As Good A Theory as Any

For those who, like me, have trouble decoding why certain SCOTUS justices make the rulings that they do, Richard Epstein propounds an interesting theory in the WSJ ($) today.  He says that you can't relay on traditional conservative or liberal monikers to predict when a justice will back an expansion of government and when she/he will rule to reign it in.

In principle, it would nice if both sides of the
ideological spectrum displayed a sound and consistent position on
statutory construction. Unfortunately, each bloc is opportunistic. The
litmus test for this erratic behavior boils down to a factor not found
in any statute: trust.

The court's two wings share one trait: They defer only
to the government officials they trust. Otherwise, they read a statute
carefully to rein in the authority of officials they don't trust. The
two factions don't differ in their philosophy of language, or in their
on-again, off-again adherence to the rule of law. Rather, the court's
liberal wing profoundly distrusts this president, but has great
confidence in the domestic administrative agencies that regulate
matters such as the environment. The conservative wing of the court
flips over. It willingly defers to the president on national security
issues while looking askance at expansionist tendencies of the
administrative agencies.

This feels as right as any theory I have read of late.  And I certainly can get behind this:

Our Constitution starts out with a presumption of distrust of all
government actors, which is why it drew a sharp line between the
legislative and executive branches. We can argue until the cows come
home whether national security or environmental protection presents the
greater threat of executive or administrative misuse. But that ranking
really doesn't matter, because there is no reason why the Supreme Court
has to defer to overaggressive public officials in either context.
Justice Stevens rightly chastised the president for flouting the rule
of law in Hamdan. But he was tone deaf on the easier question
of statutory construction when blessing the Corps' extravagant reading
of the statute in Rapanos.


  1. SP:

    To date, has anyone attempted some sort of public choice analysis of the Supreme Court? I've never found anything like that. But surely there must be grounds for some kind of analysis. For example, there is probably a big difference in overruling a recently enacted statute and overruling one upon which rests a giant bureaucracy that would have to be dismantled as a result. I'm guessing the extent of the "real world" effect of a particular ruling is significant.

    What sorts of incentives do the Justices face? How signficant is the selection process? Who is writing about this kind of stuff?

  2. Matt:

    What sorts of incentives? Well...they have an incentive not to piss off enough people that they're likely to be asassinated. Other than much. The system was built that way on purpose.

    The problem is that, while intrinsic prejudices might break down in the face of counterincentives, in an incentive-free system they have virtually unlimited reign. Sometimes you'll find a man (or woman, although neither of the women to serve on the Court so far has managed it) with principles strong enough to stand up to his prejudices most (but never, so far, all) of the time, and you'll end up with a Scalia or Thomas. But that's not the way to bet.

    This problem may or may not be solveable in theory. But it's never been solved in practice so far, except by means which create worse problems.

  3. SP:

    Maybe, but the great insight of public choice economics is that the incentives politial actors are supposed to face and in reality face are not always the same, and often quite different.

    As you note, they often don't stand up to their respective principles. Why not? What's the disincentive there?

  4. JohnDewey:

    I would prefer the court be biased toward reigning in administrative agencies. Elected officials are accountable to the electorate, and serve for short terms. Bureaucrats seem accountable to no one, and their actions possess great inertia.

  5. dearieme:

    SP: principles? They are lawyers.

  6. Matthew Brown:

    It's also easier to stand on your principles if you know you're on the minority side anyway.

  7. SP:

    I've noticed that. It seems like Justices writing for the minority side are often happy to strike down laws and declare acts of government unconstitutional. I guess its easy to be bold when you know nothing will come of it. Meanwhile, the majority opinion always upholds everything.

    This gives the false impression that the Court is serving its watchdog function when it isn't.