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Predicting US Supreme Court Justice Votes

Soulskill posted more than 2 years ago | from the indulge-your-cynicism dept.

The Courts 186

New submitter Pierre Bezukhov writes "Researchers Roger Guimera and Marta Sales-Pardo of Spain set out to ask whether one of the nine Supreme Court justices could be plucked from the bench and replaced with an algorithm that does not take into account the law or the case at issue, but does take into account the other justices' votes and the court's record. These researchers say their computational models, using methods developed to analyze complex social networks, are just as accurate in predicting a justice's decision as forecasts from legal experts. 'We find that Supreme Court justices are significantly more predictable than one would expect from "ideally independent" justices in "ideal courts,"' that is, free agents independently evaluating cases on their merits, free of ideology, the study said."

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My prediction (-1, Offtopic)

Anonymous Coward | more than 2 years ago | (#38036464)

Is that I get first post. This can't be reversed!!

Re:My prediction (1)

Hartree (191324) | more than 2 years ago | (#38037888)

"This can't be reversed!!"

Easy. You just have to know the admin password to the database.

So these social networks... (1)

Anonymous Coward | more than 2 years ago | (#38036468)

These social networks and the like. Could it be that they're correlated with the issues of the case in unexpected ways? Left-wing democratic types don't bring many cases arguing for gun rights, for instance. Just sayin'.

A really good judge (0)

catmistake (814204) | more than 2 years ago | (#38036482)

can sit through an entire case and not hear a thing. Law clerks write the decisions.

Re:A really good judge (5, Funny)

icebike (68054) | more than 2 years ago | (#38036492)

I wish a law clerk had written the last sentence of the summary.
It might have had a chance of being intelligible.

Re:A really good judge (1)

Jane Q. Public (1010737) | more than 2 years ago | (#38036848)

It makes perfect sense if you insert the closing quote in the right place. It appears to have been omitted.

Re:A really good judge (2)

Oxford_Comma_Lover (1679530) | more than 2 years ago | (#38036570)

Law Clerks write the decisions, but a good judge decides what the decision will be. In SCOTUS, the judges get bench briefs from their clerks before oral argument, plus briefs from either side. Then they retire after the case is argued and go around the table, with the least senior justice speaking first and giving his impression of the case / comments / where he'll come out. It goes in order of reverse seniority so that the senior justice speaks last in order to get the benefit of hearing everyone else first. Then they have clerks write opinions based on their decision. Occasionally there is a realignment after reading the opinions that are drafted.

Fantastic (2, Funny)

Jeremi (14640) | more than 2 years ago | (#38036494)

Now Thomas is going to the Halting-Problem-Buster trick, by getting a copy of this program and ruling the opposite of whatever it predicts he's going to do.

Re:Fantastic (3, Interesting)

DJRumpy (1345787) | more than 2 years ago | (#38036698)

Actually, Scalia was found to be the most activist with Thomas running a close second. Conservative judges were also found to me more activist (willing to strike down rulings that lean towards a liberal bias). There's an interesting study on judicial partisanship that was done over 20 years of cases. The old conservative class of 'Liberal Activists Judges" turns out to not be entirely true after all, but rather leaning more towards a conservative trend towards begin activist.

http://www.law.harvard.edu/news/2008/08/04_sunstein.html [harvard.edu]

Re:Fantastic (-1, Troll)

Ethanol-fueled (1125189) | more than 2 years ago | (#38036756)

Scalia was also notorious for expressing concern during an interview that too many people are becoming lawyers and that they add nothing of value to society.

As for Thomas, well, he's probably giving Herman Cain high-fives right now.

Re:Fantastic (3, Insightful)

Hartree (191324) | more than 2 years ago | (#38036758)

There's a bit of a time horizon issue in that. You've got to decide what period of time you look at. That's going to have an impact on what you see.

My guess is that if you looked at the years of the Warren court, you'd get a different answer.

The court is not utterly independent of the politics of the country around it. In the 50s, there was a move toward activist decisions that could be considered liberal at their time. In the 80s, there was something of a reversal of that with more activist decisions coming from the right.

The group that is defending the status quo of the time is less likely to be "activist" than a group more inclined to change it.

Re:Fantastic (1)

Maxo-Texas (864189) | more than 2 years ago | (#38037422)

My perception is that the 50's to the 90's were a period where justices (liberal or conservative) respected precedent even if they disagreed with it.

Since Reagan, the conservative justice are willing to regularly turn over very long standing precedents.

Huh??? (2)

Hartree (191324) | more than 2 years ago | (#38037720)

Forgive me, but I'm a touch incredulous at that statement.

Not my recollection (60s through now) at all, especially the Warren court and the early 70s.

The Warren court was pretty unabashedly activist. Go read up on it. They saw themselves as addressing needed social injustices via court decision. You may agree with what they decided (and many times it was needed badly as the civil rights cases and some of the liability) but that's the very definition of judicial activism.

How do you think they didn't overturn precedent on Brown vs Board of Education and the other cases that were the very core of the victories of the civil rights movement? In Brown, they specifically went against previous decisions (Plessey vs Ferguson) that said segregation was acceptable. In Brown, they said seperate but equal was not.

How was Roe vs Wade not a change from the longstanding tendency to leave medical regulation to the states? Etc, etc, the list is a long one. Look at liability law as well. there was major overruling of standing precedent.

Just because a decision was a good or needed one doesn't bear on whether it was activist or precedent preserving.

What you're saying just doesn't agree with history.

Re:Fantastic (5, Informative)

Jane Q. Public (1010737) | more than 2 years ago | (#38036886)

That is interesting, but from your usage, it appears that you misunderstand what being an "activist" judge means. An "activist" judge is one who attempts to create law in the courtroom, as opposed to evaluating existing law. It is not a "left vs. right", "liberal vs. conservative" concept.

Re:Fantastic (2)

DJRumpy (1345787) | more than 2 years ago | (#38036914)

A judge doesn't "create" law. They interpret it. Interesting idea, but the reality is they simply interpret existing law in a way that provides a favorable outcome to whatever partisan leanings they have.

In the context of partisan leanings, it is most decidedly a liberal vs conservative concept.

Re:Fantastic (1, Informative)

StikyPad (445176) | more than 2 years ago | (#38037062)

Actually, the higher courts do create law -- case law -- but despite the gripings of the GP, that's their job. Similarly, the executive branch creates regulations with the force of law. All three branches create law, it's just the methods that differ, and ultimately the legislative branch has the authority to override regulations, rulings, and even the constitution itself.

Re:Fantastic (0)

Anonymous Coward | more than 2 years ago | (#38037276)

... ultimately the legislative branch has the authority to override ... even the constitution itself.

Facepalm. Ever read Article V?

This just in -- the USA is not a single nation, it's a confederation. Shocking, but apparently true.

Re:Fantastic (2)

fyngyrz (762201) | more than 2 years ago | (#38037844)

ultimately the legislative branch has the authority to override regulations, rulings, and even the constitution itself.

...and here we have the ultimate expression of free speech. You can say anything you want, even when it is simultaneously wrongheaded, stupid, misleading, and flat-out incorrect -- all at once.

I congratulate you, sir, on completely failing to understand how your government works, and further, for attempting to spread that failure far and wide.

Re:Fantastic (1)

magarity (164372) | more than 2 years ago | (#38037136)

A judge doesn't "create" law. They interpret it.

They aren't supposed to create law but many rulings have that affect. Look at Brown v Board of Education - that judge ordered a bus system and school districts re-arranged to equalize ethnic student mixtures. This didn't explicitly create the same thing as what the legislature produces in terms of "a law" but to pay for the buses taxes had to be raised, something that's normally only done via law by the legislature.

Re:Fantastic (1)

DJRumpy (1345787) | more than 2 years ago | (#38037450)

They have the appearance of that to some extent but these justices are still confined within the law they are ruling on. They can't just create law out of nothing. They are not a power absolute unto themselves. They too con be impeached just like the president.

Citizens United v. Federal Election Commission is a good example of that. The judges interpreted it's meaning to include personhood for a corporation based on their opinion, but they were still confined to the wording on the law as they interpreted it. Yes they have latitude in how they interpret it but they are still limited by the law (they can't explicitly rule contrary to something stated plainly for example or they would face impeachment). To wander too far from the construct of the law would most likely result in a short lived ruling with no basis in law.

Brown v Board of Education is no exception either. The judges ruled on the basic premise that segregation based on race was illegal, meaning the state had to treat all citizens equally in regards to education offered. The 'burden' to bus these students was offset by removing the need to two separate schools. The ruling didn't suddenly have students being bussed hundreds of miles. For example, the case in question was around a student having to travel 1.6 km as opposed to 7 blocks to a 'white' school.

Re:Fantastic (0)

Anonymous Coward | more than 2 years ago | (#38037518)

Actually, history shows that they are not constrained by law or by the Constitution. All too often they find things which do not exist and are not even implied, such as the mythical "right" to privacy. Again, it is not about right or left, but right vs. wrong.

Re:Fantastic (1)

Fjandr (66656) | more than 2 years ago | (#38037402)

I suggest you read up on common law. Judges most certainly do create law in legal systems that are based on the concept of common law.

The US is one such system.

Re:Fantastic (2)

brokeninside (34168) | more than 2 years ago | (#38037584)

"A judge doesn't "create" law. They interpret it."

You haven't read much in the way of legal theory, have you?

Outside of the most conservative legal theories, such as classical legal positivism and natural law theory, few legal scholars would object to the idea that judges create law. Some would say that judges should be careful not to give the appearance of creating law because such an appearance might lead the masses to object. But, for the most part, the dispute between various legal philosophies is not over whether or not judges create laws but the extent to which judges are justified in creating law.

Go back to the late 1800s and read Oliver Wendell Holmes, Jr.'s essay "The Path of the Law." You can find it online quite easily. In it he advances the most extreme version of a legal philosophy that thinks that judges create law. His view, legal positivism, is that law is nothing more than a prediction of how judges will rule. If you don't think something over 100 years old is still relevant, go read any of the essays or books by appellate court justice Richard Posner who advocates a very similar legal philosophy.

Scholars who oppose the theory of Holmes and Posner generally only oppose the extent to which they take the theory. They argue not that judges do not create law but the extent to which they create law is small and well circumscribed by legislation and precedent.

Re:Fantastic (1)

DJRumpy (1345787) | more than 2 years ago | (#38037760)

As I said, within the construct of the law they are ruling against, they have latitude, but that latitude is limited. They can't simply create something out of nothing as they must base those decisions on laws within them. This is not a black and white answer. Within the construct of the law they are ruling on the latitude allows them to interpret existing law but they can't create new law out of a vacuum.

In short, I don't disagree that they can create rulings within the construct of the law they are judging on but outside of that they would either quickly be overturned, or the ruling would be short lived, or at an extreme, cause impeachment proceedings. That has happened in the past to a supreme court judge who was found to have let his political leanings affect his judgements (see Samuel Chase). Of course in his case, the house impeached and the senate acquitted him, but the precedent is there. If a judge goes rouge to the point where their judgements do not fit within the confines of the law they can be impeached.

Re:Fantastic (1)

Jane Q. Public (1010737) | more than 2 years ago | (#38038186)

"A judge doesn't "create" law. They interpret it. Interesting idea, but the reality is they simply interpret existing law in a way that provides a favorable outcome to whatever partisan leanings they have."

Obviously you aren't familiar with the concept. Of course they aren't supposed to create law, but some do... or try to. Which is exactly why they're called "activist" judges.

Re:Fantastic (2, Interesting)

magarity (164372) | more than 2 years ago | (#38037068)

Actually, Scalia was found to be the most activist with Thomas running a close second. Conservative judges were also found to me more activist (willing to strike down rulings that lean towards a liberal bias)

There are two main types of Federal justices: originalists and activists. An activist is not one who rules contrary to prior decisions. An activist justice is one who rules according to his/her view of how things out to be in the modern world. An originalist rules according to how he/she thinks the founders of the country would have thought of the matter. Neither Scalia nor Thomas can be "most activist" or even activist at all; both are well known for quoting historical sources as the basis for their decisions.

Re:Fantastic (1)

magarity (164372) | more than 2 years ago | (#38037962)

The guy who wrote that study saying justices appointed by conservative presidents are 'activists' instead of 'originalists' is far left himself. Check out his book about how FDR's New Deal programs didn't go nearly far enough on social welfare rights.

Re:Fantastic (0)

Anonymous Coward | more than 2 years ago | (#38038148)

The rules for the study appear to apply equally to either side and are rather simple. Although it's possible there was bias in the study (for example cherry picking cases), the very fact that they excluded two of the most recent and most conservative SCOTUS judges would seem to indicate it's an honest attempt.

This is a surprise why? (3, Informative)

spazmonkey (920425) | more than 2 years ago | (#38038026)

You have conservative Christian 'law schools' that focus specifically on teaching how to use and apply law toward the explicit agenda of moving it in the direction of biblical principles. By definition, they are designed to only turn out activists. It is their express stated intent, and the way those schools promote themselves as different from traditional law schools they compete with. Is it any surprise then that the only real sizable pool of 'activist' judges are conservative/christian supremacist types?

Re:Fantastic (1)

dgatwood (11270) | more than 2 years ago | (#38036706)

Amusingly, that would almost invariably result in a better and more well-reasoned decision, IMO.... Excluding cases that were unanimous or nearly unanimous, I can only think of one case I've ever looked at where I agreed with Justice Thomas, and even then, although I agreed with his decision, I disagreed with the reasoning that led him to that decision.

Re:Fantastic (0)

Anonymous Coward | more than 2 years ago | (#38036820)

Okay, I'll bite. Which, why and how?

Have you ever agreed with his reasoning but not his decision? For example, in Kelo v. New London, I agreed completely with his reasoning, found it rational and necessary, but disgreed with his decision.

Re:Fantastic (1)

dgatwood (11270) | more than 2 years ago | (#38037400)

Can't remember. It was at least a year ago, maybe two. It might have been a case about searches, wiretapping, GPS, or something similar. My recollection was that his reasoning limited the decision (and thus the burden on the government to obtain a warrant) more than it should have. But again, it has been too long for me to remember the details. IANAL. I just play one on Slashdot.

I don't get it... (5, Interesting)

adamchou (993073) | more than 2 years ago | (#38036498)

Algorithms like this have to be modeled after the historical decisions that the justices decided upon. So of course they accurately "predict" the historical decisions. So how do they know how accurate these things are for future decisions? I couldn't RTFA because the damn article isn't loading on my crappy government Internet connection.

Re:I don't get it... (1)

fsckmnky (2505008) | more than 2 years ago | (#38036518)

I didn't read the algorithm, but perhaps it compares 1 judges decision, to the 8 other judges decisions, and creates a "thinks like" score.

A Bayes thing-a-ma-judge.

Re:I don't get it... (1)

Oxford_Comma_Lover (1679530) | more than 2 years ago | (#38036582)

Yes, comparing it to the eight others' votes in the same case does seem to be cheating...

Ideal indepedence among justices does also not mean no covariance. The law itself creates covariance.

Re:I don't get it... (4, Insightful)

PhrostyMcByte (589271) | more than 2 years ago | (#38036654)

Typically when doing this kind of statistical analysis, one uses half the data for training and half the data for accuracy tests.

I haven't RTFA though, so I don't know what they've done.

Re:I don't get it... (4, Informative)

Jane Q. Public (1010737) | more than 2 years ago | (#38036904)

"So of course they accurately "predict" the historical decisions."

In tests of this nature, the way such algorithms are tested is by giving them a subset of historical data (ideally chosen randomly), then seeing if the program can predict outcomes from historical situations that were not included in the "learning" data.

So your objection has little merit.

Re:I don't get it... (2)

adamchou (993073) | more than 2 years ago | (#38037112)

If you'd re-read what I wrote, I didn't object to anything. I asked a question.

So your accusations have little merit.

Re:I don't get it... (1)

aurispector (530273) | more than 2 years ago | (#38037378)

You don't need to RTFA because the entire premise is bunk. The high court exists for interpretation of the law, heck, the entire legal system exists due to the need to interpret the meaning of written law. There is ultimately no "ideal" or "unbiased" way to make such decisions, nor should anyone try to pretend there is.

Knock Me over with a Feather (2, Funny)

rshol (746340) | more than 2 years ago | (#38036504)

Wait, what? Supreme court justices have political opinions? Who would have thunk it.

Re:Knock Me over with a Feather (2)

Jane Q. Public (1010737) | more than 2 years ago | (#38036926)

Political opinions are a given. However, those opinions are not supposed to bias judges in their evaluation of the law: they are supposed to exercise "judicial restraint", and separate their own opinions from the legal facts.

Some people are better at that than others. I would argue that because for generations, Supreme Court justices have been appointed specifically because of their ideologies, as opposed to their legal brilliance or objectivity, that the current Supreme Court is rather terrible at it.

Re:Knock Me over with a Feather (1)

Jane Q. Public (1010737) | more than 2 years ago | (#38036944)

The name "Elena Kagan" springs to mind, as a rather glaring recent example.

Re:Knock Me over with a Feather (1)

Theaetetus (590071) | more than 2 years ago | (#38037302)

The name "Elena Kagan" springs to mind, as a rather glaring recent example.

I think you misspelled "Samuel Alito".

Re:Knock Me over with a Feather (1)

Jane Q. Public (1010737) | more than 2 years ago | (#38037798)

Actually, you could call all three: Alito, Sotomayor, Kagan, glaring recent examples.

Are judges suppose to exercise legal restraint? (1)

brokeninside (34168) | more than 2 years ago | (#38037530)

Where does the law state that judges are supposed to separate their own bias on the one hand from the facts at hand, legislation, etcetera on the other?

As early as the late nineteenth century, Oliver Wendell Holmes, Jr. was arguing that the law was nothing other than a prediction of how judges will rule and that legislation was nothing more than one input among others to what law is.

The idea that judges should exercise judicial restraint only follows from a specific ideology and its particular understanding of what law is. It has no foundation in legislation or in the US Constitution. The best legal foundation for that principle is the idea of common law which, in the present day, is disputable as a significant input to the law.

Now, not all legal ideologies are extreme as the legal realism of Holmes. But few entertain the idea that judges are necessarily bound by judicial restraint. The closest you'll find to something of that sort is the ideology of legal positivists like Joseph Raz and HLA Hart that hypothesize something along the lines of a "rule of recognition" and observe that judges ought to be somewhat conservative in order that the masses will continue to see the law as valid and binding.

Re:Are judges suppose to exercise legal restraint? (1)

Jane Q. Public (1010737) | more than 2 years ago | (#38037860)

I find this whole comment to be an exercise in questionable conclusions based on questionable assumptions.

"The idea that judges should exercise judicial restraint only follows from a specific ideology and its particular understanding of what law is. It has no foundation in legislation or in the US Constitution. The best legal foundation for that principle is the idea of common law which, in the present day, is disputable as a significant input to the law."

Are you completely out of your mind? Our entire legal system, and yes, even the Constitution, are solidly based on the principles of common law. Without common law, we would have no legal system at all. One of the reasons many things were NOT included in the Constitution, was that they were felt to be self-evident consequences of the principles of common law.

Many of the "rights" you now enjoy are fruits of that common law system, as reflected both by tradition extending back far beyond the Constitution, and in a great many decisions by the Supreme Court.

Justices (and judges) themselves consider themselves to be bound by the tenets of judicial restraint (however bad some of them may be at exercising it), and that idea did not just come out of thin air. Our very rule of law is dependent on the principle of judicial restraint. Otherwise, you would have Roman Catholic judges "interpreting" laws according to Roman Catholic tradition, and some Muslim judges leaning toward Sharia-based interpretations of the law.

So, sorry, but you are just plain wrong about judicial restraint. While imperfect, it is an essential part of our legal system.

Re:Knock Me over with a Feather (1)

AK Marc (707885) | more than 2 years ago | (#38036940)

The point is that for the consistency of decisions, they don't just have political opinions, but they decide all cases based solely on the topic, with complete disregard of the law and the facts of the cases brought before them.

Justices can be replaced by algorthims (1)

bigsexyjoe (581721) | more than 2 years ago | (#38036596)

Yet another reason that people shouldn't fear the coming rule of the computer overlord...

Re:Justices can be replaced by algorthims (0)

Anonymous Coward | more than 2 years ago | (#38036982)

Why shouldn't we fear? I for one would rather not be judged by a computer. Especially not one that uses "an algorithm that does not take into account the law or the case at issue, but does take into account the other justices' votes and the court's record.". Did anybody read that? It doesn't judge based on the law, but on the other votes and the court's record. Judgments should be based on the law and the case at issue!

Even if I liked the idea, you'd have to invent an ai to decide what the algorithm would agree with. Regardless it would end up being based on someone or our concept of agreement. The computer's operation will always be intrinsically tied to it's creators or their collective vision. Impartial people cannot make an impartial machine.

There is no such thing as an correct judgement based on absolute adherence to the letter of the law unless the law is not intended to reform people, but simply punish everything. We have that kind of system as is, and all it gets us is more and more people locked up in prison.

The Suprme Court can't rule impartially (3, Informative)

Nidi62 (1525137) | more than 2 years ago | (#38036606)

The whole point of the Supreme Court is interpretation. Interpretation of how a law applies to a given situation (and if it even does). This involves more than just case knowledge, it relies on all their experience behind the bench, as well as their own beliefs. The justices are ruling on how they think the law applies, based upon their own knowledge of case law, the language of the law in question, and their belief as to the intention of that law. Impartiality is possible in application; it is much harder, if not impossible, in interpretation.

And this ignores the fact that Supreme Court Justices are in fact political appointees and are selected based upon how they ruled on given cases (ie, in a way the President and majority of Congress ideologically supports). So even selection, well, selects towards those with a certain bias depending on which party is in control of the government at the time of appointment.

Re:The Suprme Court can't rule impartially (2)

93 Escort Wagon (326346) | more than 2 years ago | (#38036718)

And this ignores the fact that Supreme Court Justices are in fact political appointees and are selected based upon how they ruled on given cases (ie, in a way the President and majority of Congress ideologically supports). So even selection, well, selects towards those with a certain bias depending on which party is in control of the government at the time of appointment.

Of course, as has been seen with appointments such as David Souter, John Paul Stevens,and Earl Warren, the political alignment of the standing president hasn't always correlated well with the future track record of their appointees.

Re:The Suprme Court can't rule impartially (2)

anom (809433) | more than 2 years ago | (#38036736)

IMO this is a good thing -- it shows that the concept behind the lifetime appointment works. Once they're on the bench, even if they "owe someone" for getting there, there's nothing that can really force them to rule one way or another.

Re:The Suprme Court can't rule impartially (1)

rollingcalf (605357) | more than 2 years ago | (#38037840)

More precisely, it shows the benefit of them not having to run for reappointment or reelection. Lifetime appointment isn't necessary to accomplish that -- instead of lifetime they could be appointed for one fixed-length term of (for example) 18 years.

Re:The Suprme Court can't rule impartially (1)

Y.A.A.P. (1252040) | more than 2 years ago | (#38036988)

A change in bias is actually the norm for SCOTUS Justices. Most gain a more Liberal interpretation the longer that they serve.

This would seem to be a logical change to be expected from them performing their duties properly. They are supposed to be interpreting cases based on the Constitution and the mindset of that document's authors.

Given that the mindset of the Founding Fathers of the USA and the rights they attempted to set forth for the people that would be governed, they were very Liberal for the time (one could even call them Radicals considering that they had just gone through a bloody revolution). Going through the Founding Father's other writings to solidify an image of their mindset, shows them to be even more Liberal than their general historic portrayal.

Looking at that, on the basis of the principles of resolving cognitive dissonance in Psychology, a SCOTUS Justice that properly preforms their duties becoming more Liberal in their interpretations is to be expected.

This leads one to wonder why the Conservative appointees from the Reagan-era onwards are mostly acting as exceptions to this norm.

Re:The Suprme Court can't rule impartially (1)

Stiletto (12066) | more than 2 years ago | (#38037248)

A change in bias is actually the norm for SCOTUS Justices. Most gain a more Liberal interpretation the longer that they serve.

That's one way to look at it. I'd argue that a judge can remain constant in their political outlook while the country's overall political climate shifts, and it looks like they have changed their interpretations.

A 1980s-era conservative looks like a flaming liberal today, mainly because of the massive rightward-shift that the USA's overall political climate has undergone during the last 30 years.

Re:The Suprme Court can't rule impartially (0)

Anonymous Coward | more than 2 years ago | (#38037150)

This is why elections matter.

Re:The Suprme Court can't rule impartially (1)

Jane Q. Public (1010737) | more than 2 years ago | (#38037556)

"The whole point of the Supreme Court is interpretation. Interpretation of how a law applies to a given situation (and if it even does)."

Yes, but the idea of "interpretation" has often been applied much too loosely... to include things such as "what did the framer of this legislation really mean?" (when the actual meaning is already clear from the historical record), and "what would have the writers of this law have actually written if they were alive today?"

As you say: the license given to judges is to interpret whether and how the law applies... not to decide what the law is, or to create law from the bench. Those are matters for the legislature.

"The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it." -- James Wilson

"The justices are ruling on how they think the law applies, based upon their own knowledge of case law, the language of the law in question, and their belief as to the intention of that law. Impartiality is possible in application; it is much harder, if not impossible, in interpretation."

But that is part of my point: they should have no "belief" as to the intention of a law. When it comes to law, facts rule, beliefs can take a long walk off a short pier. There is no place for "belief" in a courtroom.

"Impartiality is possible in application; it is much harder, if not impossible, in interpretation."

I disagree. Some people are better at being impartial than others. It is quite obvious that the majority of the current Supreme Court just plain suck at it.

"So even selection, well, selects towards those with a certain bias depending on which party is in control of the government at the time of appointment."

I agree completely, but that is no excuse. To the extent that justices indulge in ideology or political bias when making their decisions, they aren't doing their jobs! The reason they aren't doing their jobs is irrelevant. The office calls for impartiality. The less impartial they are, the less they belong in that office.

Courts are supposed to be predictable (5, Insightful)

Hentes (2461350) | more than 2 years ago | (#38036636)

The whole point of the legal system is that courts don1t just hand out verdicts randomly, but according to the laws available for everyone. Without that, people wouldn't know how to act legally. In fact, ideally one should be able to predict what a courts decision would be in every situation. unfortunately, the legal systems of the world are too complicated/contradictory for that.

Re:Courts are supposed to be predictable (0)

hedwards (940851) | more than 2 years ago | (#38036684)

And yet they sometimes do hand out verdicts that might as well be random. Just look at the Bush v. Gore decision where they decided that one man one vote meant that enough votes were left untallied to effectively hand the election to Bush because they were concerned that too much attention was being paid to those particular ballots.

Or Connick v. Thompson where despite Connick's own admission that the prosecutor's office failed to turn over all of the evidence to the defense that there wasn't a Brady violation. And despite Connick's own admission that he had failed to train his staff as to what would constitute a Brady violation.
http://www.slate.com/articles/news_and_politics/jurisprudence/2011/04/cruel_but_not_unusual.html [slate.com]

Re:Courts are supposed to be predictable (1)

Anonymous Coward | more than 2 years ago | (#38036800)

Bush v Gore was about math. The race was a statistical tie. The Gore campaign was going to keep asking for recounts of Democratic leaning precincts until he won. While that's a good strategy to win a recount, it's not a good strategy to come to a fair result. The Supreme Court put a stop to it. It didn't stop the Democrats from using the same strategy successfully in a governor's race in Washington state and a Senate race in Minnesota though. It's not enough to win the vote on election day. You need a good team of lawyer's to win the recount.

Re:Courts are supposed to be predictable (1)

Xayma (892821) | more than 2 years ago | (#38037382)

The Senate race in Minnesota was a mandatory statewide recount. The Democrats didn't ask for it, and they certainly didn't focus on only Democratic precincts. Getting within 200 votes is hardly a Democratic strategy, I imagine they focus on winning by more than 0.5%

Re:Courts are supposed to be predictable (4, Insightful)

Attila Dimedici (1036002) | more than 2 years ago | (#38036812)

Just look at the Bush v. Gore decision where they decided that one man one vote meant that enough votes were left untallied to effectively hand the election to Bush because they were concerned that too much attention was being paid to those particular ballots.

That is a complete misrepresentation of the Supreme Court decision. The U.S. Supreme Court ruled that the Equal Protection clause was violated by the recount called for by the Florida Supreme Court and that there was not enough time to conduct a recount that met the Equal Protection clause. A significant factor in their decision was that the end result of any Constitutional decision by them would be the same as the result of their ruling. If the Supreme Court had not ruled as it had, it is probable that the Florida legislature would have appointed a group of Electors who would have voted for Bush (according to the U.S. Constitution, each state legislature decides how that state's Electors are chosen). If that had happened it is quite possible that the end result would have been that there were no Electors from the state of Florida (there are several other scenarios in which this would have happened). In which case, the election would have been decided by the U.S. House of Representatives, who would have chosen Bush. Finally, the fact of the matter is that several groups that consistently favor the Democratic Party counted the ballots in Florida later and found that under no reasonable standard would Gore have won the state.

Re:Courts are supposed to be predictable (-1)

Anonymous Coward | more than 2 years ago | (#38038096)

The U.S. Supreme Court ruled that the Equal Protection clause was violated by the recount called for by the Florida Supreme Court and that there was not enough time to conduct a recount that met the Equal Protection clause.

You forgot the part where the Supreme Court first stopped the recounting because of the irreparable harm that would occur to Bush were the recount to find Gore the winner and the court found the recount invalid. For some reason, the irreparable harm that actually occurred to Gore was not a concern to the conservative majority. Nice catch-22 they set up there.

Furthermore, it was found that under any standard, a statewide recount would have found for Gore. [wikipedia.org] Also, it was conveniently determined that a statewide recount using a common standard could not be done even though this would have been the most fair to all parties. Fairness was not the top concern of the Supreme Court at this time. Neither was legality or precedent.

Re:Courts are supposed to be predictable (1)

Amorymeltzer (1213818) | more than 2 years ago | (#38036780)

Quite right, but that's not what these researchers found. Instead, they found that a given justice could be modeled solely on his or her eight colleagues. Not the case, not the law, but how the others voted.

In reality, it's not surprising. Harvard, Yale, and Columbia dominate the SCOTUS, and right now New York City has four of the nine. Take what you will from that, but toss in a two-party system and one really wouldn't expect to see a wide diversity of opinions on the court. If eight have made up their minds, it should be clear how the last will vote.

Re:Courts are supposed to be predictable (0)

Anonymous Coward | more than 2 years ago | (#38036958)

"We took a panel of nine eminent doctors and had them examine thousands of patients. We found that when several of the doctors had arrived at the same diagnosis, there was a high statistical likelihood that the other doctors would also independently arrive at that diagnosis."

Re:Courts are supposed to be predictable (1)

tetromino (807969) | more than 2 years ago | (#38037074)

Note quite. Lower level courts, the ones that hand out the final decision for the vast majority of everyday cases, are supposed to be predictable. But the Supreme Court is supposed to only handle appeals for the most difficult and borderline cases where nobody can really tell in advance what the right decision ought to be. Your local traffic court's decisions are supposed to be very predictable, but it's truly disturbing if an algorithm can accurately model SCOTUS.

Re:Courts are supposed to be predictable (1)

rollingcalf (605357) | more than 2 years ago | (#38037900)

Predictability isn't a good thing when it's based on biases. Suppose the court always rules against black men who appealed death sentences, but always granted clemency for white men who did the same.

Predictability based on looking at the Constitution would be a good thing. But predictability based on looking at which president appointed which justice is predictable bias, which is undesirable for a court.

They aren't supposed to evaluate only on merits. (1)

Aquitaine (102097) | more than 2 years ago | (#38036662)

They are supposed to evaluate based on the Constitution of the United States.

'On the merits' is arbitrary because whomever is evaluating will do so according to their own ideas of good and bad, of what works and what doesn't. In some cases, this kind of freedom to decide on whatever basis you like can be interesting or liberating, but it's not the point of SCOTUS.

Obviously there will still be their own ideas on good and bad even with an agreed-upon standard, but having to explain your legal reasoning relative to the Constitution versus just having to explain your reasoning are two very different tasks. Writing a good dissent is just as challenging as writing a good ruling.

Re:They aren't supposed to evaluate only on merits (-1)

Anonymous Coward | more than 2 years ago | (#38036768)

We need a president to lead by example, Ron Paul will follow the constitution 100%

Re:They aren't supposed to evaluate only on merits (1)

AK Marc (707885) | more than 2 years ago | (#38036908)

He'll do what everyone else did before him. Follow the parts he likes, and ignore the rest. Not even the Libertarians want a strict constitutionalist. Their ideology is a little closer to that, so it seems that way sometimes, but if there is a conflict between the Constitution and their ideology, the ideology will trump the Constitution at every turn.

Re:They aren't supposed to evaluate only on merits (1)

Jane Q. Public (1010737) | more than 2 years ago | (#38037634)

In what respect do you think Libertarians don't want a strict constitutionalist? I am just curious.

Re:They aren't supposed to evaluate only on merits (1)

Anthony Mouse (1927662) | more than 2 years ago | (#38036854)

They are supposed to evaluate based on the Constitution of the United States.

The problem is that the Constitution doesn't actually tell you the answer in 99% of cases. Take the case currently up for decision about the police attaching a GPS tracker to the suspect's car without a warrant. The Fourth Amendment says this:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It doesn't say anything specifically about GPS tracking devices. Whether it applies to them is entirely a matter of opinion. It's a policy question. There are arguments for both sides. There is no right or wrong answer until such time as the SCOTUS tells us what it is.

The idea that courts should interpret the law in any kind of consistent way is incompatible with allowing the legislature to pass ambiguous laws. Every ambiguity has to be resolved one way or another and the choice in the case of first impression is largely discretionary, which means it gets made according to the judge's political preferences.

The only way to stop that would be for the court, rather than interpreting the law, to instead strike down any piece of legislation containing an ambiguity and make the legislature go back and fix it. That would keep the legislature in charge of all the policy decisions. Whether putting the legislature in charge of all the policy decisions is a good idea is a different question.

Re:They aren't supposed to evaluate only on merits (1)

Jane Q. Public (1010737) | more than 2 years ago | (#38037624)

"The problem is that the Constitution doesn't actually tell you the answer in 99% of cases."

Nonsense.

"It doesn't say anything specifically about GPS tracking devices."

It doesn't need to. In what way would you say that tracking someone 24 hours a day, without their consent or a warrant, is "reasonable"? The fact is that it isn't reasonable. Tracking someone in this manner is NOT the same as just observing them. As one attorney put it, this kind of tracking allows police to infer all kinds of things about a citizen that are simply none of their business, such as who you do business with, who your girlfriend is, who you associate with politically, and so on.

Such tracking is, in fact, a rather outrageous intrusion into someone's private life. There is nothing at all reasonable about it.

Re:They aren't supposed to evaluate only on merits (1)

fyngyrz (762201) | more than 2 years ago | (#38037942)

Furthermore, GPS is the direct technological equivalent of going straight to the objective of a search: "Where is this person's vehicle?" "...it's right there!"

That makes the active technology -- that is, a running GPS feeding vehicle location info to the authorities -- exactly the same as a constantly updated, successful search for a citizen's effect -- a vehicle -- and often, their person as well.

Therefore, said GPS based search requires a warrant; a warrant requires probable cause, supported by oath or affirmation, and a specific description of the place to be searched, and the things to be seized.

No warrant? Un. Fucking. Constitutional.

Elementary.... (1)

Anonymous Coward | more than 2 years ago | (#38036702)

... my dear WATSON. ;)

Paging Oliver Wendell Holmes, Jr. (1)

brokeninside (34168) | more than 2 years ago | (#38036786)

From "The Path of the Law" in Harvard Law Review volume 10 (1897).

When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.

In other words, law is nothing more than a prediction of how judges will rule.

How is this a bad thing? (1)

J'raxis (248192) | more than 2 years ago | (#38036792)

So, in other words, the judges on the Supreme Court are consistent: So consistent that you can determine exactly what "ideology" (read: principles) are guiding their decisions and replace them with a rote algorithm that would make decisions based on the same principles. Even if I don't agree with a judge's principles, I'd rather see them follow some principle consistently, rather than have them act like "flip-flopping" politicians, taking whatever position is pragmatic, expedient, or profitable at the moment.

Re:How is this a bad thing? (1)

AK Marc (707885) | more than 2 years ago | (#38036890)

The problem is that the principles they should be following are the law, not their prejudices. They place their ideology above the law. Flip flopping based on the arguments is what they *should* be doing. Instead, they ignore the facts of the case to make a decision contrary to the law based on their personal opinion, and you think that's better than listening to the facts?

Re:How is this a bad thing? (1)

brokeninside (34168) | more than 2 years ago | (#38037436)

And what is the law?

Few legal theories accept legislation as written by legislators as anything more than an "input" to the law. The most extreme version is Legal Realism championed by Oliver Wendell Holmes, Jr. and Richard Posner. In their view, law is nothing other than a prediction of how judges will rule. To predict how judges will rule, you do have to take into consideration the law as written. This is why legislation is an "input" to the law rather than the law itself.

Determining how often, if at all, particular judges will use ideology as an "input" to the law, then, is little different from determining how particular judges will view precedent, etcetera.

Granted, most legal theories aren't as extreme or as blunt as Legal Realism. But virtually none outside of a the classical form of legal positivism take legislation as "the law."

Re:How is this a bad thing? (1)

Jane Q. Public (1010737) | more than 2 years ago | (#38037786)

You have missed the point completely.

There is only room for one "principle" in a courtroom, and that is the principle of law. Any other "principles" the judges bring to the table have no place there, at all.

The whole point was that this demonstration showed that whatever "principles" the justices have been following, the law wasn't one of them. Or at least, hardly the most influential of them.

You don't want an "ideally independent" judge (-1)

Anonymous Coward | more than 2 years ago | (#38036816)

Supreme court judges are supposed to judge based on the Constitution, NOT their "ideals".

I know this doesn't happen IRL, but it's their job.

Unfortunately, now we have 2 new judges who think the Constitution itself is bad and would rather issue rulings based on foriegn law or their personal opinions.

How to predict Thomas? (0)

Anonymous Coward | more than 2 years ago | (#38036840)

You'd need a strong AI that evaluated the decision on what would make the highest number of people suffer.

The man's own autobiography reveals him to be a nihilistic misanthrope whose every waking moment is dominated by seething rage and spiteful vindictiveness toward whole social classes of everyone who he perceives to have wronged him.

This is informative how? (4, Informative)

Hartree (191324) | more than 2 years ago | (#38036868)

I used to work with a group that simulated the folding of proteins.

You'd take an assortment of protein sequences and train a neural net on how they folded. Then you try to use that to predict the folding of another different protein that wasn't in the set you trained it on.

But, in this case, they don't try to predict the behavior of an independent case, they use it to predict the behavior of one of the 8 items (justices) they trained the simulation on. That's fine as an exercise in simulation, but using it to reach conclusions on intent and bias is a real reach. I suspect the journalists hyped that part of it a lot more than the researchers themselves.

That's underwhelming enough as is. But what do you use as a measure of how "independent" a judge is?

Assuming no relationship between decisions is ludicrous. On many items that aren't terribly controversial, Ginsburg and Scalia, for example, would rule similarly just because they are trained judges with a background in US law.

Similarly, you wouldn't be surprised if Krugman and Friedman agreed on the proper answer to a question from an Econ 101 textbook, regardless that they would differ massively on more complex issues.

Add to that, the Supreme Court doesn't get the expected and routine "no-brainer" type decisions. It's where the ones with thorny legal interpretation and constitutional issues end up.

I'd be really surprised if you didn't have a correlation between how one particular justice votes and how the rest of the justices vote.

Re:This is informative how? (2)

brokeninside (34168) | more than 2 years ago | (#38037406)

Unlike Friedman and Milton (who actually agree on more macroeconomic issues than the disagree over), judges frequently have completely different ideas on what law is.

To mention just a few positions:

  • legal realism: law is nothing more than the prediction of how judges will rule (Oliver Wendell Holmes Jr., Richard Posner, etc.)
  • classical legal positivism: law is nothing more than the commands of a sovereign (Jeremy Bentham, John Stuart Mill)
  • modern legal positivism: law is what emerges out of a professional legal class (legislators, judges, lawyers, police, etc.) which are accepted by the citizenry in general as the makers of the law (HLA Hart, Joseph Raz)
  • natural law: law is a human implementation of a transcendent moral code (Lon Fuller, John Finnis)

And that doesn't even get into the question of interpretations of how to interpret the law. The question of how to interpret the law can only be considered once one determines what it is that the law is.

So, yes, it is surprising that there is any sort of correlation. I've not looked at the Supreme Court level, but in general, the best "scientific" studies that have tried to find any patterns in legal rulings have successful prediction rates that are indistinguishable from chance.

You're joking, right? (1)

Hartree (191324) | more than 2 years ago | (#38037846)

Yes, I'm quite aware of the philosophical differences of judges and that they assume different bases for law.

But look at what actually happens. They often reach the same conclusions regardless.

It's not the only field that happens in. Example: Look at physics. Bohr and Everett disagreed fundamentally on what the nature of quantum reality was. And yet, they would calculate the exact same results.

As the next post points out (mythicalreptile), last term better than half the decisions were unanimous.

Are you really saying that in 82 (cases) trials of flipping 8 coins in each case you'd expect you'd expect all to come up either heads or tails more than 50% of the time? That's what being uncorrelated and no better than chance and yet leading to this result means.

Of course there are going to be correlations. You have human beings with similar backgrounds on the bench. Humans you may not like, but regardless they're going to behave like humans and come to the same conclusions more often than random. If that weren't the tendency, how would we even begin to see the level of agreement and organization we see in any society?

Forgive me, but use your head.

Re:This is informative how? (2)

LargeMythicalReptile (531143) | more than 2 years ago | (#38037616)

Assuming no relationship between decisions is ludicrous. On many items that aren't terribly controversial, Ginsburg and Scalia, for example, would rule similarly just because they are trained judges with a background in US law.

[...]

I'd be really surprised if you didn't have a correlation between how one particular justice votes and how the rest of the justices vote.

Exactly. [amazonaws.com] (PDF)

TL,DR:
Last Supreme Court term,
-Almost half of all Supreme Court decisions were unanimous
-The two Justices who disagreed most frequently in judgment were Ginsburg and Alito--and they still agreed with each other noticeably more than half the time (62.5%). Ginsburg and Scalia, in your example, agreed in judgment 65% of the time.
-That said, there is at least some truth to there being a "liberal wing" and a "conservative wing" (with Kennedy being the "swing vote"): of the 16 cases that were decided 5-4, 14 of them were Roberts-Scalia-Thomas-Alito vs. Ginsburg-Breyer-Sotomayor-Kagan with Kennedy casting the deciding vote. But a number of the lineups are more interesting.

The Justices are highly educated professionals, and as such agree with each other a lot of the time about what the law actually says. None of them is blindly ideological--but just the same, they do have their individual opinions about how the law should be interpreted, so some level of ideology is certainly present.

Obvious for the last 100 years (4, Interesting)

AK Marc (707885) | more than 2 years ago | (#38036878)

I liked my time in law school. Nothing pissed off a law-worshiper more than pointing out that the Supreme Court was a means to code unreasoned opinion into law, as the decisions use law to justify opinions, the opposite of what the courts assert (where they say they come to their opinions through examining the law, rather than force their personal opinions into law). The legal experts have been able to predict not only the direction in which they vote, but also the reasons they would give. But it's interesting to learn that an algorithm is sufficient, with no analyzation of the facts and law necessary.

News: well-observed phenomena are predictable (1)

tverbeek (457094) | more than 2 years ago | (#38036932)

'We find that Supreme Court justices are significantly more predictable than one would expect from "ideally independent" justices in "ideal courts,"' that is, free agents independently evaluating cases on their merits, free of ideology, the study said."

That's because the Supreme Court isn't simply the last court of appeals. Deciding cases on their individual merits is what the rest of the judicial system is for. The Supremes don't accept cases because the facts are in question, but rather because the law is in question. Determining what the law should mean is an inherently ideological question, which is why political ideology has been a litmus test for Supreme Court appointments for so long.

Re:News: well-observed phenomena are predictable (1)

Fjandr (66656) | more than 2 years ago | (#38037426)

They also accept cases based on the process being in question, which is just as important (and sometimes more so) as nailing down questions of law.

Re:News: well-observed phenomena are predictable (1)

fyngyrz (762201) | more than 2 years ago | (#38037978)

Determining what the law should mean is an inherently ideological question

No. It's a constitutional question. They take an oath that effect. The problem is that the entire collection of SCOTUS judges we have at present are batshit insane and neither understand the constitution, or take the oath they gave with any degree of seriousness.

huge problem (1)

udachny (2454394) | more than 2 years ago | (#38036962)

the courts should be totally predictable based on the LAW, but instead nowadays they are totally predictable based on their political affiliations and based on the money trail.

In case of SCOTUS the courts SHOULD be replaced with a computer program that just compares the case to the Constitution and always sides with the Constitution.

That would fix so many problems in US, it's not even funny. SCOTUS has been failing the US for over 100 years now.

Re:huge problem (1)

Fjandr (66656) | more than 2 years ago | (#38037510)

Courts of original jurisdiction are bound by the law. Appellate courts, up to and including the Supreme Court, are not bound by a law they have not previously addressed. On the contrary, the law within an appellate court's jurisdiction is bound by the decision of the court issuing it.

Where's the Spanish view? (0)

DNS-and-BIND (461968) | more than 2 years ago | (#38037020)

Seriously, what the hell is wrong with these people that they spend time predicting the actions of a bunch of weirdo foreigners? Don't they have enough to to in Spain?

What would be the Spanish reaction if Americans did this to them? I'm shooting in the dark here but I'm sure 'colonial oppression' would be in there somewhere.

I can predict at least one of them... (0)

Anonymous Coward | more than 2 years ago | (#38037106)

Thomas.vote = Scalia.vote

Capture Scalia's Dickishness With a Program? (0)

Greyfox (87712) | more than 2 years ago | (#38037130)

If you can capture Scalia's dickishness with a program then really half of us don't even need to post to Slashdot anymore either. They could just write up a few programs ranging from "Natalie Portman Troll" to "Snarky Sarcastic Guy" (And, apparently "Beekeeper") and just post every story with all the comments already in place!

biologists? (0)

Anonymous Coward | more than 2 years ago | (#38037142)

You know, there's an entire literature on this in political science, and has been for 50+ years. Nice that they cite one or two things from it.

Maybe I should go publish some biology in the APSR.

- a political scientist

Its pretty easy (0)

Anonymous Coward | more than 2 years ago | (#38037178)

Scalia, Roberts, Alito, and Thomas vote for anything that increases police or corporate power, and against anything for the little guy. Not a single time has Roberts voted against anything wrt to limiting a corporation's power. Its pretty sad really, corporate hacks the lot of them.

How complicated is it to write an If statement? (0)

Anonymous Coward | more than 2 years ago | (#38037274)

Why is this a big deal? These so-called jurists are so completely predicable that the outcomes, and usually the vote margins, can be accurately predicted by anyone with two functioning brain cells! Or an algorithm that is "Hello World" simple.

Didn't see that one coming. (1)

Torodung (31985) | more than 2 years ago | (#38037416)

So basically, what we're saying here is that the U.S. Supreme Court failed the Turing test? Really? Please tell me, at the least, that they are Turing complete.

Overpaying for brains (1)

Bosconian (158140) | more than 2 years ago | (#38037478)

"Yes, an electronic brain," said Frankie, "a simple one would suffice."

"A simple one!" wailed Arthur.

"Yeah," said Zaphod with a sudden evil grin, "you'd just have to program it to say 'What?' and 'I don't understand.' and 'Where's the tea?' --- who'd know the difference?"

"What?" cried Arthur, backing away still further.

"See what I mean?" said Zaphod and howled with pain because of something that Trillian did at that moment.

"I'd notice the difference," said Arthur.

"No you wouldn't," said Frankie mouse, "you'd be programmed not to."

[Thank you forever D. Adams.]

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