Research Matters: Geoffrey Stone on “The Behavior of Supreme Court Justices When Their Behavior Counts the Most”

Research Matters is a biweekly feature in which a member of the faculty talks about some of his or her latest work and its impact and relevance to law and society.

Professor Geoffrey Stone wrote “The Behavior of Supreme Court Justices When Their Behavior Counts the Most” for the September/October 2013 issue of the journal Judicature. In the work, Stone examines the voting behavior of Supreme Court justices in the 20 most “important” decisions since 2000 and whether those votes align with individual justices’ ideological preferences.

Q. Why did you write this?

A. I was curious. I was intrigued by the question, what explains the pattern of voting of Supreme Court justices in the most important decisions in recent years? I tried to figure out a simple way of doing this, so I asked several colleagues to tell me what they thought were the most important Supreme Court decisions since 2000. I then selected the 20 with the most “votes” and looked at how the justices voted in these cases. The hypothesis was that justices are most likely to be driven by ideological preferences in the most important cases. In cases that are not so important, they’re more likely to follow the law, so long as there’s law to be followed. But the temptation to stretch to reach the “right result,” based on what they think is the best public policy, is likely to be the greatest when the stakes are the highest. I had a research assistant go through the votes in all these cases and tabulate in each one who voted to uphold the law and who voted to strike down the law.

Q. What did you find?

I found that justices voted in a highly ideologically predictable manner in these cases. The cases cut across a broad range of constitutional questions, including freedom of speech, freedom of religion, search and seizure, equal protection, due process, commerce clause, and the like. What I discovered was that the justices who are generally regarded as “conservative”– Rehnquist, Scalia, Thomas, Roberts, and Alito – voted together 99 percent of the time in these cases. The only vote that departed from this pattern was Chief Justice Roberts’ vote in the Affordable Care Act case, which is no doubt why all the conservatives in the country were so upset with him. I also found that the justices who are thought of as “liberal” – Stevens, Souter, Ginsburg, Breyer, Kagan, and Sotomayor – voted together 97 percent of the time in these cases. Justices Kennedy and O’Connor were the only justices who did not vote in a consistent, invariable pattern. They voted, each independently, roughly two-thirds of the time with the conservative justices and roughly one-third of the time with the liberal justices. This explains and ratifies the perception that O’Connor and Kennedy were the “swing votes” in this era. They were, quite clearly, the ones who ultimately determined the outcomes in these cases.

Q. Is this ideological pattern a problem?

A. One likes to think that judges decide cases according to legal principles, precedents, methodologies, and so on. That would often lead them to reach results different from the ones they would prefer to reach as a matter of their own personal, political ideologies. But what came across in this set of decisions is that the justices pretty consistently voted in ways that tracked their own policy preferences. This is certainly disconcerting.  

Q. What can we do about that?

A. One thing we can do is to make this explicit, which is one of the reasons for writing this piece. The reason it was published in Judicature is because that journal published a set of essays about a book published by Richard Posner, William Landes, and Lee Epstein, about the behavior of federal judges. It is an empirical study of the voting pattern of the federal judges and justices over a long period of time. My piece asked different, though similar, questions. By confining my inquiry to these most important decisions, I was able to highlight a pattern that was evident, but not as dramatic, in their analysis. That’s why I published this piece as part as this collection of essays.

Q. Can these votes be explained outside of ideology?

A. I asked that question in the paper. I found that it was possible to explain the votes of the more liberal justices by identifying a familiar theory of constitutional interpretation, which was first enunciated by Chief Justice Harlan Fiske Stone in 1938 in his famous “footnote 4,” in a case called Carolene Products. He suggested that, in general, when interpreting and applying the Constitution, judges should defer to the elected branches of the government and take a relatively restrained view of their authority. Stone recognized that the central question was when judges should depart from that general presumption and be more aggressive, or more “active,” in reviewing the constitutionality of government action. Stone identified two situations in which it made sense for judges to be more muscular. First, judges should be less deferential, and more skeptical, when a law disadvantages a group that has historically been oppressed or subordinated. Second, judges should be less deferential, and more skeptical, when a law poses risk of political capture – that is, when those in authority enact laws that might be designed to perpetuate their own authority. Footnote 4 suggested that courts should not be restrained in evaluating the constitutionality of law in those two circumstances, because in those situation the risk of majoritarian abuse or dysfunction is greatest, and it is in precisely those circumstances that judicial review is most important.

If you accept this theory as stating an appropriate approach to constitutional interpretation, as I do, and if you then examine all 20 of the laws that were at issue in the cases I examined, you would to tend to invalidate almost of the laws that the “liberal” justices struck down, and to uphold almost of laws that the “liberal” justices upheld. A reasonable inference, then, is that these justices are applying somewhat quite akin to the footnote 4 approach to constitutional interpretation. This suggests that they are pretty neutrally applying a principled theory of constitutional law that was proposed 75 years ago, rather than just voting their personal ideological preferences in each case.

On the other hand, when I looked at the votes of the “conservative” justices in these cases and asked whether I could imagine some principled methodology that one could apply in a consistent manner to get the results they reached, I could not conjure any such theory. Originalism certainly does not get you there, nor does a commitment to judicial restraint. To the best of my knowledge, no judge, lawyer, or scholar has ever articulated a principled approach to constitutional interpretation that would lead to this particular set of 20 votes. I’ve asked several of my conservative friends, “can you come up with such a theory?” Apparently, they can’t, other than to say, “these justices are making sound decisions” – which just happen to coincide with their personal ideological preferences.

Q. Do your conservative friends accuse you of picking on conservatives?

A. It’s a perfectly fair question. And I say, OK, fine, answer the question. And sometimes they don’t even get back to me, because they don’t have a good answer. And sometimes they say, well, it’s a combination of originalism and judicial restraint and precedent, it’s a whole bunch of things. But that’s not very persuasive, because they’re picking and choosing competing theories and explanations on a case-by-case basis in order to justify a set of preferred results. There’s nothing consistent about it. Which leads me at least tentatively to conclude that the pattern of votes of the conservative justices in these 20 cases cannot be explained in any fair-minded, neutral, or principled manner. It is, rather, I suspect, a product of the personal, political, and ideological value judgments of these individual justices, which is, indeed, troubling.

Q. Isn’t it possible the liberal judges are acting out of ideology too, and not in deference to footnote 4?

A. Absolutely. It is possible that the specific judgments of twenty-first century liberal justices just happen coincidentally to track the results you would predict if you neutrally applied the 1938 footnote 4 theory. That seems statistically unlikely, however. Of course, I don’t know what’s going on in the justices’ minds. But it is comforting to me to think there is, in fact, a sensible, principled theory of constitutional intepretation that seems plainly to explain – and justify – their results. So even if they’re being “bad,” they’re somehow, inadvertently, being good.