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PaperclipPerfector  5mo ago (text post)   23862 thread views

Culture War Roundup for the week of June 10, 2024

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Did you see this opinion piece just two weeks ago that mathematically broke down voting patterns? They use some data to show there's a bit more of an L-shaped 3-3-3 split on the court (with they consider to be both an institutionalist as well as ideological axis), and also mention that not very many of the cases overall show the traditional 6-3 explicitly partisan split vote. In fact only 5 of 57 cases landed this way. Related, they also argue that how "important" and "divisive" a case is (per the media) actually turns out to be even more highly subjective than commonly thought.

NB: split and analysis was from the 2022-23 session

NB2: The groupings they found are Sotomayor - Kagan - Jackson; Roberts - Kavanaugh - Barrett; Alito - Gorsuch - Thomas

Some friends and I discussed this and propose the following improvement: 3-3-2-1. Keep the groups almost the same, except cleave Gorsuch into an idiosyncratic group of one. Thomas and Alito seem extremely compatible, but Gorsuch is the member of the court most often beating his own drum. And of all the conservative justices he's the one most likely to cross over to the liberal side, for reasons conservatives will unusually respect.

Do you think Gorsuch is his own group, or just happens to have a few "pet issues" that he individually feels strongly and deviantly about? I think the article pointed out he often goes his own way in Native American cases, for example.

Gorsuch is I think the only one formally trained in philosophy. He has a very interesting mind that creates unique opinions. His influence will be profound. Doesn’t hurt that he is a good writer.

I don't think I'll ever forgive him for Bostock, but he's easily the best Justice since Scalia, and as good a replacement as anyone could have hoped for.

Interesting article! This finding in particular caught my attention:

The three liberal justices voted together in fewer than a quarter of the non-unanimous cases, and the six conservatives voted together only 17 percent of the time.

This suggests the pattern I noticed is real, although the size of the disparity is not huge. However, I would still like to see a similar voting breakdown focused only on cases with strong culture war salience. The court decides a large number of cases each term that don't have any obvious partisan ramifications. It may be the case that the justices don't particularly care about ideological conformity in such cases, but are more likely to vote as a block on cases involving controversial partisan issues. And the conservatives and liberals may do so at different rates.

I also dispute the 3-3-3 breakdown presented in the article. The authors put Gorsuch and Thomas (who agree 77% of the time) in the same group, but their chart shows that Thomas is more likely to agree with Barrett (82%) than with Gorsuch, and Gorsuch is more likely to agree with Barrett (82%) and Kavanaugh (80%) than with Thomas, and equally likely to agree (77%) with Roberts!

I confess, I am a hopeless wordcel, so it's highly likely that I've misunderstood the statistical wizardry at play in this chart. However, the numbers they give suggest to me that the Justices' breakdown more like 3-3-1.5-1.5: three liberals who vote together, three conservatives who vote together (Roberts, Kavanaugh, Barrett), Alito, and two Justices who often vote with Alito but don't reliably vote with each other (Thomas and Gorsuch).

Roberts and Kavanaugh definitely vote together more with each other than with Barrett.

Yeah, I thought it added something unique. Re: "I would like to see a similar voting breakdown focused only on cases with strong culture war salience":

Let’s look at the three cases from last term that were described as the most politically divisive that were decided along that ideological, x-axis.

The Supreme Court struck down the Biden administration’s student loan debt forgiveness plan. That was a 6-3 case that lined up ideologically and was by nearly any measure an important one. But if that case were decided only along the ideological axis, then why did five of those conservative justices uphold the Biden administration’s immigration enforcement plan? That decision held that states — in this case Texas and Louisiana — couldn’t sue to force the president to deport undocumented immigrants who had been convicted of crimes while in the United States? This was also considered a highly political case while it was pending before the court, but because it was decided 8-1 in favor of the Biden administration, it barely got any attention. If it had been decided 6-3 against the Biden administration, it no doubt would have been considered divisive — which just highlights the problem with the definition.

The Supreme Court also decided three cases about how to deal with the country’s history of racial discrimination last term. The court upheld section 2 of the Voting Rights Act which requires states to consider race in creating congressional districts. That was a 5-4 decision with the chief justice, Sotomayor, Kagan, Kavanaugh and Jackson in the majority. The court upheld the Indian Child Welfare Act which gave adoption placement preferences based on tribal status. That was 7-2. And it struck down Harvard and North Carolina’s race-based admissions policies by a 6-3 vote along ideological lines. Only the last case got major headlines. Why? Perhaps because the other two didn’t line up strictly on ideological lines, and therefore were not divisive.

I think they are making the case here that there's some very, very strong selection bias in play when we categorize things as "politically divisive", roughly analogous to "strong culture war salience". In other words, if we only ever describe whether a case is divisive based on the result, rather than the actual case, of course we are going to see a lot of divisive and partisan cases! It's - I think it's kind of like begging the question logical fallacy, yes?

Of course you probably could rate ideological controversy before cases are decided and then look at voting patterns. I think they didn't in this case because they wanted to focus on a time period where the 9 justices were also the current justices, and Jackson was only confirmed in 2022. I agree I would be interested if this type of analysis held up in other previous years with different justices, though it would lack the same generalizability.

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