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New York Times Hypothesis:

Awhile back, around the time of Lawrence and Grutter in particular, the hypothesis was floated--mainly in jest, I assume--that the best predictor of Surpreme Court outcomes in many socially and politically controversial cases was the conventional wisdom of America's political and legal elite. And that this consensus could be captured in an operative variable as being the expressed position of the New York Times Editorial Board (perhaps the Washington Post Editorial Board as well).

The Court's ruling in Kelo got me thinking about this hypothesis again, and so I went back and looked at the New York Times Editorials in three recent cases that came to mind as perhaps the most obvious tests of the hypothesis--Kelo, Raich, and Granholm. Sure enough, traditional legal variables seem to do fairly poorly in predicting the results in those cases, as many have noted. The composition of the majorities and minorities are all over the place with little consistency.

But one variable does hit the mark three out of three times--in each case, the Supreme Court ruling met with the approval of the New York Times Editorial Page. Moreover, Kennedy--who has typically been characterized by critics as being the most susceptible to being swayed by elite opinion--voted with the Times, I mean the majority, in each of the three cases (by my calculation, he was the only one who did so). (Update: As the Comments point out, the liberals Souter, Ginsburg, and Breyer consistently were in the majority in these cases, it was the others that switched around.)

In addition to Lawrence and Grutter, of course, the New York Times variable also accurately predicted the outcome in the Campaign Finance Reform case. I haven't double-checked whether Kennedy voted with the majority in each of those three as well.

To the best of my knowledge, no one has ever taken the "New York Times Hypothesis" seriously enough to test it empirically, but at first glance at least, it looks like it has some pretty good predictive power. If someone has run regressions on this, obviously I would be interested in the results.

I have opened comments. Since I don't read the New York Times and haven't thought about all of the cases that might be thought to be "controversial" during this term (or recent terms), I would be particularly interested in if anyone has any information about other controversial cases and whether the New York Times Hypothesis turned out to be valid in those cases, especially compared to other traditional variables.

I try not to be a pure legal realist, but sometimes...

Ryan J. Cooper:
Is it because Kennedy votes with the Times, or is it that the legal elite (and both political parties) are actually out of step with popular opinion? Not to suggest that the Times is the loadstar of popular political sentiment, but it's closer than the elite.

Maybe the Court's not as counter-majoritarian as the political parties like to suggest.
6.24.2005 2:11pm
frankcross (mail):
Did the Times editorialize before or after the decision? I don't think you can draw too much significance from a later editorial, applauding the decision, which may say more about the NYT than about the Court.
6.24.2005 2:39pm
William Baude (mail) (www):
Moreover, Kennedy--who has typically been characterized by critics as being the most susceptible to being swayed by elite opinion--voted with the Times, I mean the majority, in each of the three cases (by my calculation, he was the only one who did so).

Didn't Souter, Ginsburg, and Breyer also join the majorities in Granholm, Kelo, and Raich? (And Grutter and Lawrence and most of McConnell v. FEC too?)
6.24.2005 3:10pm
Tom Perkins (mail):
I can't remember where i read it, but the NYT evidently used Eminent domain to have the local authorities seize for them the site of their new office bldg. They very much have a dog in the fight.

Yours, Tom Perkins,
molon labe
montani semper liberi
para fides paternae patria
6.24.2005 3:10pm
Tom Perkins (mail):
I can't remember where I read it, but the NYT evidently used Eminent Domain to have the local authorities seize for them the site of their new office bldg. They very much have a dog in the fight.

Yours, Tom Perkins,
molon labe
montani semper liberi
para fides paternae patria
6.24.2005 3:14pm
Hans Bader (mail):
Todd queries how Justice Kennedy voted in Grutter, the decision upholding the University of Michigan Law School's affirmative action policy. He dissented in that case. (Justice O'Connor wrote that decision, upholding a "critical mass" racial quota).

Kennedy and O'Connor take turns voting with the liberals to provide the crucial fifth vote for left-wing outcomes. But Justice O'Connor does it in the most important cases (partial birth abortion, affirmative action, suing your employer or your school for big bucks), while Justice Kennedy, at least until recently, typically did it in less important cases.

If you look just at the NUMBER of cases in which Kennedy and O'Connor voted with the liberal justices, they are similar. But when you weigh the cases by their IMPORTANCE, rather than treating each case as of equal importance, Justice O'Connor, not Justice Kennedy, is the more liberal of the two.
6.24.2005 3:18pm
Tom Perkins (mail):
Sorry, it incorrectly reported my password was wrong. Yours, TDP, ml, msl, &pfpp
6.24.2005 3:26pm
Eddleman:
The Times's editorial-- at least the online version-- disclosed that it recently benefited from the exercise of eminent domain in New York City.

Mr. Zywicki, you should try reading the Times sometime. Whatever your political views, it's by far the best all-around newspaper in America on pretty much every topic except sports. It's a funny thing: I know a lot of liberals who read the Economist, but almost no conservatives who read the Times. Sometimes it's good to get out of the ideological echo chamber and see the world a bit.

And this notion that Times-type liberals represent the "elite" is comical, unless by the "elite" you mean "powerless, highly educated Atlantic-coast intellectuals." If there's an elite today, surely it's the Federalist Society and its fellow travelers, who now make most of the important public policy decisions in American society.
6.24.2005 3:28pm
Duncan Frissell (mail):
Here's a piece on the New York Times land gab:

http://www.greatgridlock.net/NYC/nycadd.html#nytimes

For more info on the deal, seach for "New York Times" on this page:

http://www.greatgridlock.net/NYC/nycnew.html
6.24.2005 3:31pm
Eh Nonymous (mail) (www):
Eddleman: I liked your comment, because it was both informative and cute, but I think there's a specific meaning to "elite":

Here, elite refers to high-class, and self-consciously so. The kind of person who would intentionally say "I beg your pardon?" instead of "What?" when they missed what you just said.

This translates into "elitism" as in exclusive assurance of being right, or at least righter, on matters of taste, public opinion, public policy and so on. There's what people nationwide go to the movies to see, there's what the critics like, and there's what "the elite" likes. The fact that these may, all three, in fact be the same is missed on those who like the distinctions.

Eh Nonymous
Doesn't care much for Jeff Foxworthy, but then, doesn't much care about Al Franken. But, I _do_ sneer at O'Reilly and Coulter and Limbaugh (the Rush one, not the other).
6.24.2005 4:55pm
Matt_in_Memphis:
Eddleman, it's comical that you assume Mr. Zywicki doesn't read the Times.

For the record, my experience is the opposite of the one you report. Conservatives learn about issues, weigh alternatives, familiarize themselves with the 'moving pieces' of a given scenario, expect debate and handle it respectfully. Liberals receive wisdom from on high and stifle debate with mockery as a first resort. I have been forced to give up on one discussion after another in which I have laid out my position clearly, along with the reasons for it, along with a restatement of how I perceive my opponent to view the issue, and been answered with a) the accusation (unfounded and out of the blue) that I listen to too much talk radio or b) an attempt to rely on some authority's opinion without taking the issue apart at all.

For both of us, clearly, there is some observer's bias entering into the situation. Try to remember.
6.24.2005 4:59pm
Anon:
Eddleman, you must have missed the millions of posts by conservatives in the blogosphere reacting to NYTimes stories. Or you must believe that those conservatives react to the stories without reading them.

I, for one, am conservative and I read the NYTimes on-line every day. My great joy, as a non-NYer, was my time in law school, when I could read the print edition every day for free. Someday I hope to enjoy that luxury again.
6.24.2005 5:10pm
david blue (mail) (www):
More about the NY Times editorial today and its past questionable use of eminent domain here. Todd's NY Times hypothesis will be tested on Monday when the Ten Commandments cases come down - the Times wants both displays declared unconstitutional; I, for one, would be stunned if that happens. (FWIW, my prediction is a split result: 10 Commandments OK in Texas, not in Kentucky.)
6.24.2005 5:39pm
david blue (mail) (www):
Uh, Matt_in_Memphis, you may have missed the portion of Todd Zywicki's post in which he says "I don't read the New York Times."
6.24.2005 5:41pm
Michael @ CIR (mail):
I recall that the NY Times editorial board opposed the outcome in U.S. v. Morrison (striking down a section of the Violence Against Women Act), but that the Washington Post editorial board approved. More generally, I suspect that the NY Times editorial board probably has opposed most of the Court's Eleventh Amendment jurisprudence (or at least that part of it that struck down damage claims against the state on Eleventh Amendment grounds). I haven't gone back to research this, but that's my very rough recollection.

And what exactly is wrong with the Times' sports coverage?
6.24.2005 5:58pm
Eddleman (mail):
For the record, my previous post was mostly tongue-in-cheek. I'm of course aware that partisans on both sides of the political spectrum are frequently well informed and open-minded. I merely thought that Mr. Zywicki's post implied a rather contemptuous attitude about the Times, and found that disconcerting in view of his admission that he doesn't read it. My shot at conservatives who refuse to read the Times-- although true in my personal experience-- was intended as a playful tweak, not a serious comment.

As for the sports section, it's awfully thin for such a great sports town, and I think William C. Rhoden is sorely lacking as a lead sports columnist. I suspect the Times is aware that hard-core sports fans are going to read the NYP and the NYDN anyway.
6.24.2005 6:27pm
Greedy Clerk (mail):
Todd, you cannot be serious --- NO ONE was suprised by the outcomes in Granholm, Kelo or Raich. No one. Perhaps, there were some surprises in the actual votes --- Kelo and Raich got more dissenters than anyone thought, which would actually go against your thesis.
6.24.2005 6:34pm
Greedy Clerk (mail):
Sometimes it's good to get out of the ideological echo chamber and see the world a bit.

Well put. Moreover, the claim that the NY Times has a liberal bias, with no support, reflects that the author resides in the echo chamber. Go read Atrios and Daily Kos and they say the same thing about the NY Times that Instapundit says, except they replace "liberal bias" with "conservative bias."

In general, the Times just does its job, which pisses both sides off. In any event, its most blatant mistake in the last five years was a massive mistake which favored the administration. Recall its coverage of the leadup to the War in Iraq? Judith Miller, anyone? WMD, anyone? They were basically regurgitating the adminstration position on WMD, and have never owned up to it, or apologized for the blatant BS being spewed by Ms. Miller about Saddam's WMD "program" (which didn't exist).
6.24.2005 6:41pm
dominick (mail):
In fact, the there is a book out that carefully and meticulously goes through dozens of ways and pages of examples of how the New York Times slants the news towards liberalism. After reading the book I read the paper a lot differently and eventually stopped reading it altogether as a pointless exercise (I don't want to read umpteen pages of opinion journalism - I'd like some news every now and then). The book is Journalistic Fraud: How The New York Times Distorts the News and Why It Can No Longer Be Trusted by Bob Kohn. Those of you who believe that the Times is simply providing objective news reports might give it a look.

And opinions provided by commenters at the Daily Kos should not be taken seriously - unless of course you're looking for the opinions of the fringe left. You're talking about people who think all things short of socialism are "too conservative."
6.24.2005 9:08pm
Greedy Clerk (mail):
Dominick, out of respect for Professor Volokh's admonition that comments stay on topic generally, I do not want to get in a long discussion about this, but suffice it to say that many serious liberal thinkers could write a book going the exact other way. The "liberal media" is a myth intelligently created by those who simply do not want people to believe anything negative about their side. If you follow what is going on the liberal side, you will see that they are creating a counter-myth about the "corporate/conservative media" which includes the NY Times, the Wash Post, etc., so that they can do the same thing. As for your comment about Daily Kos being the "fringe left" -- it is no more fringe on its side than Glenn Reynolds, PowerLine, Captain Ed, etc. In fact, it is probably less so. At least Kos fought for this country, more than can be said about any of those people.
6.24.2005 9:48pm
Zach (mail):
links to a study which attempts to measure partisanship by comparing citation patterns to those of Congressmen. The New York Times ranked as approximately as partisan as Joe Lieberman.
6.25.2005 2:14am
Zach (mail):
Apologies. The URL is here
6.25.2005 2:16am