One view is that he will be a Scalia clone or near-clone. But Gorsuch has hinted, in opinions and speeches, that he believes that Chevron was wrongly decided, and that the nondelegation doctrine should be revived. He also has, on several occasions, approvingly cited Justice Thomas’ concurring opinion in Association of American Railroads, which expresses similar sentiments. Scalia defended Chevron; Thomas criticizes it. If Gorsuch turns out to replicate Thomas rather than Scalia, this could make a difference, yes? We would now have two votes on the Court, rather than one, that firmly oppose the administrative state.
No. My friend and coauthor Lee Epstein ran the numbers, which you can see above. (Note: the data are preliminary.) Whatever their doctrinal differences, Scalia and Thomas are themselves clones in administrative law cases. Colleagues tell me that while championing Chevron, Scalia evaded Chevron deference (at least, when the regulation in question advanced liberal goals) by finding statutes to be clear that others find ambiguous. A clone of Thomas is a clone of Scalia.
The graph shows the win rate of presidents in the Supreme Court. The historical win rate was well over 60%, reaching nearly 80% during the Reagan administration. It has declined steadily since then, bottoming out at close to 50% for Obama. It is easy to predict that Trump will do even worse. A 20 year trend begs for explanation.
What could it be? Lee Epstein and I evaluate four hypotheses.
- Increasing ideological distance between the president and median justice? No.
- A Court beating back executive overreach? No.
- A Court engaging in overreach itself? Maybe.
- The rise of a specialized Supreme Court bar? Maybe.
We’ll need to do more work in order find out for sure. Selection effects are complicated. But this paper presents some initial findings.
Or so it appears. The CFscore on the y-axis measures the clerk’s ideology (based on donations to political campaigns) from liberal (-2) to conservative (+2). Scalia is just an example but the trend is notable; the other justices are equally bad (or good, depending on your point of view). And it turns out that lower courts follow the pattern though not quite as strongly. From a new paper by Bonica, Chilton, Goldin, Rozema, & Sen.
I’ve read a lot of claims about Scalia’s influence over the development of the law. His fans insist that even if Scalia’s position did not always (or even usually) prevail in the major cases heard by the Court, his theories of constitutional and statutory interpretation have forced other justices and lower-court judges to write analytically tighter opinions. For reasons I’ve given elsewhere, I’m skeptical. But these things are heard to measure. Is there something measurable we can look at?
According to Jeffrey Toobin,
During Scalia’s first two decades as a Justice, Chief Justice William H. Rehnquist rarely gave him important constitutional cases to write for the Court; the Chief feared that Scalia’s extreme views would repel Sandra Day O’Connor, the Court’s swing vote, who had a toxic relationship with him during their early days as colleagues.
If true, this seems like a damning indictment. A justice who, in insisting on the purity of his principles or perhaps in indulging in the charms of invective, gives up the opportunity to shape the law does more harm than good for his followers. To see if Toobin’s claim is true, I collected a list of “landmark cases” from Wikipedia (where else?), and asked an RA to count up the number of majority opinions written by each justice starting with Scalia’s first term in 1986, and excluding the justices who left the bench in the early 1990s. Normal empirical-research caveats apply. Here are the results:
Scalia doesn’t look too bad. No surprise that the two chief justices would reserve many of the most important cases for themselves, and that Kennedy and Stevens—perennial swing-voters—would devour the lion’s share of the others. Still, in a right-leaning court Scalia hardly distinguishes himself.
Scalia has also been on the bench a lot longer than the others. Adjusting for years on the bench, one gets a more accurate view of his capacity to influence the law.
Scalia does worse than Alito, his junior by many years, and barely surpasses Kagan, another junior who is hampered by her position on the left. Will Scalia go down in history as a justice whose ability to influence the law fell somewhere between that of Souter and O’Connor?
Yes. Lee Epstein and I report statistical results in our new paper. A justice is more likely to vote for the government when the president who appointed him is in office, than when subsequent presidents are in office–even when those subsequent presidents are of the same party (and controlling for a bunch of other things).
The figure above suggests an interesting U-shaped time trend as well. The x-axis shows the initials of justices in chronological order. The y-axis shows a measure of preference for the government under the appointing president over subsequent governments. Note that the figure excludes Obama and Bush appointees because they have not yet served under a same-party president subsequent to the one who appointed them.
Two of my earlier graphs updated through last Friday (with corrections).
Subject as always to confirmation bias, I’m going to interpret the votes in this case as further support for my argument that the Republican appointees are fragmenting. It’s striking that both Roberts and Kennedy joined the liberals.
See my earlier posts on this topic. What is the explanation? Here are a few (overlapping) possibilities:
1. Kennedy and Roberts are more ideologically moderate than the other Republicans.
2. Roberts is concerned about the legitimacy of the court.
3. Only the Republican appointees take the law seriously, and so are willing to disagree with each other. The Democratic appointees march in lockstep because they care about outcomes.
4. Sunspots; the alignment of the stars; tidal forces.