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Whelan on Miles/Sunstein:

In today's Los Angeles Times, Ed Whelan critiques the Miles/Sunstein study examining "judicial activism" on the Supreme Court. First, Whelan objects to focusing on review of agency decisions, as opposed to rulings on the constitutionality of state or federal statutes, because only in the latter case is the result of a court decision effectively immune from revision through the democratic process (or even by additional administrative action). Whelan also thinks there are methodological probems with the Miles/Sunstein analysis:

They classify rulings as "restrained" or "activist" without regard to any qualitatitive assessment of whether the ruling is correct. They implicitly presume that the work product of federal bureaucrats is politically neutral. . . . If an agency shows a bias in a particular direction, a neutral judge's decisions overruling that agency's actions would of course show a pattern in the opposite direction. Thus, if federal agencies, captured by career bureaucrats, are prone to err in a liberal direction, the "Partisan Voting Award" that Miles and Sunstein would confer on Justice Thomas instead belongs to the agencies.

Miles' and Sunstein's statistics are also skewed by the fact that they cover the period from 1989 through 2005. Justices Ginsburg and Breyer were not on the court in the early years of that period, when the court was reviewing agency decisions from Republican administrations that account for about a third of the total cases. The relative partisanship that Miles and Sunstein find in Ginsburg's and Breyer's votes would surely have been much higher if Miles and Sunstein had used the same set of cases for all justices.

It seems to me that these critiques significantly undermine the force of the Miles/Sunstein analysis.

UPDATE: Patterico offers additional critiques of the Miles/Sunstein analysis here.

Adam J:
Isn't Whelan confusing the two different elements of the study in his first critism? I agree that the lack of neutrality of agencies will skew the results for "liberal", "conservative", and "neutral" judges- but what does that have to do with restraint &activism of the judges? Sure, agencies might be consistantly liberal, and Scalia might be "qualitatitively" right to overrule the agency- it doesn't change the fact that he's being "activist".
10.24.2007 5:38pm
SJE:
While these critiques are valid, I think that it is better that Mile/Sunstein NOT engage in assesments of the judicial merits of the cases. That is, merely reporting the results of their analysis is important scholarship by itself.

The next step (already started), is to determine what the results mean. For example, if you argue that the "judicial activism" of the conservatives on the court represents the liberalism of the agencies, how many agency decisions were those of Republican vs Democratic administrations.
10.24.2007 5:42pm
Dan Simon (mail) (www):
Whelan objects to focusing on review of agency decisions, as opposed to rulings on the constitutionality of state or federal statutes, because only in the latter case is the result of a court decision effectively immune from revision through the democratic process (or even by additional administrative action).

More precisely, when a Supreme Court justice votes to overturn an executive branch decision, citing language in a relevant statute, the justice may in fact be exerting his or her judicial power to override the elected branches of government--or he or she may simply be defending the prerogatives of one elected branch (the legislature) against encroachment by another (an executive failing to accede to the legislature's expressed intentions).

It's only when a justice votes to overturn a statute on Constitutional grounds--after it has been approved by both elected branches of government--that we can be sure that he or she is trying to use the Supreme Court's powers to thwart the wills of the elected branches.
10.24.2007 6:01pm
Constitutional Crisis (mail):
It certainly looks like the research has caused quite a stir around these parts. Perhaps the ladies doth protest too much.

Is it possible that Miles/Sunstein are shining some light on one of the federalis' shibboleths, that liberal judges are overturning the democratic will of the people?
10.24.2007 6:02pm
frankcross (mail):
The first criticism is Ilya's but difficult to sustain. First, as I noted, cases do not reach the Court randomly, which it presumes. The justices select the cases. Second, the comparison is among the justices. So if Thomas was unbiased, it would mean that Rehnquist and Scalia had a liberal bias. That doesn't seem very likely. Absent any neutral standard for "correctness," this is about the best you can do in trying to measure it.

The second criticism potentially has more validity. It's best to use the same set of cases. However, the "would surely" comment is pretty bogus. That's assuming the conclusion of the study that is supposed to be a test.

These empirical studies are far from perfect, but they are an improvement on the subjective ideological analyses, which just show the bias of the commenter. Which is one reason why the ideologues hate them. They are harder to manipulate to reach the results you want to reach.
10.24.2007 6:15pm
TerrencePhilip:
Many criminal procedural and other constitutional decisions are not reviewing agency decisions, or even invalidating statutes, but engaging in federal common law-making. The landmark cases in these fields (Miranda, Terry, Roe (which DID invalidate statutes), the death-is-different cases) are classic examples of what has long been decried as "activism." Now, this may or may not be right; but using a self-selected definition of "activism," via an analysis of nothing but (presumably correct/neutral?) administrative agency decisions, to "demonstrate" who the real "activists" are, sounds pretty weak.
10.24.2007 6:45pm
Elliot Reed:
They classify rulings as "restrained" or "activist" without regard to any qualitatitive assessment of whether the ruling is correct.
Indeed, but such a methodology would do nothing more than replicate the researcher's own biases, making "activism" functionally equivalent to "decisions I disagree with". Which, of course, is what conservative critics of "judicial activism" mean by it anyway.
10.24.2007 6:46pm
eric (mail):
I think terrancephillip is correct here. The trick is to define the term activism in a way that will support your contention that conservatives are more activist than liberals. This serves no useful purpose other than a political weapon.

If I defined a home run as running to home plate, than suddenly changes the names of the home run leaders.
10.24.2007 6:56pm
U.Va. 3L:
Whelan writes:

Thus, if federal agencies, captured by career bureaucrats, are prone to err in a liberal direction

But why should we assume that agencies are captured by bureaucrats? I'm but a lowly law student with one semester of admin law, but isn't another side of capture theory that interest groups who deal with agencies on a daily basis might capture them as well? Certainly, that accusation has been made against many agencies under the current administration, though I'm not sure if it holds water.
10.24.2007 7:02pm
JH:
Assuming Miles'/Sunstein's categorizations of "conservative" and "liberal" is accurate, I don't think Whelan's point defending Thomas is persuasive. He still seems to be overriding liberal decisions but not conservative ones.

It is absolutely true though that you can't rebut conservative legal arguments just by looking at admin law. That's just silly, as Whelan demonstrates.
10.24.2007 7:16pm
PLR:
While these critiques are valid, I think that it is better that Mile/Sunstein NOT engage in assesments of the judicial merits of the cases. That is, merely reporting the results of their analysis is important scholarship by itself.

Agreed.
10.24.2007 7:17pm
New Pseudonym (mail):
I like what Dan Simon said, but I wonder if it would really make a difference in the result of the analysis.
10.24.2007 7:28pm
Cornellian (mail):
It's only when a justice votes to overturn a statute on Constitutional grounds--after it has been approved by both elected branches of government--that we can be sure that he or she is trying to use the Supreme Court's powers to thwart the wills of the elected branches.

Isn't the Constitution designed to "thwart the wills of the elected branches?" There's nothing in the First Amendement, for example, that says speech is protected unless Congress votes otherwise. There's nothing in the Constitution that says the President is Commander in Chief unless the Congress votes otherwise. Isn't it as "activist" to refrain from declaring a statute unconstitutional that clearly violates the Constitution as it is to declare a statute unconstitutional that clearly doesn't violate the Constitution?
10.24.2007 7:40pm
Cornellian (mail):
They classify rulings as "restrained" or "activist" without regard to any qualitatitive assessment of whether the ruling is correct.

Isn't that the point of the exercise? If one is going to make a serious attempt to provide a meaningful definition of "judicial activism" as it applies to agency action, isn't that going to have to be independent of whether the agency action is correct, lest "judicial activism" be reduced to nothing more than "I think the decision was wrong?"
10.24.2007 7:42pm
Pluribus (mail):
The inability of the contributors to this board to agree on a definition of activitism shows that the label is pretty useless as applied to judicial decisions, except as a pejorative. About as useless, I think as conservative and liberal when applied to constitutional issues. We really should try to get beyond labels.
10.24.2007 8:20pm
frankcross (mail):
There's a hell of a book coming out on this topic. But still a good year off. Be patient
10.24.2007 8:26pm
JOe:
I work in the area of tax law - Congress will write a statute, pres will sign, then the treasury department will write regulations. Most of the regulation have a slight to very slight bias toward the government (not complaining, just the natue of the beast). Periodically a regulation will be written which exceeds or goes beyond the language in the statute, and SCOTUS eventually hears the case on the issue and as such will overturn the regulation as being inconsistent with the statute. Is that activism to state that the regulation is inconsistent with the statute?

The point is that is that it is difficult to assign labels such as activist or restraint based on ruling for or against an agency action with out some sort of analyis as to whether the decision was correct. - but does the analysis of the correctness of the decision also enter some additional bias.

Based on the above - is the real point obscure the meaning of activist or restraint such that the term has no meaning?
10.24.2007 9:34pm
Dan Simon (mail) (www):
I like what Dan Simon said,

Well, who wouldn't? :^)

but I wonder if it would really make a difference in the result of the analysis.

I have no idea, but a simple count of votes to declare duly enacted laws unconstitutional shouldn't be hard to produce. I, for one, would love to see the results.

Isn't the Constitution designed to "thwart the wills of the elected branches?"

Well, unless you're an "intent originalist" (and I'm not), you don't really care what the Constitution was "designed" to do. As a judicial minimalist, I believe that the Constitution should be viewed as a description of the process by which laws are made, and Constitutional restrictions on laws as narrow protections of the democratic process, not as broad protections of vaunted values such as "freedom" or "equality". That's why I'm interested in the number of times Supreme Court justices vote to nullify democratically enacted laws.

I'm aware, of course, that my position is wildly unpopular, and that general suspicion of democracy is extremely widespread. (Democracy seems to be a highly counterintuitive idea.) But at least my definition of "activism" is clear and coherent.
10.24.2007 9:37pm
MarkField (mail):

Isn't the Constitution designed to "thwart the wills of the elected branches?" ... Isn't it as "activist" to refrain from declaring a statute unconstitutional that clearly violates the Constitution as it is to declare a statute unconstitutional that clearly doesn't violate the Constitution?


Yes, of course, to both questions. Just to address Dan Simon's point, the issue is not the Constitution's "intent", it's the inherent effect of ANY written constitution. By definition, any law higher than majority rule thereby restricts majority rule. The Constitution is inherently anti-majoritarian.
10.24.2007 9:59pm
Cornellian (mail):
As a judicial minimalist, I believe that the Constitution should be viewed as a description of the process by which laws are made, and Constitutional restrictions on laws as narrow protections of the democratic process

Broad or narrow, process or value, the Constitution creates a Congress which is empowered to do A, B or C but not D, even if Congress wants to do D and even if D is very popular and even if the current Congressional majority was elected after campaigning on a promise to enact D. Hence the Constitution impedes democracy in that limited sense, presumably on the theory, which makes perfect sense to me, that a 51% percent majority should not always be able to do whatever it wants, and certainly not immediately. Why should a member of the 51% support that? Because issues come and go, and some days you're in the 51% and some days you're in the 49% and sometimes things that seem like a good idea at the time turn out to be not so good after a suitable period of reflection.
10.24.2007 10:08pm
Pluribus (mail):
The Constitution is inherently anti-majoritarian.

Some provisions are, some aren't. The word "majority" pears in the Constitution mopre than 10 times. When the Frst Amendment says that Congress shall make no law abridging the freedom of speech, it is anti-majoritian, because Congress cannot make such a law even by a majority vote. When Article I, Section 5, says that a majority of each house shall constitute a quorum to do business, it is majoritarian, because there is no super majority requirement to do business. When the Twelfth Amendment says that the electoral college shall choose a president by majority vote, it is majoritarian. No supermajority is required, nor can a decision be made by anything less than a majority. Msajorities are limited only when there is a clear and justifiable reason for doing so. Otherwise, the general rule is that the majority decides. I have no problem with this, nor do I think the framers did.
10.24.2007 10:28pm
MarkField (mail):

Some provisions are, some aren't.


No, ANY provision is, by definition, anti-majoritarian in the short term. In a completely majoritarian system, there is only one rule: the majority rules. Thus, the majority could set the majority as a quorum or it could set some other number, greater or less. It could change that rule the next day. Or every day. Because of the Constitutional provision, though, the majority cannot make this decision.

What some rules can do, though, is preserve majority rule in the longer run. That's one effect of the 1st A, as is also true of some of your other examples.
10.24.2007 11:53pm
Richard A. (mail):
Whelan misses the point. A decision is activist if it furthers the liberal notion of positive rights. i.e. such "rights" as the right to housing, education, etc. It is not activist if it adheres to the constitutional concept of rights, i.e. restrictions on government power, such as a putative future decision upholding the right to bear arms.
Any other distinction falls apart under its own weight.
10.25.2007 12:25am
Pluribus (mail):
I wrote:
Some provisions are, some aren't.
Mark Field answered:
No, ANY provision is, by definition, anti-majoritarian in the short term. In a completely majoritarian system, there is only one rule: the majority rules.
Where is it written that the only choices are a constitutional system and a completely majoritarian system? France under Louis XIV had no constitution and it was not majoritarian. "L'etat c'est moi," said Louis, and he made the decisions. The government of the English colonies in America under George III was neither constitutional nor majoritarian. See the Declaration of Independence for details. Without a constitution, it is not the majority who rule, but the strongest. It is the genius of our constitution that it empowers the majority while at the same time it limits it. The one man one vote rule is majoritarian and required by the Constitution, except where the Constitution provides exceptions. To say flatly that the Constitution is anti-majoritarian is to distort its meaning and effect, which is more complex and more ingenious, all at the same time.
10.25.2007 9:30am
Mark Field (mail):

Where is it written that the only choices are a constitutional system and a completely majoritarian system?


That's not written anywhere, of course. I'm simply pointing out the logical consequence of any written constitution, namely, that it prevents the majority (sometimes) from doing what it wants to at that moment in time. In that sense, any constitution, not just ours, is anti-majoritarian in the short term. In the long run, a constitution may very well enhance democracy by providing ground rules necessary for the continued operation of a majoritarian system. I think ours does pretty well at that.
10.25.2007 12:53pm
Pluribus (mail):
I think we agree more than we disagree. The Constitution does severely limit the majority, as you correctly point out. It also limits minorities. If a majority can't pass an ex post facto law, a minority can't either. But I would not say it's either anti-majoritarian or anti-minoritarian (is there such a word?). It limits what the government can do, whether the governments acts at the behest of a majority or a minority. It also establishes broad egalitarian principles (one man, one vote, equal protection, privileges and immunities, etc.) that enhance and protect majority rule.
10.25.2007 3:53pm
Mark Field (mail):

I think we agree more than we disagree.


Agreed. I was only making a narrow (and perhaps pedantic) point in response to a previous post. I agree that the Constitution does a great many things to enhance majority rule in the long run. In fact, I wish it did more.
10.25.2007 4:26pm