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Partisanship and Activism on the Supreme Court

November 1, 2007

Cass Sunstein and Thomas Miles have done an empirical study of voting patterns on the Supreme Court and have classified certain justices by their degrees of "activism" and "partisanship." I responded in the comments (and others responded elsewhere) that the study took insufficient account of decision-making by the agencies below and therefore produced an unreliable measure of partisanship. Sunstein and Miles respond to their critics with another post, but the defense of the partisanship results/characterization seems unpersuasive. I reprint the further comment I made here with a little better formatting:

Perhaps some undetailed aspects of the study address the potential for skewed agency decision-making to affect the "partisanship" results, but how that might be is not clear from the above explanation. The proposition that measuring challenges by industry and interest groups can serve to calibrate whether an agency skews "liberal" or "conservative" in its decision-making seems overly simplistic for several reasons:

  • First, what decisions are challenged is itself a function of many factors other than whether the decision was liberal or conservative, e.g. how likely the challenge is to succeed, pleasing constituencies that think the agency should have done more, etc. Liberal agency decisions would be challenged by interest groups as not being liberal enough in these circumstances.
  • Second, there is no good reason to believe that agencies might not exhibit this tendency in both Republican and Democratic administrations as the inclination to increase agency power is not necessarily linked to party affiliation.
  • Third, industry and interest groups don’t necessarily all fit conventional definitions of liberal and conservative.
  • Fourth, return to the world posited in my response to the initial post of the study: (i) agencies have an inclination to overstep the bounds of their authority in a way that favors liberal results, (ii) a justice believes the agency has overstepped its bounds in each case reviewed by the court and consistently rejects interest group challenges that regulations were not extensive enough and upholds industry challenges that the regulations were too extensive, (iii) that justice would be described as a conservative partisan in the parlance of the study, even though that terms does not really capture what is going on, which does not necessarily have anything to do with partisanship.

The study seems interesting and the use of the data innovative, but given its limitations, using the term "partisan" still seems unfair.

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