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Thursday, June 02, 2016
Coding Public Appearances by Supreme Court Justices
I have written elsewhere about the unique nature of Justice Sonia Sotomayor's public appearances. I am reminded again of the importance of this topic because of the differing public statements by Justices Stephen Breyer and Ruth Bader Ginsburg on the need to replace Justice Antonin Scalia.
This leads me to a question: why not code public appearances by the Justices? If we truly care about how liberal or conservative a Justice is, we generally focus on their voting record. We have increasingly sophisticated quantitative measures of these voting records.
Why not care about other things? Why not code the ideological differences in their public appearances? I know of some who have or who are compiling these public appearances, but coding them and adding them to traditional quantitative measures of the Justices would be a great project.
Posted by David Fontana on June 2, 2016 at 11:54 AM | Permalink
Comments
Thank you for these interesting comments. Rick: I certainly agree it would not be an easy task.
Posted by: David Fontana | Jun 3, 2016 3:23:49 AM
RQA, wouldn't it be very interesting to know (if we could really know this from what's said in public appearances) if a Justice's votes were more moderate than her ideology? This would help people who study such things assess how accurate the attitudinal model is, whether particular legal methodologies that certain Justices use are correlated with Justices' voting deviating from their political preferences, and the like. What if, for example, originalist Justices vote in ways that aren't predicted by their political remarks, but non-originalists vote in ways that are predicted by their political remarks? This would be evidence that originalism really is a constraint. (I don't mean to suggest that that's what the data would actually show.) Anecdotally, on reading Judge Garland's answers to the Senate Judiciary Committee questionnaire, I was a little surprised to see that he volunteered for Mondale in 1983-84, before Mondale even got the Democratic nomination. (Recall that Mondale's chief opponent was Gary Hart, a moderate.) This doesn't necessarily show that Judge Garland is now or was then a very liberal Democrat, anymore than the Clintons' involvement in the McGovern campaign shows they are, but supposing it did, it's interesting that that isn't really reflected in his judicial work and possibly tells us something about the relationship between politics and judging under certain conditions (like vertical stare decisis).
Posted by: Asher Steinberg | Jun 3, 2016 1:50:22 AM
As the "who have" in David's quote, I can tell you that such coding would be very difficult to do, especially for past appearances. For some reports, we just have brief news accounts. Some Justices allow no press or recordings. I tried coding for interviews versus speeches versus appearances and the categories were just too hard. It would be easier to do going forward, for at least some appearances, but that limits the explanatory power of the data.
Posted by: Rick Hasen | Jun 3, 2016 12:13:58 AM
Do "we truly care about how liberal or conservative a Justice is" in all respects, or do we primarily care about their ideology as a voting Justice? The "increasingly sophisticated quantitative measures of [Justices'] voting records" don't, after all, disclose some underlying but not directly observable ideological essence behind the votes; rather, those measures summarize the votes themselves. How would information about non-voting, non-opinion writing activity enrich what we already measure? Suppose Justice X's public appearances "reveal" the Justice to be "actually" more liberal or conservative than their voting record: what meaning could we associate with that revelation? Suppose a Justice is personally quite liberal or conservative, and makes that evident in public appearances, but subscribes to theories of judicial restraint that result in much less ideologically definite votes. While it might be interesting to put together the different strands of such a Justice's persona in writing a biography, how would it help anyone understand the functioning of the Court as an institution during that Justice's tenure?
Posted by: RQA | Jun 2, 2016 5:24:34 PM
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