When judges are going through confirmation hearings, they tend make comments about how they will act as a neutral umpire, not taking sides and following the law. As one representative example, here\’s a comment from the statement of current US Supreme Court Chief Justice John Roberts when he was nominated back in 2005:
I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it’s my job to call balls and strikes, and not to pitch or bat.
I will not here try to peer inside the minds of judges and determine the extent to which such statements are honest or cynical. But I will point out that there is strong evidence that many judicial decisions have a real ideological component, in the sense that it\’s easy to find judges who reach systematically different conclusions, even when they have both promised to follow the rule of law without fear or favor. The Winter 2021 issue of the Journal of Economic Perspectives includes two papers on this topic:
- \”Estimating Judicial Ideology,\” by Adam Bonica and Maya Sen
- \”Can Structural Changes Fix the Supreme Court?,\” by Daniel Hemel
As an example, the liberal position on criminal cases would be the one generally favoring the criminal defendant; in civil rights cases, the liberal position would be the one favoring the rights of minorities or women, while in due process cases, it would be the anti-government side. For economic activity cases—which make up a perhaps surprisingly large share of the Supreme Court’s docket—the liberal position will be the pro-union, anti-business, or pro-consumer stance. For cases involving the exercise of judicial power or issues of federalism, the liberal position would be the one aligned with the exercise of federal power, although this may depend on the specific issues involved. Finally, some decisions are categorized as “indeterminate,” such as a boundary dispute between states.
Another approach looks at the process by which a judge is appointed, which can include both the part of the president doing the appointing, while for federal judges appointed to district or appeals courts, one might also take into account the party of the US senators from that area. A more sophisticated version of this approach seeks to estimate the ideology of the president or the senators involved, thus recognizing that not all Republicans and Democrats are identical. Yet another approach categorized judges according to their political campaign contributions that they made before being appointed, or according to the contributions made by those that the judges choose to be law clerks. Another line of research looks at newspaper editorials about Supreme Court judges during their confirmation hearings, and how they match with other measures like the categories above. There is some recent work using text-based analysis to categorize the ideology of judges according to their use of certain terms.
It\’s perhaps not a surprise that the red and blue lines tend to be separated. But looking back a few decades, you can also see some overlap in the red and blue lines. That overlap has now gone away.
Hemel offers a different kind of reform that he characterizes as a \”thought experiment,\” which is at least useful for expanding the set of policy options. The idea is to break the rule that a judge can only be added to the court when another judge leaves. Hemel writes:
Decoupling could be implemented as follows. Each president would have the opportunity to appoint two justices at the beginning of each term, regardless of how many vacancies have occurred or will occur. Those justices would join the bench at the beginning of the next presidential term. For example, President Trump, upon taking office in January 2017, would have had the opportunity to make two appointments. Those appointees—if confirmed—would receive their commissions in January 2021. The retirement or death of a justice would have no effect on the number of appointments the sitting president could make. Justices would continue to serve for life. Decoupling thus shares some similarities with the norm among university faculties, where senior members enjoy life tenure but the departure of one does not automatically and immediately trigger the addition of a new member.
The decoupling proposal would result in an equal allocation of appointments across presidential terms, though that is not its principal advantage. It would create new opportunities for compromise when the White House and Senate are at daggers drawn: Because appointments would come in pairs, a Democratic president could resolve an impasse with a Republican Senate (or vice versa) by appointing one liberal and one conservative. It would significantly reduce the risk that a substantial number of justices would be subject to the loyalty effect, since no more than two justices would ever be appointees of the sitting president (and only in that president’s second term). The loyalty effect could be eliminated entirely by modifying the plan so that justices receive their commission only after the president who appointed them leaves office (that is, if Trump had been reelected in 2020, none of his appointees would join the court until January 2025).
The plan would likely have a modest effect on the size of the court. The mean tenure of justices who have left the court in the last half-century (since 1970) is 26.4 years, though one might expect tenure to be shorter if appointees had to wait four (or eight) years between confirmation and commission. If justices join the court at a slightly faster rate than they depart, the gradual growth in the court’s size would be tolerable. … A larger court would serve the objective sometimes cited by term-limit proponents of reducing the influence of any individual jurist’s idiosyncrasies over the shape of American law. It would also likely lessen the macabre obsession with the health of individual older justices.
Hemel also argues that these changes could be implemented via ordinary legislation. I don\’t have a well-developed opinion on this kind of proposal, but I had not heard the proposal before, and it seemed as worthy of consideration as some of the better-known ideas.