By Mike Dorf
A front-page story by Adam Liptak in yesterday's NY Times explains that the current Supreme Court is more conservative than at any time in decades. Although that is the headline and the subject of about half the story, the other half is essentially a summary of the findings of political scientists who study the Court by coding decisions as conservative or liberal. Liptak either quotes or cites all but one of the leading poli sci "attitudinalist" (the exception being Jeff Segal) and though he also mentions criticisms of the attitudinalists' methodology, he notes that these are marginal quibbles and that "the measures are generally accepted in the political science literature." That is a fair characterization--although potentially a misleading one because the attitudinalists' measures and findings are generally not accepted in the legal academic literature. They are generally (though not invariably) ignored by legal academics.
To be sure, that's changing. Barry Friedman, Ted Ruger, Lori Ringhand, and others (including, from time to time, myself) have tried to integrate the political science findings with legal analysis, but most of us when not specifically engaged in that effort--and the vast majority of scholars who write about the work of the Supreme Court from within legal academia--continue to write and to teach as though doctrine and interpretive methodology matter a good deal more than they do.
It's striking to note that Liptak's long article makes no mention of either doctrine--things like the multi-part tests for when a law is invalid under equal protection or free speech--or methodology--things like originalism in its various flavors, living Constitutionalism, pragmatism, etc. The attitudinalists do not contend that these factors matter for nothing, and they would be wrong if they did: Sometimes Justice Ginsburg will vote for a conservative result because she's worried about preserving the doctrine (of broad federal power, say) for other cases; sometimes Justice Scalia will vote for a liberal result because it fits nicely with his methodological commitments. The number crunchers don't accurately predict such votes, but their approach is sufficiently powerful that these surprising results amount to little more than rounding errors.
Here I should register the obligatory caveat that the attitudinalists' models do not show that law is bunk. As a court of last resort with discretionary control over its own docket, the SCOTUS tends to pick cases as to which the conventional legal materials are largely indeterminate (with apologies to Ronald Dworkin and followers who think there really are right answers even in such hard cases). So doctrine could be determinative in most cases and yet we would find that in the SCOTUS it's swamped by ideology precisely because of the selection bias for cases in which doctrine is not outcome-determinative. Something similar could be said about methodology: By themselves, most methodologies produce indeterminate results given the level of abstraction at which they operate; they can be operationalized by doctrine where it's controlling, but again, just about by definition, doctrine isn't controlling in the cases the Court takes.
For observers, this is all quite interesting. For the Justices themselves, it's a challenge to their very existence. As Liptak says, some judges find the attitudinalist project offensive, because they do not admit--not even to themselves--that they are deciding cases based on ideology. And at the level of conscious cognition, they aren't. But the facts don't lie. What should a conscientious judge do?
One answer would be to try to surface ideological biases and control for them. Yet presumably they're already doing that, and it probably wouldn't work. There is evidence that alerting people to their biases does not necessarily cure them of those biases (and can sometimes exacerbate them). In the end, I suspect that other than resigning, the best that a Justice can do is to proceed as before.
It's not all that different from the situation all of us may face: Perhaps all of our thoughts and actions are the product of microscopic physical forces. If so, we "feel" as though we are exercising free will but that is simply an epiphenomenon or illusion. All of the action is taking place at the biochemical level. (Note for purposes of this hypothesis, I am assuming that the inherent quantum unpredictability of the physical world at the truly micro-level doesn't matter, either because the neuronal scale is large enough to wash out any quantum effects or because, contra Penrose, the quantum effects cause changes in the brain but are not caused by them). Suppose you become convinced (by the scientific and philosophical literature) that you lack free will, even though you feel like you have it. I suspect you would go on acting more or less as you were before, because there isn't much of an alternative. Likewise for Justices who become convinced (by the poli sci literature) that despite feeling that they are deciding cases according to legal doctrines and the like, they are (mostly) just voting their values. They should keep trudging on as before--as they surely will.