Blawg Review: The Law and Capitalism Edition

Pro- and Anti-Government Justices?

Can we accurately describe Supreme Court justices as pro- and anti-government?  That is, if all we know is a) the identity of the justice and b) whether its a criminal case, can we predict (better than chance) how a justice will vote?  Law professor Ward Farnsworth's fascinating paper might answer: "Almost. But you also need to know whether the case is nonunanimous."

In  Signatures of Ideology: The Case of the Supreme Court's Criminal Docket, Professor Farnsworth examined 50-years worth of criminal cases,"defining them broadly to include appeals from criminal convictions, questions of search and seizure, disputes over the rules of evidence or of criminal procedure, civil rights claims brought by prisoners against their keepers, and many others: any cases where the government has been on one side with an accused or convicted defendant on the other."  He looked at statutory and constitutional cases.  According to the professor, (read this chart) Rehnquist almost always sided with the government in nonunanimous statutory cases, but Justice Thomas was more pro-government than Rehnquist in constitutional cases.  It's odd that Thomas is such a darling of libertarians, given that voting record.  Justice Scalia is the next highest ranking pro-government justice, followed by O'Connor and Kennedy (who switch respective places depending on whether they're voting on a constitutional or statutory case).

The article is full of interesting data, so I'm serious when I tell you to read the whole thing.  But there are two especially provocative data points:

The only Justice to use the rule of lenity often and distinctively is Justice Scalia, who applied it in ten of the last eleven cases where it was made an issue.  This helps explain why Scalia’s votes in statutory cases tend to favor the government less often than his votes in constitutional cases, for there is no rule of lenity in constitutional law.

This is strong evidence that Scalia isn't a pro-government hatchet man, and indeed, one might argue that the burden is on the anti-Scalia crowd to prove that he will side with the government "no matter what."  Another interesting piece of data concerned statutory interpretation. Supposedly there is a huge divide between the Court over what method of statutory interpretation should control.  But in one context, there is uniformity of interpretative method:

It sometimes is thought that the Supreme Court is riven by disputes between textualists and those who prefer a freer reading of a statutory text to give effect to its purposes. The cases concerning the AEDPA, at least, do not follow this pattern or any other consistent line of dispute over method. In none of them does anyone say the literal meaning of the statute should be sacrificed to advance its purpose. Instead both sides generally say that theirs is the better reading of the text itself.

Again, read the whole article, and Orin Kerr's summary, too.