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PaperclipPerfector  4mo ago (text post)   25694 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.

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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