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Is the Supreme Court a small legislature of nine unelected politicians? Some political scientists believe justices simply vote their policy preferences. But two political scientists from Washington, D.C.-area universities suggest a new approach to determining why justices vote the way they do, and they hazard a prediction on the upcoming health law challenge. “Political scientists have tended to argue that justices base their decisions largely on their policy preferences,” said Forrest Maltzman of George Washington University. “We were trying to empirically test the notion across a large universe of cases whether justices take seriously legal doctrines, such as stare decisis, and whether it constrains their actions. In their recent book, “The Constrained Court,” Maltzman and co-author Michael Bailey of Georgetown University find that the justices are constrained by legal doctrines and other political factors — a finding that one reviewer said “tosses a grenade” into how political scientists measure Court-related actions. “We are able to show justices do indeed take different doctrines seriously, and it does impact their decision-making and may lead them to act in a way not always consistent with their policy preferences,” said Maltzman. Their first and key task, explained Maltzman, was to find a way to separate legal doctrines from policy implications in decisions. They used positions taken by elected officials — presidents and members of Congress — on Supreme Court cases to pin down the policy implications of each case they reviewed. They then looked to see if the justices voted consistently or inconsistently with their political co-ideologues. If they part ways and vote more liberally when a precedent, for example, is liberal, or more conservatively when the precedent is conservative, then a legal effect for precedent is identified. “On a universe of cases that does not relate to deference to a legislative body, you line up Congress and the justices,” said Maltzman. “You say Samuel Alito matches this group of senators and House members. Then look at what is the effect when the question of legislative deference is in play. Can you see a change in effect by justice on the Supreme Court?” Maltzman and Bailey used their approach to measure the potential effect of three legal doctrines on justices since 1950: stare decisis, deference to Congress and strict protection of speech. “You have to have non-judicial actors making decisions on cases and you have to go ahead and have a set of cases that have particular legal doctrines in play or not,” explained Maltzman. “Lo and behold, we discovered justices constrain themselves by doctrines. It’s not perfect. This is what I tell my students: you and I live by various doctrines. I will never ever lie, for example. If that’s my doctrine, I will sometimes make decisions that will violate what is truly in my interest to uphold this doctrine. Justices do the same with legal doctrines, and occasionally we violate them too.” In their book, they show that almost every justice deviates from their policy preferences in favor of some legal doctrine, such as respect for precedent, but the justices differ in how much they value that doctrine. They noted how Chief Justice William Rehnquist supported Miranda rights in Dickerson v. U.S. based on precedent and despite his longstanding disagreement that those rights were constitutionally based. The two authors recently applied their approach to the pending challenge to the Patient Protection and Affordable Care Act to estimate the probability that each justice would vote to strike down the law if ideology were the only factor. They found that based on policy preferences alone, five justices, including Anthony Kennedy, would vote to overturn the law in a 5-4 decision. But Maltzman and Bailey think policy preferences alone will not determine the outcome of the controversial challenge. Precedents on the commerce clause are likely to be key. Selecting Wickard v. Filburn and Gonzales v. Raich as most relevant, they calculated each justice’s vote based on their tendency to defer to precedent. This time, the outcome changes. The behavior of Kennedy, who defers to precedent much more than Justice Clarence Thomas, shifts dramatically from the ideological-based model, they found, to only a 46% likelihood of overturning the act when precedent is a factor. Chief Justice John Roberts Jr. and Justice Alito shift somewhat. The probability of striking down the law becomes much lower, 30%. Based on their approach, Maltzman and Bailey predict a 6-3 or 7-2 vote to uphold the law. (Click here for a more detailed explanation of their prediction.) “We stuck our necks out a little bit,” said Malztman. “We feel the law will be upheld. If we’re wrong, we’ll justify our being wrong.” If they are wrong, he explained, there may be other legal values, such as states’ rights, that dominate. Their approach and findings are significant, Maltzman explained, because “in the world of political science, we try to be predictive. I think this helps us to understand there is not a uni-causal explanation of how justices make decisions.” Their approach, he added, “violates the political science textbook explanation of Supreme Court decision-making. Any textbook says judges make decisions based on policy preferences. I just think it’s wrong and I’m hopeful it will change how students and others think about the Court.” Marcia Coyle can be contacted at [email protected].

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