Judge Judging

Over at Volokh, Juan has a thought provoking post on the charge that opponents of Bill Pryor's confirmation as a federal appellate judge are anti-Catholic bigots. He writes:

"The real question should not be whether an individual nominee has deeply felt religious beliefs about abortion, homosexuality, the death penalty, or some other controversial issue. Rather, it should be whether a given nominee is capable of separating their personal views from their obligation as a judge."

That might be obvious, but a judge's inclination to separate "personal views" and "obligation" is surely hard to gauge. The Washington Post reports that mathematician Lawrence Sirovich is nevertheless trying. Using information theory, he has developed

"a purely mathematical model to gauge the [Supreme Court Justices'] independence simply by cataloguing how often each one sides with the majority or the minority . . . Sirovich used a scale of 1 to 9, where a score of 9 meant the justices always made decisions without regard to ideological alliances or factions, and a score of 1 demonstrated ideological lockstep. The court scored 4.68."

Thanks to: Don't Be a Hero

Comments

[thoreau]

I actually read this paper in the Proceedings of the National Academy of Sciences. The 4.68 score is a little more complicated.

If the court was always in lockstep it would score 1.0. However, in his mathematical model a score of 9.0 would indicate that the judges were not only completely independent, it would also suggest that they are completely unpredictable. A court of 9 independent legal geniuses, each with his or her own unique philosophy, would score 9.0. On the other hand, a court of 9 coin-tossers would also score 9.0 in his mathematical model.

I want to emphasize that I'm NOT saying that an "ideal" court is 9 coin tossers. I'm saying that Sirovich's statistical tools would give a score of 9.0 to 9 coin tossers and also give a score of 9.0 to 9 brilliant legal minds with very unique and independent approaches. No mathematical model is perfect.

Also, 9 completely independent Justices might not be such a good thing. The law should be consistent if it is to be meaningful or worthy of respect. On the other hand, sometimes people present conflicting claims and both sides claim that their case is supported by law. That's sort of the reason why we have judges, so 100% predictability on complicated questions wouldn't be good either.

So a score of 4.68 isn't too bad.

(In the paper, Prof. Sirovich uses the terminology "4.68 ideal Justices", the word "ideal" being in reference to his mathematical model, not in reference to some Constitutional interpretation. If the Court is composed of 4.68 ideal Justices, maybe we should fire 4 of them and keep one of them on a part-time basis 😉

[Warren]

4.68 my ass! Every last one of those sons of bitches couldn't possibly rate higher than 1.5 And the extra 0.5 is only for rhetoric.

Sirovich "acknowledged, however, that the justices' perceived politics do play a significant, if not dominant role." So the problem must be how he perceives their politics.

Clearly, every vote in every case is a mere reflection personal agenda. If the Constitution is in accord with that agenda, well and good, if not, we get a contortion of logic only the most elite of lawyers is capable of. Isn't that what makes one qualified to be a USSC justice? Namely, the ability to concoct reasoning, only other lawyers can comprehend, which supports your own prejudice in the guise of upholding the Constitution?

[thoreau]

Sirovich's scale involved no subjective judgements. He simply looked at the probability that a given justice would rule the same way as another justice. If the probability of Stevens and Breyer agreeing is exactly 50% then they're very independent of one another. If it's above 50%, then they tend to have something in common philosophically. If it's below 50% then their philosophies are incompatible.

Without going into all of the math, suffice it to say that, if all of the probabilities of two particular justices agreeing were 50% then the court would rate 9.0. 9.0 isn't necessarily good, it just indicates a propensity for judges to go their own way rather than consistently form the same coalitions. If the probabilities of two justices agreeing were always 100% or 0% then it would indicate that the justices tend to always vote in the same coalitions. The rating of 1.0 isn't necessarily good or bad, it just indicates that they tend to rule the same way most of the time.

All Sirovich was doing was trying to elucidate the patterns of voting. Sure, we can read the paper to see that 5-4 opinions with O'Connor in the 5 are a pretty common pattern. But Sirovich wanted to get away from the subjectivity, and see what could be determined just by looking at numbers and nothing else.

He made a point of NOT looking into the particulars of the cases. He didn't record whether the justices ruled in favor of the defendant or plaintiff (or the prosecution, in a criminal case). He didn't pass judgement on the Constitutionality of a ruling. He ommitted from his data any unsigned rulings (how can you obtain a pattern with no data?) or rulings where a justice recused himself for conflict of interest or whatever. It was a very rigorous exercise.

[PLC]

This is a clear case of pointless math. It is perfectly reasonable to posit that two judges could agree on every single issue, while arriving at thier conclusion completely independently. In fact, two perfectly reasonable judges, without any knowledge of the other's thinking or even existence, would ALWAYS arrive at the same conclusion to every case.

Correlation of opinion tells us nothing about the independence of judges.

[Anonymous]

So what? When the court rules, I am either 100% guilty or 100% innocent. I'm not 55% guilty and 44% innocent or vice versa.

[thoreau]

Well, some people want to gain insight into the institutions that have authority over them. (Insert all the usual caveats about whether the Supreme Court should have as much authority as it does, whether the Supreme Court uses its authority properly, etc.) Insight can guide people trying to decide whether we should change an institution in some way (e.g. start nominating different types of judges).

The Supremes are portrayed in the news as being divided into factions. You might like or dislike the factions, and you might think that the factions are classified improperly (e.g. instead of liberal or conservative some might prefer "creative with the Constitution" vs. "respect for the Constitution"). But it's worth asking whether a statistical analysis will support the media's standard assertions about the Supreme Court.

The author introduced two mathematical techniques for analyzing voting patterns in decision-making bodies. One of them, based on "information theory" (a very rigorous field that is the basis for a lot of telecommunications technology) yielded the 4.68 rating. The other tool can describe what the most common factions are in Supreme Court decisions. I don't feel qualified to describe the workings of these tool to a layman because I don't really understand them well enough to know if my explanation is correct. I can follow the math, but following equations is not the same as really understanding how the technique works. The deeper understanding requires practical experience.

The mathematician's results more or less coincide with the media's description of the current court (dominated by 5-4 rulings, with O'Connor being the swing vote). However, to this scientist his mathematical tools are quite interesting, the more so because they coincide with widely-held perceptions. That suggests that his mathematical tools may be useful for analyzing other decision-making bodies that receive less attention. For less-scrutinized bodies there may not yet be a consensus on what the dominant patterns are, or the patterns may be more complicated than the current Supreme Court, so mathematical tools would be useful.

So, basically, I thought the paper was pretty darn interesting.

[Anonymous]

But all it really says is that you can expect a fair shake from the court as a whole, even though not one person on the court actually has that intent. (Yes, I'm exaggerating.)

But that was the whole reason the "founding fathers" set it up that way in the first place. Nine wrongs make an acceptable outcome, so to speak.

[Croesus]

Sounds like something from the _Foundation_ trilogy.

[joe]

Fair enough.

[Plutarck]

bigot
n. One who is strongly partial to one's own group, religion, race, or politics and is intolerant of those who differ.

---------------------------------------------------------
Excerpted from American Heritage Talking Dictionary
Copyright ? 1997 The Learning Company, Inc. All Rights Reserved.

The juxtaposition and irony amuses me greatly.

[CItizen]

^ You've been busy. Is the irony that catholicism is necessarily bigoted in that it claims all opposing views are untrue? Ok. But in my experience as of the last, oh five years or so, the insult of "bigot" has little to do with the American Heritage Talking Dictionary definition. It has taken on a meaning of rabid blindly hateful nazi-esque conspirator.

Wait, what was the OP on this topic?

[Anonymous]

Rand introduced me to Libertarianism and Conservatism. Right and wrong exist without the majority. What is this guy's problem?

[Plutarck]

You're right, perhaps I should have gone with my first instinct and posted The Devil's Dictionary version, which was what I first thought of anyway:

BIGOT, n.
One who is obstinately and zealously attached to an opinion that you do not entertain.

That's pretty well how the world it used, it would seem to me. Anyone who thinks differently and strongly about certain topics is a bigot; some people are only a little more choosy.

[dhex]

he didn't do as much crank as rand? just a guess...

[joe]

"I'll stop being an anti-catholic bigot once their "shepherds" stop raping children."

I comment in favor of Affirmative Action, and the result is 100 shrieking accusations of bigotry that would make Kweisi Mfume blush. This asshole writes the above statement and I can hear the crickets chirp.

Libertarians, those great warriors against bigotry.

[PLC]

Joe - in case you haven't noticed, Reason is no longer a libertarian magazine.

[Citizen]

I don't get it. Seems like it'd be impossible for the court as a whole to get a 9. There's always going to be a mojority and (surprisingly) a mojority of the justices will be in that group. So doesn't that mean that at least most of the justices will always be closer to the 1 side? I confess: I didn't RTFA. My bad.

And joe, anti-catholic bigot is a bigot. What do you want? If he admits to being a jackass what can I do besides agree with him? I can make some lame comparison like: You moron ACB! Locally we had a rapist that was a farmer, do you hate ALL farmers now! Hahaha! You are soooooo stoo-pid!

His comments don't deserve a response. "Don't feed the troll" and all.

[Williamson Zach]

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