The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The Legal Profession and the Case for Fundamental Reform: Ideological Polarity and Packing the Supreme Court


Americans have historically held the judicial branch of government in highest regard because of its perceived aloofness from politics. Unfortunately, perceptions of the Supreme Court are changing. Dean Erwin Chemerinsky of Berkeley Law School characterized justices on recent courts as politicians in fine robes, who simply reflect the views of the president who appointed them. In the aftermath of the rushed confirmation of Justice Amy Coney Barrett, some Democrats raised the possibility that they might attempt to "pack the court" to redress the philosophical imbalance, and they have recently introduced legislation to expand the Supreme Court by four justices.

Trouble at the Bar assesses whether justices are behaving like politicians by contributing to the debate on whether they make ideologically based rulings. We then consider whether it is appropriate to restructure the Supreme Court.

Judge Richard Posner argues that, because justices do not share a commitment to a logical premise for making a decision (for example, cost-benefit analysis), they must be ideological because they cannot be anything else. Justices' ideological instincts are derived from the fact that they have been trained and gained work experience as lawyers and judges in lower courts. This background reduces the effect of scientific influences, especially mathematics and statistics, to mitigate those instincts.

For example, when presented with basic statistical evidence of anomalies in the 2019 election of Georgia's lieutenant governor, a Georgia Supreme Court justice said: "We are all lawyers. We are all judges. You are making us shudder with math." Another added, "I am one of many people who went to law school because I was told there would be no math. Yet here it is." It is hardly surprising that after advancing to his position as Chief Justice of the U.S. Supreme Court, John Roberts' response to statistical evidence showing Wisconsin's voting districts had been warped by political gerrymandering was to dismiss it as "sociological gobbledygook," when, in fact, it was a conclusion based on basic mathematical methods.

The late Justice Antonin Scalia dismissed criticisms of being an ideologue by characterizing himself as an "originalist"—that is, he adhered to the original meaning of the text of the U.S. Constitution and statutes enacted by Congress, not the meaning as he wished it were. But Professor Cass Sunstein countered that when cases get to the Supreme Court, the original sources often leave gaps and ambiguities. If one examines the highlights of Scalia's voting record, they simply fit with the ideologies of the Republican Party.

Recent research has addressed the issue empirically by estimating the effect of justices' ideologies on their votes before the court. Lee Epstein, Landes, and Posner performed a statistical analysis of business cases and concluded that the conservatives on the Roberts court are extremely probusiness and that the liberals are only moderately liberal. Professor Richard Epstein challenged their finding on the grounds that the authors did not control for potential selectivity bias in the case petitions that the Roberts court accepts.

Trouble at the Bar takes up Richard Epstein's challenge by estimating a joint model of justices' votes on business cases and their selection of petitions and provides strong evidence that Epstein is correct that omitting case petitions does cause selectivity bias that affects the conclusions. However, the effect is to mute ideological preferences through the petition-selection process. When we control for case selection, we find that "liberal" justices have even stronger preferences to vote against businesses and "conservative" justices have even stronger preferences to vote in favor of businesses than Lee Epstein, Landes, and Posner find. Moreover, the Roberts court has become much more polarized along ideological voting lines than the court under former Chief Justice William Rehnquist.

It is difficult to quantify the causal implications of the Supreme Court's growing ideological polarity on the nation's economic and social welfare. However, it is hard to imagine that the effects are positive if over time administrations attempt to overturn important decisions made by previous administrations, with the court abandoning a more socially desirable middle ground that forges decisions not marked by ideological splits.

Clearly, the desirable response is not to pack the Supreme Court with a balancing number of ideological justices, but is there anything constructive that could be done? Consistent with Judge Posner's view that judges should make more pragmatic, policy-based decisions, Trouble at the Bar suggests that justices should be receptive to forming and working with a panel of independent experts from appropriate academic disciplines to improve their understanding of, and the decisions they make about, cases that involve increasingly complex social and technical issues but may evoke ideological preferences.

So-called "virtual briefings" are currently being provided online to influence justices and law clerks outside of traditional briefing rules. The expert panels that we recommend are not intended to challenge the court's authority and the rule of law; instead, they would provide an additional opportunity for justices to benefit from experts in an environment that may facilitate more targeted and balanced discussion. For example, we envision "packing" the court with economists who serve on expert panels to provide advice to all justices about the efficiency and distributional effects of potential rulings. A formal process could be established for long and short-term appointments.

It is useful to clarify and strengthen the proposal by raising and responding to some plausible objections to it.

  • It could be argued that economists are also ideological. I do not disagree, but the issues facing the court that involve economists are likely to be debated over empirical methods and findings and the scientific basis for disagreement will be clearer and perhaps easier to resolve than ideologically based disagreements over legal scriptures.
  • The Supreme Court is supposed to be narrowly constitutional and a check within the structure of governance. Certainly, however justices are free to be as narrow or broad as they want to assess cases brought before them. So, why not draw on expertise, where appropriate, which could lead to a more informed and socially desirable decision?
  • The Supreme Court is supposed to make legal decisions not economic decisions. Agreed, but it would clearly be useful for justices to know whether specific legal arguments and rulings would be at variance with economic efficiency and progressive redistribution goals. The law is generally not so narrow that it prevents those considerations and new precedents that could be more aligned with economic objectives. Justices also could simply reject those considerations, but at least they would be aware of them.
  • The approach is too academic, and it will turn court deliberations into a seminar with no practical insights. I am not suggesting that the expert panels should be restricted to academics. They should include economists from all walks of life that could provide insight on a case.
  • Finally, the legislative branch is supposed to contain experts and look at the big picture. Given that the legislative branch has become fractured and has not been objectively debating policies for decades, it is even more important for the judicial branch to step up and increase its engagement with experts and consider the big picture.

Of course, cases are likely to call for experts in several disciplines besides economics. Over time, justices would develop the habit of integrating basic legal doctrines, where appropriate and permissible, with the wisdom accumulated from a broad range of intellectual perspectives. The thought process that this inculcates could mitigate the influence of ideology on the court and lead to more rulings that truly benefit the nation.