Studies of the Supreme Court reach a similar conclusion. The political scientists Jeffrey Segal and Harold Spaeth formulated what they call an "attitudinal" model of the court, which holds that the "attitudes" (political beliefs, personal feelings, etc.) of justices are the most important determinants of rulings. The model fits the data quite well, with one study of Segal and Spaeth's showing justices voting their personal views over 90 percent of the time.

So as crass as it sounds, the best way to know how the Supreme Court is going to rule is to figure out what Anthony Kennedy thinks about health-care reform.

Photo credit: Damian Dovarganes/AP

Dylan Matthews is a student at Harvard and a researcher at The Washington Post.

By Dylan Matthews  | February 3, 2011; 10:30 AM ET
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it is one thing to recognize that in areas where judges have discretion, their political views can help predict how they will exercise that discretion. it is something else to just accept that judges will deliberately seek out a result that meets their political views. The latter approach is cynical and corrupt, but it is on display in the two decisions striking down the ACA. District Judges do not have discretion to ignore Supreme Court precedents, but both of these cases rest on interpretations of the necessary and proper clause that are flattly inconsistent with numerous interpretations of the Supreme Court. We should not accept this approach to judicial decision-making.

Posted by: tfbush | February 3, 2011 10:50 AM | Report abuse

I'd bet that Justice Kagan offers a unique and unexpected insight. Given her past role in academic administration, Justice Kagan is keenly aware of the difference between policy developed by the academy and viable public policy.

There is little question that the PPACA is not viable public policy. As the house of cards collapses -- due to continued Congressional action, continued waivers, continued lack of real funds, continued lack of care-givers, and continued lack of public interest and support -- the reasons and nature of the PPACA's final demise become less important. Ultimately, "old Professor Bob's silly notion" will simply be viewed as the folly it has always been.

Throughout the PPACA discussion, we've heard comparisons to the Progressive Eugenics movement of the 1920's... but today, as WaPo reports on the upcoming closure of the last American eugenics camps (eg: Virginia's CVTC), who really looks back on Buck v. Bell and Poe v. CVTC and thinks about the legal logic of the decisions? It's true that Progressives demanded scientifically-proven care (in the form of forced sterilization and forced whole-body irradiation) for those with scientifically-determined lower IQs and it's equally true that Progressive Justices found eugenics practices wholly Constitutional. But do we today really look back and praise the Progressive Democrats for sterilizing thousands of mentally handicapped children? No -- instead, we look back and say how silly the Progressives were to believe in such pseudo-science and laugh, darkly, at their ineptitude, glad only that the past Progressives were unable to achieve the goal they had expressed.

Posted by: rmgregory | February 3, 2011 11:04 AM | Report abuse

"judges' politics has a major influence on their rulings"

Or, judges reasoning has a major influence on their decision making, whether political or as applied to their rulings.

The acid test is whether the Constitution backs them up. Precedent is nice, too, but only to the extent that precedent was supported by the Constitution too. Precedent not supported by Constitution may be convenient when it suits your agenda, but that would be more about politics than about reason.

Posted by: whoisjohngaltcom | February 3, 2011 11:23 AM | Report abuse

rmgregory, progressivism isn't about embracing new ideas or science. It's about advancing a new morality to rationalize, apologize, and legitimize the crude use of government force in the pursuit of preferred outcomes. A big chunk of this is the manipulation of the language to make the desired processes and outcomes "politically correct." Killing unborn children is abhorrent, but language like "choice" and "it's just tissue" make the unspeakable more palatable. You can find this manipulation wherever liberals have an agenda, from the theft covered by "redistribution" to the rationing guaranteed by "universal healthcare."

Posted by: whoisjohngaltcom | February 3, 2011 11:34 AM | Report abuse

I like all the citations in the links. Ezra doesn't usually do that.


Posted by: chrisgaun | February 3, 2011 11:55 AM | Report abuse

Political? Take a look at this from TP:

"Here is how Vinson lifts FRC’s argument:

Vinson’s opinion:

Severability is a doctrine of judicial restraint, and the Supreme Court has applied and reaffirmed that doctrine just this past year: “‘Generally speaking, when confronting a constitutional flaw in a statute, [courts] try to limit the solution to the problem,’ severing any ‘problematic portions while leaving the remainder intact.’” [...]

The question of severability ultimately turns on the nature of the statute at issue. For example, if Congress intended a given statute to be viewed as a bundle of separate legislative enactment or a series of short laws, which for purposes of convenience and efficiency were arranged together in a single legislative scheme, it is presumed that any provision declared unconstitutional can be struck and severed without affecting the remainder of the statute. If, however, the statute is viewed as a carefully-balanced and clockwork-like statutory arrangement comprised of pieces that all work toward one primary legislative goal, and if that goal would be undermined if a central part of the legislation is found to be unconstitutional, then severability is not appropriate. As will be seen, the facts of this case lean heavily toward a finding that the Act is properly viewed as the latter, and not the former.

Family Research Council:

Severability is fundamentally a doctrine of judicial restraint. “Generally speaking, when confronting a constitutional flaw in a statute, we try to limit the solution to the problem.” [...]

The question of severability is a judicial inquiry of two alternatives regarding the nature of a statute. One possibility is that Congress intended a given statute as a bundle of separate legislative embodiments, which for the sake of convenience, avoiding redundancy, and contextual application, are bundled together in a single legislative enactment. This makes a statute a series of short laws, every one of which is designed to stand alone, if needs be. The second possibility is that a given statute embodies a carefully-balanced legislative deal, in which Congress weighs competing policy priorities, and through negotiations and deliberation crafts a package codifying this delicate balance. Congress is thus not voting for separate and discrete provisions. Instead, Congress is voting on a package as a whole, any modification of which could result in the bill failing to achieve passage in Congress. As both Plaintiffs‟ briefs and the following argument shows, the Individual Mandate falls within the latter category, not the former."

Posted by: FoundingMother | February 3, 2011 1:33 PM | Report abuse

whoisjohngalt, you are wrong about mostly everything, but your definition of progressivism is particularly stupid. If you want to argue with straw men, can you do it somewhere else?

Posted by: MosBen | February 3, 2011 1:36 PM | Report abuse

LOL, MosBen, I didn't expect you to agree. Your thoughts are under someone else's control.

Posted by: whoisjohngaltcom | February 3, 2011 1:51 PM | Report abuse

I think it's just slightly more complex than what does Kennedy think about health care reform. The significance of a judge's political leanings to any given decision is going to be directly proportional to how much "play" there is in the constitutional/statutory text and the precedent interpreting it. Where the constitution speaks clearly, judges are obviously going to be highly disinclined to give sway to their own political views. Where the constitution is ambiguous but a long line of precedent has answered the question at issue, a judge is still going to be disinclined but might, if he or she feels strongly, buck precedent. And so on, to the point where if the constitution and precedent have essentially left the field wide open, the judge is going to have maximum freedom to give effect to his or her own leanings.

Now, in my view (and I think most con law scholars), the existing precedent points fairly strongly towards upholding the ACA, although it surely does not foreclose a contrary holding. I would think in that instance the question for someone like Kennedy is not only what does he think of the ACA but how strongly? Are his feelings to strong that he would be willing to issue a ruling that goes against the stronger weight of precedent? Even if he thinks that, writing on a clean slate, he would find Congress to have exceeded its powers, I for one doubt that he feels so strongly about that conclusion that he would vote to strike it down given the existing precedent.

Posted by: gcedwards10 | February 3, 2011 1:55 PM | Report abuse

Of course, the political scientists who study judges are political as well, and their study results presumably reflect their personal views to the same extent.

Posted by: tomtildrum | February 4, 2011 3:49 PM | Report abuse

It was only a matter of time till the pre-smearing and bullying of Justice Kennedy by the administration began. Ever the courtier Klein has jumped in. Of course, it goes without saying, that if Kennedy votes that the mandate or the whole law is unconstitutional, it is because of whim, opinion, or even -- wait for it -- racism on his part. We will now see ever more targeting of this man. His name will constantly be mentioned, and an attempt will be made to shine a bright spotlight upon him, all to intimidate him. He will be singled out, over and over again, as the person who might destroy the presidency. He will be pressured both publicly and privately.

Posted by: truck1 | February 5, 2011 6:59 PM | Report abuse

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