Conservative Paradox,
Median Justice Proximity, and Principled Interpretation

Nicholas Georgakopoulos
ngeorgak@iupui.edu

Background

Use 5 - 4 decisions to explore multidimensionality of judging.

Law-centric.

Past pieces:

The Fluidity Index

Illustrating Coalitions

The Six Dimensions of Crim Pro

Super Dissenters

The Un-Americanism Pendulum

Today: multidimensionality v. liberal-to-conservative.

The Conservative Paradox

Since the 1946 term, 5-4 decisions have leaned conservative (58%).

Overall (χ^2) tests.

Same if divided into periods.

By 15-Term Periods : All .

By 3-Term Periods : Most (not ’61-’69).

By Composition: All.

Two Audits

Against Georgakopoulos & Sullivan.

We hand-code 800 decisions. We differ from the DB about 41, 20-21.

Against Epstein, Landes, & Posner.

Judge Posner reads 100 decisions and they drop topics that seem off.
Many dropped cases are coded correctly. Few are coded falsely.
Result: overall count more accurate than count of filtered decisions.

The law of large numbers works.

Explanations?

None from theory.

Rather, Priest-Klein suggests that private disputes should be near even.

But dominant force is certiorari process, not private incentives).

Control of Senate?

Opposite:

Appointments by Republican Presidents often constrained by Democratic Senate control.

No Democrat Presidents similarly constrained.

Suggesting more moderate conservative appointments and liberal bias.

Ideology of the justices?

Let’s use the Martin & Quinn estimates of ideological ideal points.

Three Models from Ideology to 5 Votes

The five who are more cohesive.

Compare standard deviations of the five on each side.

The median will join the four whose view is more agreeable.

Compare distance of median to average of the four on each side.

Next justice tries to approach median one.

Compare distance of median to next on each side.

More on Next Approaches Median?

The more extreme justices (rather than sacrificing a majority) will compromise to at least the position of the justice closest to the median and the resulting four try to get the median to join by, perhaps, further approaching the position of the median.

Paradox 1: No solution. A: Finite interpretations.

E.g. propriety of a search that produces evidence of criminal guilt. 
Median: search was improper, but it was harmless error. 
Next liberal justice: improper & triggered the exclusionary principle
Next conservative: proper. 
The liberals can try to obtain the median justice’s vote by proposing an interpretation that the search was improper without triggering the exclusionary principle, remanding for a new trial. But no additional interpretive positions may exist between the next liberal position (that triggers the exclusionary rule) and the median justice’s position (of harmless error). The conservative side could propose an interpretation that such searches are generally proper but specific aspects of this one made it improper while still constituting harmless error.

Paradox 2: Unanimity. A: Finite and sufficiently different interpretations.

Each side must land on an interpretation sufficiently different from the other to justify the dissent.

Test

({{Specification, St Dev Ratio, , Distances to Averages, , Distancess to Nexts, }, { , Estimates, P-Values, Estimates, P-Values, Estimates, P-Values}, {Constant, .01, .96, .20, .50, .16, .19}, {StDevRatio, .20, .62,  ,  ,  ,  }, {DistLibAvg,  ,  , .09, .37,  ,  }, {DistConsAvg,  ,  , -.23, .05,  ,  }, {DistNextLib,  ,  ,  ,  , .20, .02}, {DistNextCons,  ,  ,  ,  , -.55, .004}, {Adj (R^2) (OLS clone), .005,  , .07,  , .24,  }})

Probit Regression?

Linear Regression: How much?

Probit Regression: Is it? (similar: Logit)

Less Imprecise Separator

More Imprecise Separator

Distances to Next Explain Cons Ratio

Backup Graphs

Step 1

Step 2

Step 3

Step 4

Greater Project:
	Judges are political
	but not utterly political.

Explore More!

Divide sample into decisions in which justices align by ideology and those in which they do not.

Median Explains Aligned More

Backup Graphs

Step 1

Step 2

Step 3

Step 4

Unaligned?

Median proximities have no explanatory power ((R^2)=3% vs. 45%).
No conservative paradox (in either first-year or overall).
A majority (aligned are 48% of overall 5-4 count).

Interpretation? A Historical Exercise

Circa 1900: conservative was expansive federal power and broad interpretation (e.g., Lochner v. NY, 1905, regulating work hours violates due process). 
1950-2021: conservative is narrow federal power and strict interpretation.
Contrary positions show lack of inherent conservatism.
Political system nominates for agreement over salient dimensions.
That aligned decisions are a minority (48%) shows justices decide on principle (legal philosophies).

More?

First v. Subsequent Years

Table: Conservative Ratio by First Year or Not

({{ , First Year, Subsequent Years}, {Republican Appointee, .56, .68}, {Democrat Appointee, .58, .47}})

Graph: Appointees by Party

Table: CR by Party and Alignment

({{ , Later-Yr CR, Later-Yr, Aligned, Later-Yr, Not Aligned}, {Republican Appointee, .68, .74, .58}, {Democrat Appointee, .47, .67, .38}, {(χ^2) p-values, .004, .15, .0001}})

Aligned CR is unchanged: median proximities dominate.
Unaligned CR very different: liberal sensitivities dominate.

Table: Junior’s Unaligned Majority is Own Party

({{ , Junior in Majority, Junior’s Majority is Own Party}, {First Year, .65, .36}, {Subsequent Year, .55, .58}, {(χ^2) p-value, .05, .0008}})

Interpretation: Colleagues determine which areas to avoid [granting certiorari to] due to junior’s departure from conventions.

Distance and Aligned Mix

If ideological distance matters, it should appear as an explanation of the fraction that is aligned.

Aligned Fraction by Ideological Distance between Nexts

Table: Probit Stats

({{ , Estimate, P-Value}, {Constant, -.84, 4 (10^(-24))}, {Distance, .53, 2 (10^(-26))}, {Adj (R^2) (OLS clone), .55,  }})

Thank you!

Nicholas Georgakopoulos
ngeorgak@iu.edu