Very helpful as always. I read “A Principled Supreme Court, Unnerved by Trump” and “Sweeping Section Three Under the Rug” as evidence for something like 6. Is that correct? If so, shouldn’t our prior then be on 6?
It seems to me that a useful model is something to the effect of: federal judges contain a latent mix of capacity for calling balls and strikes, ideological commitments, and policy preferences. And we'd like them to use them in that order :-)
In any given matter, you're going to get some balancing act of those. The slides will effectively never go to 100%, or to 0%. The more something is impossible to justify as balls and strikes, the less relevance their policy preferences will have. The stronger their ideological commitments are on some question, the more they'll give one part the benefit of the doubt if the "balls and strikes" are coherently contested.
This model is profoundly unsatisfying, and of only limited predictive value.
Indeed, my response to a huge swath of the literature on whether the Court is or is not political is that too many articles appear to be devoted to proving that the law is neither 0% relevant nor 100% determinative of the Court's decision -- the real question is what we can say about the numbers in between.
Clearly what we need to do is figure out what the ground truth _correct_ decisions are under balls and strikes rules and then we can aggregate over justices' decisions to see to what extent they match those results.
Obviously I'm being facetious, but I think it does highlight the serious epistemological challenge we have! (It's for this reason that I was a big fan of the picture of Crosskey you painted!)
(Perhaps it shows that I'm but a lowly software engineer.)
I think the biggest pieces of evidence we have so far are not necessarily the rulings we have gotten, but the way in which we are getting rulings. Lots of activity on the shadow/emergency docket, lots of decisions without reasoning or eliding most of the issues, stays and lifting of stays when they haven't done so in the past, not letting things play out or even letting factual records be developed in the lower courts.
Whatever model (even if none of the above) is correct I think this evidence is hardest to reconcile with #5 unless the definitions of "balls and strikes" are also changing. (To be honest this is my biggest gripe about the "balls and strikes" analogy.)
Very helpful as always. I read “A Principled Supreme Court, Unnerved by Trump” and “Sweeping Section Three Under the Rug” as evidence for something like 6. Is that correct? If so, shouldn’t our prior then be on 6?
It seems to me that a useful model is something to the effect of: federal judges contain a latent mix of capacity for calling balls and strikes, ideological commitments, and policy preferences. And we'd like them to use them in that order :-)
In any given matter, you're going to get some balancing act of those. The slides will effectively never go to 100%, or to 0%. The more something is impossible to justify as balls and strikes, the less relevance their policy preferences will have. The stronger their ideological commitments are on some question, the more they'll give one part the benefit of the doubt if the "balls and strikes" are coherently contested.
This model is profoundly unsatisfying, and of only limited predictive value.
Indeed, my response to a huge swath of the literature on whether the Court is or is not political is that too many articles appear to be devoted to proving that the law is neither 0% relevant nor 100% determinative of the Court's decision -- the real question is what we can say about the numbers in between.
Clearly what we need to do is figure out what the ground truth _correct_ decisions are under balls and strikes rules and then we can aggregate over justices' decisions to see to what extent they match those results.
Obviously I'm being facetious, but I think it does highlight the serious epistemological challenge we have! (It's for this reason that I was a big fan of the picture of Crosskey you painted!)
(Perhaps it shows that I'm but a lowly software engineer.)
I think the biggest pieces of evidence we have so far are not necessarily the rulings we have gotten, but the way in which we are getting rulings. Lots of activity on the shadow/emergency docket, lots of decisions without reasoning or eliding most of the issues, stays and lifting of stays when they haven't done so in the past, not letting things play out or even letting factual records be developed in the lower courts.
Whatever model (even if none of the above) is correct I think this evidence is hardest to reconcile with #5 unless the definitions of "balls and strikes" are also changing. (To be honest this is my biggest gripe about the "balls and strikes" analogy.)