Professor Maxwell Stearns of the University of Maryland School of Law recently posted an interesting new paper entitled "The Political Economy of the Roberts Court" on SSRN, see here. It is a provocative paper, and I would like to draw your attention to my lengthy analysis of the piece on SCOTUSblog, see here. For fans of social choice theory, this paper is right up your alley (though I am somewhat critical of the piece in my post). I have posted the abstract after the jump.
After eleven years, the longest period in Supreme Court history with no change in membership, the Roberts Court commenced in the year 2005 with two new justices. John Roberts replaced William Rehnquist as the seventeenth Chief Justice. And Samuel Alito replaced Associate Justice Sandra Day O'Connor. The conventional wisdom suggests that on the nine-justice Supreme Court, these two appointments have produced a single-increment move, ideologically, to the right. The two Chief Justices are assumed to occupy roughly the same ideological position. In contrast, whereas O'Connor was generally understood to have occupied the Court's centrist, or median, position, Alito was expected to continue to embrace the same general conservative judicial philosophy that characterized his fifteen-year career on the United States Court of Appeals for the Third Circuit.
It now appears that the Roberts Court is one justice shy of what conservatives had long hoped for, namely a core conservative majority that would ensure predictable rulings in key areas of constitutional law, including most notably abortion, equal protection, and criminal procedure. This Article will not dismiss this conventional wisdom. Instead, it will show that while this understanding is generally sound, it is also incomplete in a critical respect.
This Article will demonstrate that a foundational aspect of the political economy of the Roberts Court, one that is likely to have a profound influence on the manner in which that Court will set about to transform legal doctrine, has attracted surprisingly little attention. The increasingly prominent conservative center of gravity in the Supreme Court coincides with an overwhelmingly conservative set of federal circuit courts of appeals. While this coincidence of judicial phenomena is uncommon, it becomes more so when we add an important additional consideration. The Supreme Court is most likely motivated to alter those rules governing access to the federal judiciary, and ultimately to the Court itself, when these two factors coincide with a set of rules governing federal judicial access that undermines the Court's ability to pursue its emerging doctrinal mandate. This even rarer combination has happened only one prior time in the post New Deal period, and that was during the Warren Court.
This Article's thesis is ironic: From the perspective of the processes used to transform constitutional doctrine, the political economy of the Roberts Court is likely to prove closest to that of the Warren Court, the very Court whose historical legacy the emerging conservative bloc seeks to counteract. Specifically, the Roberts Court will be motivated to broaden standing and justiciability more generally, as did the Warren Court, as a means of promoting substantive doctrinal change in partnership with the increasingly ideologically aligned lower federal judiciary.
To support this thesis, this article develops and presents two new sets of data. Adapting the Martin-Quinn scoring system, the first data set tracks the ideological center of gravity and the stability of dominant coalition structures on the Supreme Court itself from 1937 through 2005. The second data set is the product of original research drawn from the Federal Judges Biographical Database, compiled by the Federal Judicial Center. These data track the ideological balance of the federal circuit courts, for each year from 1933 through 2006 based upon the party of appointing President. This Article transforms these two sets of data into a readily comparable form and presents them together in a chronological table covering the Supreme Court and circuit courts from 1933 through 2006.
This Article relies upon these data to explain the conditions under which the Supreme Court has historically developed and transformed its principal doctrinal gatekeeper, namely standing, in an effort to control developing constitutional doctrine in concert with the lower federal courts. The Article then places the Roberts Court in a broader theoretical and empirical perspective that tracks the Court's internal coalition structures and accounts for the historical relationship between ideological dominance on the Supreme Court and the majority of the federal circuit courts. The analysis helps not only in assessing the significance of the Roberts and Alito appointments, but also of potential future appointments in affecting doctrinal change.
The analysis supports the intuition that while we can plot the Court along a continuum and visualize a simple incremental movement one space ideologically to the right resulting from the Roberts and Alito appointments, we would be mistaken to assume a strictly linear relationship between such ideological increments and the incentives to move doctrine in a preferred doctrinal direction. Another one ninth incremental move in the Court will produce the incentives - and the opportunity - for far more than such an incremental move in the ideological direction of doctrine. This Article provides theoretical and empirical support for the thesis that as the Court moves further in a conservative direction, it will be motivated to relax the strict form of standing that characterized that doctrine in the Burger and Rehnquist Courts as a means of bringing about its desired doctrinal change.