The Political Economy of the Roberts Court

Professor Maxwell Stearns of the University of Maryland School of Law recently posted an interesting new paper entitled “The Political Economy of the Roberts Court” on SSRN, see here. The premise for the article is unsurprising: Professor Stearns notes that the replacement of Justice O’Connor with Justice Alito represents an incremental move to the right for the Supreme Court. The Article, however, is not about the potential move to the right for the Court in areas such as affirmative action, abortion, or any of the other hot-button issues that Tom noted in his post earlier this week, see here.

Instead, the Article posits that the Supreme Court is likely to loosen the rules of standing and justiciability over the next several years as a result of the “conservative center of gravity” at the Supreme Court coinciding with an “overwhelmingly conservative set of federal circuit courts of appeals.” Using social choice theory, Stearns theorizes that loosening the justiciability rules will permit the lower courts to become an agent of substantive doctrinal change along with the Supreme Court, which often hears too few cases to ensure such change itself. Likewise, under social choice theory, Stearns states that the Court will strengthen justiciability rules when either of two conditions are present: (1) when the Court seeks to control lower federal courts whose ideological dominance is not in line with its own; and (2) when the Court suffers a loose internal coalitional structure (such as the presence of two swing votes during much of the Rehnquist Court) that makes it difficult to predict how substantive legal doctrine will move.

The basis for Stearns’ theory is largely historical. As Stearns notes, when there was ideological divergence between the New Deal Court and the lower federal courts, the Court strengthened justiciability requirements. Meanwhile, during the Warren Court, when the lower federal courts and the Supreme Court could both be considered liberal, the Court loosened justiciability rules considerably in cases such as Baker v. Carr and Flast v. Cohen.

Although I am a big fan of Stearns’ work and I highly recommend this Article, I think he is likely wrong for several reasons. The first is methodological. An initial, but understandable, problem is that he uses the dynamic Martin-Quinn scores to measure the ideology of the Court, but then employs the party of appointment for circuit court judges. The Martin-Quinn scores are pretty good and have been widely used in empirical (especially political science) scholarship in the past couple of years, but the party of appointment has been shown to be an unreliable method of measuring judicial ideology, as Stearns himself recognizes. I am not sure, therefore, that “anomalous appointments” are likely to cancel each other out. I also think that the historical evidence, consisting largely of just two periods in the Supreme Court’s history, is just too small to make such a counterintuitive prediction.

Second, Stearns fails to take into account that the largest circuit in the nation, the Ninth Circuit, is still predominantly liberal and has an unsurprisingly high reversal rate in the Supreme Court. Even if the rest of the circuits have moved in a conservative direction, the Court is unlikely to loosen standing rules until the Ninth Circuit, which produces as much as one-third of the Court’s plenary docket, also falls into line ideologically. Indeed, in 2006, the number of cases pending in the Ninth Circuit represented more than 25% of the total number of cases pending in all federal circuit courts.

Finally, and more fundamentally, I think it is unlikely that a conservative Court will reverse course on justiciability. Justice Scalia, for example, has been one of the most ardent opponents of expanding justiciability in recent years, as evidenced by his opinion in Lujan v. Defenders of Wildlife and his dissent in Friends of the Earth v. Laidlaw. The conservatives on the Court have consistently resisted efforts to loosen the standing inquiry, and I don’t see that trend changing. In other words, unless these decisions were motivated entirely by politics and not by legal principle, the increasingly conservative circuit courts will have little bearing on Justice Scalia’s (or Justice Thomas’s) views on justiciability. As a judicial minimalist, I also do not see Chief Justice Roberts voting to fundamentally expand the justiciability rules either. (As an aside, social choice theory would predict that the liberal wing of the Court would resist efforts to expand justiciability because the lower courts are trending in a conservative direction, so it unlikely that they would participate in any expansion of standing.)

In any event, Stearns’ theory is likely to be put to an initial test in the Court’s upcoming decision in Hein v. Freedom from Religion Foundation, and though I usually hesitate to predict the outcome of Supreme Court cases, my guess is that the Court will vote to limit standing in that case.