Federal judges: drift happens
Cass Sunstein, now a Harvard law professor, conducted a massive study with colleagues when he was on the faculty at the University of Chicago Law School, on ideological diversity in federal judicial panels. Sunstein recognized at the outset that the U.S. Courts of Appeals are “an extraordinary and longstanding natural experiment” in diversity. Appellate court panels are composed of three judges randomly drawn from that circuit’s pool. Each circuit’s pool includes life-tenured judges chosen (when an opening occurs or Congress recognizes the need for additional judges) by the sitting president. In any particular appeal, you could get a panel of three Democrat appointees, three Republican appointees, or a two-to-one mix in either direction.
The study, encompassing over 6,000 federal appeals and nearly 20,000 individual votes, found, not surprisingly, that judicial voting generally followed political lines. Pure, unaided open-mindedness, even by life- tenured judges sworn to uphold the law, is hard.
When there was political diversity on the panels, the researchers found several areas where that diversity improved the panel’s work. Even though, in most cases, two politically similar judges could dictate the panel’s outcome, there were significant differences between heterogeneous and homogeneous panels. A single panelist from the other party had “a large disciplining effect.”
They found, for example, “strong evidence of ideological dampening” in environmental cases. Democrat appointees, who overall voted for plaintiffs 43% of the time, voted for plaintiffs just 10% of the time when sitting with two Republican appointees. Republican appointees, who overall voted for plaintiffs 20% of the time, voted for plaintiffs 42% of the time when seated with two Democrat appointees. This held up across most of the twenty-five categories of cases in which they had a sufficiently large sample to reach a conclusion.
The authors concluded that the result endorsed the importance of exposure to diverse viewpoints: “What is necessary is reasonable diversity, or diversity of reasonable views . . . and that it is important to ensure that
judges, no less than anyone else, are exposed to it, and not merely through the arguments of advocates.”
Sunstein’s group found that federal appellate judges need the diverse viewpoint of an opposing-party appointee. Judges, they found, followed the human instinct of succumbing to groupthink. “Our data provide strong evidence that like-minded judges also go to extremes: the probability that a judge will vote in one or another direction is greatly increased by the presence of judges appointed by the president of the same political party. In short, we claim to show both strong conformity effects and group polarization within federal courts of appeals.”
The growing polarization of the Supreme Court is a case in point. Each justice now has four clerks, all of whom have similar credentials: top-of- the-class graduates of top law schools, law review editors, and clerkships with federal appeals court judges. The clerks, over the years, have played an increasingly important role in helping the justices with their intellectual workload, discussing details of cases and drafting initial versions of opinions.
Prior to the appointment of Chief Justice Roberts in 2005, it was an informal badge of honor, especially among some of the conservative members of the court, that they hired clerks with ideological backgrounds that differed from theirs. Bob Woodward and Scott Armstrong, in The Brethren, described how Justice Powell “prided himself on hiring liberal clerks. He would tell his clerks that the conservative side of the issues came to him naturally. Their job was to present the other side, to challenge him.
He would rather encounter a compelling argument for another position in the privacy of his own chambers, than to meet it unexpectedly at conference or in a dissent.”
Chief Justice Burger hired equally from the ranks of former clerks of Democrat- and Republican-appointed judges. Chief Justice Rehnquist, who served on the court with Burger and succeeded him, arrived at the court suspicious of the role liberal clerks could have in influencing his opinion.
According to The Brethren, however, that attitude disappeared almost immediately. Rehnquist believed “the legal and moral interchanges that liberal clerks thrived on were good for the Justices and for the Court.”
Justice Scalia, when he served on the D.C. circuit and in his early years on
the Supreme Court, was known for seeking out clerks with liberal ideologies.
As the Supreme Court has become more divided, this practice has all but ceased. According to a New York Times article in 2010, only Justice Breyer regularly employed clerks who had worked for circuit judges appointed by presidents of both parties. Since 2005, Scalia had hired no clerks with experience working for Democrat-appointed judges. In light of the shift in hiring practices, it should not be so surprising that the court has become more polarized. The justices are in the process of creating their own echo chambers.
Justice Thomas, from 1986 to the time the article was written, was 84- for-84 in hiring clerks who had worked for Republican-appointed judges.
Not surprisingly, according to data compiled from the Journal of Law, Economics, and Organization, he is the justice furthest from the ideological center of the court, much further right than the most liberal-leaning justice (Sotomayor) is left.
Thomas once said, “I won’t hire clerks who have profound disagreements with me. It’s like trying to train a pig. It wastes your time, and it aggravates the pig.”* That makes sense only if you believe the goal of a decision group is to train people to agree with you. But if your goal is to develop the best decision process, that is an odd sentiment indeed.
This polarization warns against forming a decision group that is a collection of clones who share the same opinions and knowledge sources we do. The more homogeneous we get, the more the group will promote and amplify confirmatory thought. Sadly, that’s exactly what we drift toward. Even Supreme Court justices do that. We are all familiar with this tendency in politics; it’s the complaint on both sides of the political aisle.
Conservatives complain that liberals live in an echo chamber where they just repeat and confirm their point of view. They aren’t open to new information or ideas that don’t fit what they already believe. That’s the exact same criticism liberals have of conservatives.
Although the Internet and the breadth of multimedia news outlets provide us with limitless access to diverse opinions, they also give us an unprecedented opportunity to descend into a bubble, getting our information from sources we know will share our view of the world. We often don’t even realize when we are in the echo chamber ourselves,