“Ask the Author”: Cass Sunstein & Tom Miles, Part I

This edition of “Ask the Author” features a conversation with Cass Sunstein and Tom Miles about their article entitled, “Do Judges Make Regulatory Policy?: An Empirical Investigation of Chevron,” see here, which was published in Volume 73 of the University of Chicago Law Review. This article has attracted quite of bit of attention and commentary in the blogosphere in recent months, see here, here, and here, and I hope to explore some of the critiques of their article in more depth here. I will post part II of the series on Thursday.

Could you briefly explain your approach and what you were measuring in “Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron”?

We looked at all Supreme Court decisions involving Chevron, from 1996 to 2006. We asked, among other things, whether the justice voted to uphold or strike down an agency interpretation of law, whether the interpretation came in a Republican or Democratic administration, and whether the interpretation was liberal or conservative. Our coding of whether the interpretation was liberal or conservative followed the practice of several previous researchers – we looked to the identity of the party challenging the agency interpretation. For example, an agency decision challenged by an environmental organization was coded as conservative, and an agency decision challenged by industry was coded as liberal.

Full details on our data collection and approach are available in our article that appeared in the University of Chicago Law Review last year (summer 2006), and a downloadable version is available here.

We wanted to see, above all, whether Chevron was working to eliminate political bias from judicial review of agency interpretations. Short answer: It isn’t. We observed that the willingness of many justices to vote to validate an agency interpretation depended to some degree on whether the agency interpretation matched their ideological preferences.

Which justices turned out to be the most activist under your measure? Which were the most liberal? What about the most conservative?

The short answers are Scalia, Stevens, and Thomas.

We measured the influence of a justice’s ideology in two ways. We looked at each justice’s overall rate of validation as well as the extent to which a justice’s validation rate fluctuated with the ideological content of the agency decision. In a recent op-ed that appeared in the Los Angeles Times (and available here), we called the first comparison a measure of “activism or restraint,” and the second a measure of “partisanship or neutrality.”

We concluded that Chevron decisions provided a particularly useful place to test for both judicial restraint (or activism) and judicial neutrality (or partisanship). Chevron instructs judges to uphold agency interpretations of law, so long as those interpretations are “reasonable.” With this command, the Court has long insisted that courts should usually respect the decisions of the executive branch — unless those decisions are plainly inconsistent with law.

When a justice upholds liberal and conservative interpretations at the same rate, the justice seems pretty neutral. But when a justice votes in favor of liberal agency interpretations far more often than he votes in favor of conservative agency decisions, the justice seems pretty partisan. We measured activism and restraint in a similar way. A justice who is unusually willing to uphold agency decisions appears restrained while a justice who is unusually willing to strike down those decisions appears activist. While far from perfect, these measures were at least plausible in view of the command of Chevron.

By these measures, Justice Kennedy was the most neutral. He upheld both liberal and conservative agency decisions about two-thirds of the time. Justice Souter was close behind Justice Kennedy in his neutrality. In contrast, Justices Thomas and Stevens appeared the most partisan by this measure. The rate at which Justice Thomas – the most conservative member of the Court in Chevron cases — voted to validate the agency rose by about 40 percentage points when the interpretation was conservative rather than liberal. The pattern for Justice Stevens – the most liberal member — was nearly the mirror image. His validation rate fell by about 40 percentage points when the agency interpretation was conservative rather than liberal.

With regard to activism and restraint, our measure revealed that Justice Breyer was the most restrained. He voted to uphold agency decisions four-fifths of the time. In contrast, Justice Scalia voted to validate agency interpretations about half the time, and this lower rate made him appear by this measure the most activist.

Do you believe that examining the Supreme Court’s decision-making in administrative law, and particularly with respect to the review of agency decisions, is a valid method for measuring judicial activism? In an op-ed in the Los Angeles Times, Ed Whelan seems to argue that your method is not nearly as probative as judging judicial activism by virtue of the Court’s rulings on the constitutionality of state or federal statutes. What is your response to Whelan’s critique?

There are different measures of activism, and they all have a purpose. We think that we are measuring something of interest and importance, which is how often justices vote to strike down agency action as inconsistent with the governing
statute. In a way our measure is clean and simple. The Court’s own decision in Chevron strongly suggests that a justice’s willingness to uphold an agency’s interpretation of statute should not depend on whether the agency’s decision was liberal or conservative. We think that this is an advance over the existing academic literature.

We don’t hesitate to admit that our measure has shortcomings and that reasonable people may reject it as anything like a global measure. But the alternatives also have significant limitations. The number of high-profile constitutional cases is small, and defining partisanship and restraint in the context of those decisions is even more difficult than in administrative law cases. But we don’t want to argue with Whelan or others that our measure is best, and we think that the understanding of judicial behavior would be improved if there were more attempts to define and measure activism empirically.