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PaperclipPerfector  3mo ago (text post)   25636 thread views

Culture War Roundup for the week of January 1, 2024

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Statistical Structure of the Supreme Court

Inspired by earlier discussion on The Motte, I decided to statistically investigate the voting patterns of the Supreme Court.

The obvious place to start is by looking at how frequently each justice's opinions aligned with each other's. We can interpret the percent-of-times-disagreed as a measure of how "far apart" justices are. We can then use a variety of approaches to plot this onto a 2d graph (e.g. using sklearn.manifold.MDS)

I found data from back when Breyer was on the Court rather than Jackson. My preferred model results is this graph and fairly consistent with @Walterodim's characterization:

  • Sotomayor as a left outlier
  • Kegan (and Breyer) on the left
  • Kavenaugh, Roberts, and Barrett towards the center
  • Thomas and Alito on the right

Finally, he characterizes Gorsuch as a "Maverick", which is admittedly a little hard to formalize in a 2d projection of a high-dimensional space, and the model just spits him out between Barrett and Thomas.

Nice work!

With regard to Gorsuch, I don't think the things I'm thinking of will show up in a look at aggregated vote-check, but are more about there being a few issues that he's completely off the board relative to other justices. In the end, when there's a binary choice, I think you're modeling him correctly, but his commitment to originalism and idiosyncratic view of it leads to strong takes on Indian Law that wind up aligning him with progressives. Slate's summary here matches my view of him, with the caveat that I would personally agree to their factual claims but put a positive spin on it.

My expectation is that Jackson's jurisprudence will be most similar to Sotomayor's on the current Court, though with the usual caveat that this is a condensed model, and even justices that are close to each other will still come down on opposite sides of some cases. This sort of left-to-right mapping tends to be most predictive in high-profile cases where the issue is graspable by non-lawyers, but more obscure areas can produce lineups that appear to be almost random.

It's also important to note that the most common lineup has not changed--it is still 9-0.

This sort of left-to-right mapping tends to be most predictive in high-profile cases where the issue is graspable by non-lawyers, but more obscure areas can produce lineups that appear to be almost random.

One thing of note here from the perspective of a relatively new court observer (and profound legal naïf) is that it doesn't really take all that long to immerse oneself and understand the different philosophies that result in different breakdowns. Due to some combination of naïveté and cynicism, I often find myself rolling my eyes and thinking that their reasoning is obviously bullshit and that complexity in law and both intentional and fake, but it's not like it actually requires a decade of education to understand what they're getting at if you just read the decisions. If nothing else, SCOTUS does a good job making sure that their writings are intelligible to anyone that's motivated to spend some time reading them.

This is 9-0 think is actually more impressive than it sounds. The SCOTUS only wants to take a case if it needs to clean up some mess from the lower courts. So imagine you are some very high ranking appellate judge, and you make your decision only to find that every judge on the SCOTUS rules against you. You can't pretend that you made some politically controversial decision.

That 2d plot basically looks like a 1d line going from the top left to the bottom right as all the judges seem to effectively fall on it, in that case is the 2nd dimension even needed?

It's existence mostly serves to confirm the validity of the 1d model

Also the shortage of Indian law cases on the docket, given that Gorsuch has a reputation as strongly pro-tribe in a way which you would expect to show up as a second factor if there wasn't a more obvious one.

Unsarcastically, are there really so many Indian law cases ever that you would predict this to be the most useful second axis on any time scale? I would think the principle components would start with the political compass dimensions (economic/social left-right), and "opinion on Indian law cases" would be very far down the list.

I wouldn't go so far as endorsing it as the second axis on a 2D graph, but Indian Law does hold a special and odd place in constitutional jurisprudence, because of its relation to how one views old laws and treaties. With regard to Gorsuch, the link I provided in this post sums up that relation. This blog post from a Stanford Law professor expounds a bit more and also touches on what I consider an important theme in both Indian Law and constitutional questions more broadly - a lot of technicality is bullshit, an excuse to arrive at the conclusion that someone wants:

Indian law is not unique in involving judicial uses of history. But not only is Indian law exceptionally historically focused, it is also different from, for instance, the more familiar fights over originalism. While struggles over constitutional history often concern grand and abstract principles and attract significant attention, Indian law cases are often viewed as minor—Justice Brennan reportedly once referred to them as “chickenshit”—and their outcome likely turns on the very local and specific pasts of a particular reservation, treaty, or centuries-old statute. The indeterminacy of these histories gives judges remarkably wide rein to craft the law as they see fit: “[W]hen it comes to Indian law,” the late Justice Scalia once quipped, “most of the time we’re just making it up.”

Law, in other words, is not determinate, and Indian law is especially malleable. Historians, particularly those working on indigenous pasts, would do well to keep this interpretive uncertainty in mind. More than in most areas of law, their accounts can carry considerable legal weight, not only when historians are explicitly serving as expert witnesses, but also when their monographs and articles are repurposed for unanticipated ends.

Gorsuch tends to really, really not like that aspect of other's reasoning and it shows up a lot in his emphasis on the position that the text says what it says, it's actually entirely clear, and you can't make up different readings because they're more convenient.

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