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A Bad Proposal

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Buffalo Law Review Volume 63 Number 2 Article 7 4-1-2015 A Bad Proposal Edward Whelan Ethics and Public Policy Center Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Statistics and Probability Commons, and the Supreme Court of the United States Commons Recommended Citation Edward Whelan, A Bad Proposal, 63 Buff. L. Rev. 391 (2015). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol63/iss2/7 This Response is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. RESPONSEA Bad ProposalEDWARD WHELANtTodd Pettys's critique' of the Epstein-Parker-Segalstudy2 is devastating, but there is one point that I think hegets wrong. Noting that Epstein, Parker, and Segal "urgeother researchers to join the search for in-group biasesamong judges and justices, both within the free-expressionrealm and beyond," Pettys calls this "a good proposal."3 No.There is no reason to think that the tools of modern politicalscience are capable of generating meaningful insights intowhether in-group bias affects judicial decision-making.First, as Pettys shows, the general enterprise ofidentifying whether a justice would perceive a litigant to bepart of the justice's ideological in-group is fraught withintractable difficulties. What information about the litigantshould the justice be deemed to know? Does the relevantinquiry focus on the perceived ideology of the litigant or onthe perceived ideological valence of the litigant's cause in theparticular case? (Note here the curious claim by Epstein,Parker, and Segal that Pettys is "too focused on thet Edward Whelan is president of the Ethics and Public Policy Center.1. Todd E. Pettys, Free Expression, In-Group Bias, and the Court'sConservatives: A Critique of the Epstein-Parker-Segal Study, 63 BUFF. L. REV. 1(2015).2. Lee Epstein, Christopher M. Parker & Jeffrey A. Segal, Do Justices Defendthe Speech They Hate? In-Group Bias, Opportunism, and the First Amendment,available at http://epstein.wustl.edu/research/InGroupBias.pdf (last visited Feb.2, 2015) [hereinafter Epstein et al., In-Group Bias].3. Pettys, supra note 1, at 74-75.4. See generally id.391BUFFALO LAW REVIEWideological characteristics of the speaker rather than thespeech.")5 How sensible is it to assume that all justicesclassified as conservative or as liberal have identicalideological in-groups? Is Justice Breyer's ideological in-groupreally the same as Justice Sotomayor's? Or is JusticeKennedy's the same as Justice Alito's? How can politicalscientists plausibly engage in the psychological projectionthat assignment of ideological in-groups entails? Pettysprofesses himself "skeptical" that this in-group identificationcould "be satisfactorily done. '6 1 would go further, as I do notsee how it ever could be.A second and deeper problem is that modern politicalscience deprives itself of any benchmark for assessing theeffect of in-group bias. What political scientists used tounderstand "was that the most important question aboutevery Supreme Court decision is also the most interestingquestion to the ordinary citizen, to the student, and hence tothe scholar as well-i.e., was it rightly decided?"7 By positinghow a justice should have voted, political scientists couldthen explore the possible reasons why the iustice votedotherwise. But the "behavioral revolution"8 in politicalscience that occurred in the middle of the twentieth centuryis built on the assumption that iudicial decision-making isbest understood as the playing out of the subiectivemotivations of judges. It has led to "the complete neglect oflegal reasoning, and the near-total exclusion of legalprinciple as a causal force in judicial decision-making."'The Epstein-Parker-Segal study is a typical example ofthe behavioralist, or attitudinal, model. The authors nevereven ask whether a particular Supreme Court decision theycode might be rightly decided. Nor do they exclude5. Appendix C, (Excel version), line 3814 (Sept. 30, 2014),http://epstein.wustl'edu/research/InGroupBias.html (last visited Feb. 5, 2015).6. Id. at 77.7. Matthew J. Franck, Book Review, 15 LAW AND POL. BOOK REV. 176, 177(2005) (reviewing CREATING CONSTITUTIONAL CHANGE: CLASHES OVER POWER ANDLIBERTY IN THE SUPREME COURT (Gregg Ivers & Kevin T. McGuire eds., 2004)),available at http://www.lawcourts.org/LPBRreviews/ivers-mcguire305.htm.8. Id.9. Id.392 [Vol. 63A BAD PROPOSALunanimous rulings from their study. On the contrary: if aunanimous ruling is in favor of a speaker whom they code tobe conservative, that ruling ipso facto provides evidence forthem that the conservative justices have indulged their in-group bias and that the liberal justices have overcometheirs.10 And, vice versa, of course, for unanimous rulings forliberal speakers.When Epstein, Parker, and Segal compile their simplisticbinary codings, they generate seemingly sophisticated tablesreplete with statistical measures, to the third decimal place,of mean, standard deviation, Bayesian credible intervals, andmore. 1 The only appropriate response, I would suggest, is tolaugh out loud at the pseudo-scientific absurdity.Epstein, Parker, and Segal purport to assess whether thevoting pattern of a justice is "statistically significant."1 2 Butwithout taking a position on how the ideal justice should rulein the various cases-an enterprise that would require theexercise of legal judgment and that would, of course, behighly contestable-they have no benchmark against whichto measure an actual justice's voting pattern. They implicitlyassume that the ideal justice would vote for liberal speakersat the same percentage level as for conservative speakers.That assumption in turn presupposes that the cases in whichclaims of liberal speakers and conservative speakers ariseare equally meritorious. But there is no reason to think thatassumption is right, and there are plenty of reasons why itmight be wrong.It might well be, for example, that the cases that reachthe Supreme Court disproportionately arise from liberalappellate panels that issue adventuresome rulings for liberalspeakers (sleeping as speech, anyone?), and that are hostileto conservative speech claims on matters of religion andabortion. If that is the case, the ideal justice would end upvoting more for conservative speakers. For converse reasons,the imbalance could, of course, be in the opposite direction.To be clear: I do not dispute the possibility that in-groupbias might influence judicial decision-making. I simply do not10. See generally Epstein et al., In-Group Bias, supra note 2.11. Id. at 7-14.12. Id. at 10 n.18.20151 393394 BUFFALO LAW REVIEW [Vol. 63see how studies like the one by Epstein, Parker, and Segalhave any hope of meaningfully showing such influence. I amopen to the possibility that statistical analysis of votingpatterns might discover apparent anomalies that suggestavenues for further exploration. But that further exploration,if it is going to be fruitful, will have to involve the sometimesdifficult and often contestable work of legal reasoning-workthat is beyond the bounds that modern political scientistshave imposed on themselves.

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