The Legacy of Antonin Scalia

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"Shift to the Right" on the Court

... I think the following is helpful.

When one says that the Court "shifts to the right," it would be helpful to know if this is meant as: (a) being taken backward in time; (b) failure to innovate with time (enforce yesterday's solution); (c) watering down, but accepting, yesterday's innovation; or (d) doing the very same thing "the Left" does, only during its turn at play.

It seems to me that when you look at the actual policy effects of the Court's recent high-profile rulings, that the matter is not what we might call "policy domineering." I think it was Mark Graber who correctly noted that the "change on

the ground" is far from broad in scope compared to other government institutions. (Cf. if health care is invalidated -- a huge difference).

As such, one might say the "shift to the Right" is more of an aesthetic one. Just as government in general inherits a "hue" based upon who its president is, so does the Court when it conducts its business with 5-4 rulings. Consider what this "hue" does for presidents. If Bush wants to reform welfare, it looks like conservative devils run amok. But if Clinton does it, it looks more trustworthy.

If Bush wants to tamper with social security, it looks differently than if Clinton or someone else (Democratic) would. So too for Hurricane disasters. Imagine what the exact same oil spill with the exact same response from government would look like if an oil man were president.

And so, we are captivated by this "hue." It colors our account of things. When we see the campaign finance decision, and when we see the gun decision, the psychological color we give to the context makes some people think the sky is falling. Just as people falsely cried over the Morrison decision, which, in truth, was nothing other than conservatives making a generational contribution to their living notion of federalism -- something they have every right to pass along to their progeny.

And so, here we are, with conservatives right now contributing to their vision of law and constitutionalism in a way that is not really policy-inordinate. It's

their turn to "paint." And yet, we're told there is a "shift to the right," as if they are doing something either devilish or novel or selfish or with ulterior

motive. Or inordinate and stealthy. Why isn't the headline something more natural and aesthetic in grammar: "Conservatives making their contribution to what the Court normally does ." "A new generational chapter in American rights logic being added." (I'm trying to get the right idea). "The next installment of

the liberty construct being built by Roberts Court."

You see, to me, the policy consequences of this Court have been overblown by the

Left (which one would expect). And you get this idea that there is a "shift" of some sort, when, in reality, there is the same ordinary sorts of movements the Court quite periodically makes. Imagine seeing a dolphin appear in the ocean. One says, "ooh look, there it is." It's this sort of thing that should be our reaction. Not that we are cheated or that devils rule or that law is false or that we're going back to an old or repressive era (policy wise).

If this were simply understood as a turn at play, we could all focus on whether the turn was aesthetically good or bad. We could simply comment on the art. Place it in the proper context of what others on the Court do.

Regards and thanks.

Dr. Sean Wilson, Esq.Assistant ProfessorWright State UniversityPersonal Website: http://seanwilson.orgSSRN papers: http://ssrn.com/author=596860New Discussion Groups! http://ludwig.squarespace.com/discussionfora/

________________________________From: Kim L. Scheppele To: LAWCOURT-L@TULANE.EDUSent: Fri, July 16, 2010 1:20:18 PMSubject: linda greenhouse on the "kennedy court " - and vote counting

Not sure how many of you have noticed – but Linda Greenhouse now has a blog on the NY Times website at http://opinionator.blogs.nytimes.com/category/linda-greenhouse/ . Her latest post assesses the term just past, and notes that the center of the court has shifted to the right.

I paste it in here because she has some wise things to say not only about the Court in general but about vote-counting in particular, from which we can all benefit:

http://opinionator.blogs.nytimes.com/2010/07/15/rethinking-the-kennedy-court/?pagemode=print

July 15, 2010, 9:39 pm Is the ‘Kennedy Court’ Over?By LINDA GREENHOUSELinda Greenhouse on the Supreme Court and the law.A report in The Daily News last week that Justice Anthony M. Kennedy has no plans to retire left me shaking my head.

Would the next report be that the sun rose in the east this morning? It never even occurred to me to wonder whether Justice Kennedy, who turns 74 next Friday,

might be thinking about retiring, because the answer is so clearly no. The man obviously still loves his job after 22 years, and has no reason to leave it.But thinking about Anthony Kennedy led me to look back over the Supreme Court term that ended last month, and what I found surprised me. A plausible case can be made that it is no longer the “Kennedy court.”

That label has been applied to the Supreme Court for the last few years, including by me. It reflected the fact that on a polarized court, with two blocs

of four justices reliably taking opposite sides in any case with a hint of ideological content, the majority in important cases turned out to be wherever Justice Kennedy was. In the 2006-2007 term, the first full term after Justice Sandra Day O’Connor’s retirement, the court decided 24 cases by votes of 5-to-4,

and Justice Kennedy was in the majority in all 24.But during this past term, Justice Kennedy was in dissent in 5 of the 18 cases decided by five-vote majorities (a figure that amounts to one-quarter of the 73 cases decided with signed opinions, down from 31 percent in the previous term and 40 percent in the term before that.) Three justices to Justice Kennedy’s right, Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr., all cast fewer dissenting votes in those close cases (three, three and four, respectively) and Chief Justice John G. Roberts Jr. was tied with Justice Kennedy at five.Those are admittedly fine distinctions from a small sample, but I would argue that it’s the trend that counts. Justice Kennedy no longer appears to reside at the court’s center of gravity. The center has shifted to the right.(I should note here that while Supreme Court statistics are widely available on the Internet, including from the estimable Scotusblog site, the numbers I use are my own, and may not always agree with others’. There are a surprising number

of judgment calls that go into Supreme Court vote-counting, such as how to count

a concurring opinion that agrees with the particular outcome — as Chief Justice Roberts did in a case striking down life sentences without parole for juvenile offenders convicted of crimes other than murder — while rejecting the rationale that the majority will apply in future cases. After some pondering, I decided to

count the chief justice’s vote in that case, Graham v. Florida, as a dissent, and to consider Justice Kennedy’s majority opinion as a 5-to-4 rather than 6-to-3 win for the court’s liberal bloc. I also count the term’s big patent case, Bilski v. Kappos, as 5- to-4 for its splintered reasoning, although as a technical matter the judgment was 9-to-0.)Of course, what really counts is what Justice Kennedy voted for and against. Of the 18 cases decided by five-member majorities, 12 can be considered at least somewhat ideological. These included Citizens United v. Federal Election Commission, freeing corporations and labor unions to spend money on behalf of candidates in federal elections; Berghuis v. Thompkins, making it easier for the

prosecution to show that a suspect had waived his Miranda rights; and Salazar v.

Buono, enabling the government to keep a Christian cross standing on top of a hill on the Mojave National Preserve.Justice Kennedy wrote the majority opinions in all three of those cases. He voted a total of 10 times with the conservative bloc in the 12 ideological cases. Compare that with the previous term, during which he gave the liberal bloc his vote in 5 of 17 close and ideological cases; during the term before that, 2007-2008, he voted fully half the time in such cases with the liberals. This term, it was only twice.In one of those two cases, he wrote the majority opinion declaring that a sentence of life without parole for a juvenile convicted of a non-homicide offense was categorically unconstitutional as a violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. “Life in prison without the possibility of parole gives no chance for fulfillment outside prison

walls, no chance for reconciliation with society, no hope,” Justice Kennedy wrote.In the second case, he joined Justice Ruth Bader Ginsburg’s majority opinion upholding a public law school’s refusal to grant official status to a student religious group that excludes those who engage in “unrepentant homosexual conduct.” His concurring opinion in that case, Christian Legal Society v. Martinez, was in some respects broader than Justice Ginsburg’s majority opinion.

Justice Kennedy went beyond the somewhat murky facts to give his thoughts about life in law school, where “speech is deemed persuasive based on its substance, not the identity of the speaker.” He declared: “A vibrant dialogue is not possible if students wall themselves off from opposing points of view.”Those two opinions were vintage Anthony Kennedy: he embraces whichever side he is on with full rhetorical force. Much more than Justice O’Connor, whose position at the center of the court fell to him when she left, Justice Kennedy tends to think in broad categories. It has always seemed to me that he divides the world, at least the world of government action — which is what situates a case in a constitutional framework — between the fair and the not-fair.

Affirmative action policies are not fair — he has never voted to uphold one — because, in his view, they victimize those who bear no fault, such as the white applicant with higher test scores. Laws designed to bar gay men and lesbians from achieving their goals through the political process are not fair (he wrote the majority opinion striking down such a measure in a 1996 case, Romer v. Evans) because “central both to the idea of the rule of law and to our own Constitution’s guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance.” The restrictions on corporate speech in the McCain-Feingoldcampaign finance law were not fair because the First Amendment does not abide discrimination among speakers.

In a book titled “Justice Kennedy’s Jurisprudence,” a political scientist, Frank

J. Colucci, wrote last year that Justice Kennedy is animated by an “ideal of liberty“ that “independently considers whether government actions have the effect of preventing an individual from developing his or her distinctive personality or acting according to conscience, demean a person’s standing in the

community, or violate essential elements of human dignity.” That is, I think, a more academically elegant way of saying fair versus not-fair.So the challenge for anyone arguing to Justice Kennedy in the courtroom, or with him as a colleague in the conference room, would seem to be to persuade him

to see your case on the fair (or not-fair, depending) side of the line. Maybe as

a justice Elena Kagan will be able to work her magic as she did with the fractious Harvard Law School faculty. But a junior justice, unlike a law school dean, has no inducements to offer, and Justice Kennedy is a tough man to persuade, as other justices have learned.The notion of a “Kennedy court” rested on the assumption that Justice Kennedy’s vote was in play, at least most of the time, that the boundary separating liberals and conservatives on the court was at least theoretically permeable and

that he was willing to cross it. If that is no longer, or hardly ever, the case,

then whose court is it?Here is a final set of numbers suggesting that the most accurate description of the Supreme Court today is that it is a court securely in the collective hands of its five most conservative members. Chief Justice Roberts and Justices Scalia, Thomas, Alito and Kennedy collectively dissented during the past term a grand total of only 39 times, averaging 7.8 dissents per justice over the course

of a term that produced 73 decisions. The four others — Justices Ginsburg, Stephen G. Breyer, John Paul Stevens and Sonia Sotomayor — dissented 78 times, for an average of 19.5 dissenting votes per justice.

Of course Justice Kennedy isn’t going to retire — not when he is on the winning team.

Aggregates and Votes in Quantitative Ideology Models

(sent to law courts)

Hi Howard.

Good to hear from you again. Haven't heard from you in a long, long time. As I think you know, I am quite aware that Jeff uses an ecological model. About two years ago, I spent a great deal of time comparing ecological models with logit models. So I know what is being said. One of the things I found out about those comparisons is that it is a mistake to think that an ecological model is "something different." It isn't; it just requires much more cautious interpretation. To really interpret it, one needs to "look under the hood," so to speak (before aggregation). In fact, I would disagree with you to the extent you suggest that Jeff's model gets some sort of free pass from conducting logit diagnostics underneath those percentages. Any responsible researcher would do so. In fact, that was one of the central flaws that stung the quantitative ideology research program in the first place -- it committed major methodological sins in the substantive interpretation of its ecological offering. And so I would never be from the school or thought that tried to say that one who analyzed aggregates was doing something unconnected with what those figures are summarizing "underneath it all."

The reason why I had asked Jeff for the latest version of his ecological model is for two reasons. First, if he is truly using the aggregated data from the entire data set as the dependent variable, the distribution of votes will be more leptokurtic. And as I believe was your central point, an ecological model is only analyzing the variance of an index. And before we analyze index variance, we would want to know to what degree values within the index cluster around the mean. Because the more leptokurtic the index, the less we would be substantively impressed with a high account of its variance. If you look at the logit model, this becomes instantly clear. The more the values are non-directional, the more the model goes in the tank. So if Jeff is now trying to offer a high correlation in the variance of a an index that isn't varying as much as before to begin with, someone really needs to catch that -- at least for Paul's sake. (And others).

Now, let me do this much more easily. In my 2006 piece, I did something that I thought was very interesting. I went ahead and took Jeff's world "as is." I took his ecological model on its face and dissected it. What I did was break down what the r-squared in that regression was really reporting, by converting the explained versus residual sum of squares into the equivalent number of votes that accounted for each portion. When I did this, I found that only 12.5% of the total votes cast were "explained" by an ecological regression of a civil liberties INDEX. So the headline would be: model correlates with 60% of index variance, and, in doing so, explains only 12.5% of the votes accounted for by the summaries constituting the index. (This is a good illustration of how analyzing votes is supplementary to aggregates and not something of a different kind).

One more point. Howard, may I ask something of you? Why is it that you continue to say that Jeff has an "attitudinal model" here? You didn't say this in the Law and Society piece from a long, long time ago. I think we need to be clear. Jeff has only a model that has variables that gather something from the external world. What he names it is not germane. Hence, what he has is something in the nature of small-group media-perception scores constructed using a political stereotype. He then regresses that in an ecological model against the summary rates in which justice-approaches to legal issues end up favoring particular claimants. Who those claimants are is determined by what we might call the Harold-Spaeth "client list," which is another construction. I mean, there is no one on the plant who thinks that every single issue the court decides in bankruptcy cases, tax cases, economic cases, etc. etc. etc. are "liberal and conservative" because one side had to win. And so you have a forced stereotype score being regressed against an assigned client-winning profile. This is NOT a model that measures attitudes. I don't think it can even accurately claim to measure journalist attitudes for crying out loud.

So why is it that political scientists talk this way? No other science talks this way. Real science is supposed to accurately describe what is measured in the external world. All you have here is a contrived media perception score regressed against a constructed claimant-winning profile. It is not an "attitude model." And it surely isn't "the justice ideology and the votes."

When are political scientists doing this work going to actually adopt basic principles of science, such as rigidly explaining phenomenon under study in the external world?

Howard, as always, regards and thanks. (Please do write me again in the future like you used to in the past).

Sotomayor's Predicted Liberalism Using Newspaper Scores

(sent to Law-courts)

Jeff Segal wrote in response to Paul's Finkelman's mail, "The predictive value is this: for the justices appointed since Warren, the editorial scores correlate at about .8 with the percentage of times the justices vote liberally."
--------------

First, for any given justice, flipping coins will predict that their score will be 50. So the question becomes how well these media-impression workshops that Jeff recreates improves upon this efficacy. This is called Proportional Reduction in Error (PRE). The PRE on the logit models do show improvement upon blind guessing at 50, but several things must be noted:

1. No one guesses in the blind. Whether these scores are worth their labor is a function of what other perception workshops would tell us. I bet that polling empirical scholars would be better than constructing something from editorials. No one who watches the scores would expect anything more than a 60-ish number anyway, especially when you consider what that number really is.

2. The scores only improve blind guessing (at 50) by about 24%. But if you take away the extremely- directional justices -- the ones no longer on the Court -- the number is 9%. (Subtracted: Rehnquist, Brennan, Marshall, Fortas, Douglas and Goldberg).

3. If you consider the whole docket, of course, all bets are off. You have a statistically-insignificant model from 1948-2004. (about 60,000 so-called "votes"). Model is logit. The PRE is terrible anyway.

4. A couple additional things:

People need to ask themselves to what extent the model really indulges metaphysics. Think about it. As a scientist, you know that the media-perception scores are only a form of prognostication. That's what Jeff has done. He's turned their content into a prediction for either a justice's state of mind or his or her work consequences for criminal-plus claimants.

But if journalists really knew this, the story would be one of clairvoyance or perhaps conspiracy (like insider trading). There is nothing in those editorials different from what, say, informed list members might believe about these things. If Jimmy the Greek predicted numbers well for six weeks in a row, would you go off and say that science was the cause, or that metaphysics (or corruption) was? I think luck would be the real cause. My point is there is nothing special about journalists feelings in this respect. Many of us could do better than a coin flip. There is no need to make either metaphysics or science out of this.

One last point. If Jeff's measures have any significance to anything, it probably is similar to the correlation that young children have in picking presidential elections. That's what it reminds me of. But there, what we say is that this is "carrier evidence." That it shows image perception at some base level of psychology. Here the mistake is not to ask the same question: why is it that a small media-perception work group constructed during the confirmation ritual has any relationship whatsoever to a yes-no tally of claimants winning in criminal-plus cases? The answer really only lies in this:

1. The 6 to 8 extreme justices that drive the results
2. It's an easy game. Pick from 35 to 45 for republicans; 55 to 65 for Democrats - and you'll do fine.

And, if you can find some sort of naturally-occurring process that generates numbers like this -- like media perceptions of a president's pick -- now you have something really neat. It makes the whole thing look automated.

Regards and thanks.

(P.S. -- Paul, see my paper if you want a technical overview of Jeff's model. It is on SSRN, below my signature)

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://seanwilson.org/wittgenstein.discussion.html

Sotomayor and "Measurement Error"

(sent to Law Courts re: the problems with arguments that "attitudinal scholars" make about their quantitative models)

... just a few points on measurement error. (I had thought these ideas had finally left the discipline).

First, the only segment of the docket being talked about here are what these people call "civil liberties cases," which is roughly 1/2 of the Court's workload in the data set. When you look at this from 1948-2004, the breakdown of this HALF of the set is: criminal cases (40%); civil rights (30%), First Amendment (16%), Due Process (8%), Privacy (2%) , and Attorneys (2%). So, for simplicity, let's call this the "criminal-plus rights claimants."

When Jeff speaks of "measurement error," what he means is that the media-impression scores for any given justice are disappointing to him when looking at the overall tendency of a justice's craft to have favored criminal-plus rights claimants. Apparently, what he would like is for his media-impression workshops to be able to really nail the rate at which criminal-plus rights claimants win their cases.

There are several obvious problems here:

1. the stuff in the media editorials (that Jeff codes) are not confined to or centered around issues in criminal law and civil rights (70% of the docket concern). And when they are, it is usually just a discreet, hot-button thing. Hence, the content of the one measure has nothing to do with the issues justices actually end up considering.

2. Also, the coding philosophy used here is confused. It indulges the idea of political values existing as exemplar issues in American political psychology, stuffed into one-dimensional space. (Guns, butter, taxes, abortion, big-case controversies like firefighters, speeches about presidential power, affirmative action positions, etc.). Anything mentioned along these lines gets you "coded." I think Jeff even codes based upon whether the journalists uses the world "liberal" in the editorial. Let's call this the "stereotype picture."

The problem here is that when justices decide cases before them that involve criminal-plus rights claimants, the issues in the cases very rarely involve "stereotype politics." Many times, the issues are a real snooze and make only a technical point. Or its only a little extension here or a little take away there. And so, you have this disjuncture between the philosophy of "liberal" being conjured on the one hand (the stereotype) and the thing you want to call "liberal" on the other, but in good faith can't. (At least not without playing games with language).

3. What is curious about all of this is that the majority of justices for whom we have data do not have any real affinity for criminal-plus rights claimants one way or the other. Assuming most legal issues are tough, one would expect 40-60 to be the basic range. Of course, it wouldn't be during periods of innovation, where new rights paradigms emerge and then recede into an equilibrium. But even though we have this dynamic history in the data set, the majority of justices are really not that directional.

And it is this that causes the failure in Jeff's model, not "measurement error." Indeed, the only errors truly present in these models are specification errors (see points 1 and 2 above), errors with ecological inference (which I'll get to in a moment), and language games.

Really, if you think about it , Jeff's measures are lucky. He's got more measurement luck in the model than error. He's lucky that he has those 8 or so justices with high propensity to decide issues favoring criminal-plus rights claimants -- and those crazy scores of perfect liberal and conservatism. Without those 100% or 0% scores coming out of those media prejudice workshops that he recreates -- scores that attach themselves to justices with 80-20 propensities for criminal-plus cases -- there would be no model here at all.

In fact, just think about it. Use half the docket. Don't use all the justices. Get lucky on the rights revolution thing. Tell everyone you do better on the first 3 years of service (another cut). Then just cry measurement error for all the rest.

I think its worth noting that Segal-Cover scores are statistically insignificant and otherwise extremely paltry for the entire docket (every decision for which researchers have data). They are also statistically insignificant for discreet years of voting. I think one was in the early 1990s (I wrote a paper mentioning it). Also, if you take away those justices who are around the 80-20 mark and who are no longer on the Court -- in essence, replicating today's Court -- you don't have anything to speak of.

It isn't measurement error; it is that the whole idea is faulty.
Regards and thanks.

Dr. Sean Wilson, Esq.
Assistant Professor
Wright State University
Redesigned Website: http://seanwilson.org/
SSRN papers: http://ssrn.com/author=596860
Twitter: http://twitter.com/seanwilsonorg
Facebook: http://www.facebook.com/seanwilsonorg
New Discussion Group: http://seanwilson.org/wittgenstein.discussion.html