Franke: Supreme Court Independence
by Mark Franke
Every year the Gallup organization conducts an opinion poll to determine the level of confidence Americans have for major institutions. It should come as no surprise that news organizations rank at the bottom with Congress and educational institutions also scoring high negatives.
The confidence level in the Supreme Court of the U.S. is much more nuanced and not easy to decipher. Ever since the contentious Robert Bork nomination, names advanced by the president have become lightning rods for partisanship in the Senate and among the public.
Are the justices as clearly partisan in their rulings as most Americans appear to believe? The charges from the party in opposition that the current nominee is an extremist are so commonplace that one wonders if everyone is reading from a prepared script.
So do these justices deliver the partisan goods? That is a difficult question to answer objectively but fortunately two professors at the University of Michigan have developed a formula for assessing the ideological thinking of each justice. Called the Martin-Quinn Score after the two researchers, the model attempts to place justices based on a conservative-liberal continuum that analyzes past votes going back to 1937. Without going into the math involved, mainly because I’m not sure what the Markov chain Monte Carlo method is, a layman can look at an interesting graphic display in Wikipedia or at the author’s website to get a quick sense of voting patterns.
Essentially, it works like this. Drs. Martin and Quinn select court cases that can be divided along liberal-conservative lines. Justices are then tracked over their careers on their propensity to side with the conservative side or liberal side of the issue. The scoring runs along a simple scale of minus eight for consistently liberal to plus eight for consistently conservative. A score of zero puts that justice right in the middle, presumably conservative one-half of the time and liberal the other half.
The model is hardly perfect, being better at analyzing past decisions rather than predicting future ones but it is still quite useful in showing the consistency, or the lack thereof, in each justice’s opinion in a select number of decisions that have clear liberal versus conservative positions.
What the Martin-Quinn scores show is surprising, hardly what one would expect given the assumed bias partisans of either side charge against the other. If one restricts one’s knowledge to national headlines, there should be a solid six to three conservative majority with the six Republican appointed conservatives voting as an ideological block. The data do not support that.
The most consistent justice on a left-right axis is the liberal Sonia Sotomayer, scoring minus four on the scale. The most conservative justices, Clarence Thomas and Samuel Alito, fall between plus two and three. Next are the two liberals, Elena Kagan and Ketanji Brown Jackson, scored at minus two. The remaining four Republican appointed justices are all at a conservative plus one or below, the middle ideological ground. Clearly these four didn’t understand their marching orders, if the common wisdom is to be believed.
So if you are keeping score at home, it’s Liberals three, Conservatives two and Middle-of-the-Roaders four.
The major problem here is that “We, the People,” expect the Supreme Court to be slavishly directed by the current majority’s will in its decisions. We reduce it to a mini congress with justices expected to “vote” the way we want regardless of whatever legal or constitutional issue may be at stake. In other words the last thing we want from the Supreme Court is its independence from the political process, let alone incisive legal examination of the case before it.
So the salient question is obvious. If the Supreme Court isn’t protecting our liberties, who is? If it isn’t checking the excess of the legislative and executive branches of government, who will? If it doesn’t give priority to the Constitution and our natural rights, what protection do we have against tyranny of the majority?
It is not the duty of the Supreme Court to determine the best laws for the nation. Its role is to determine the constitutionality of laws passed by Congress and of administrative actions taken by the president and the executive branch. The will of the people in a democracy is expressed at the voting booth as their representatives are chosen. The Supreme Court must stand above that to protect those voters from the overreaches of Congress and the President. It really is all about court independence.
I guess I shouldn’t expect the Supreme Court to be exempt from the political rancor of our brave new world. Questions asked during Senate confirmation frequently are attempts to trap nominees into a judicial corner. The Martin-Quinn scores show how unsuccessful that tactic is. Our republic is stronger for it.
Mark Franke, M.B.A., an adjunct scholar of the Indiana Policy Review and its book reviewer, is formerly an associate vice-chancellor at Indiana University-Purdue University Fort Wayne.
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