Academic journal article Duke Law Journal

Does the Supreme Court Follow the Economic Returns? A Response to a Macrotheory of the Court

Academic journal article Duke Law Journal

Does the Supreme Court Follow the Economic Returns? A Response to a Macrotheory of the Court

Article excerpt

INTRODUCTION

Finley Peter Dunne's fictional political sage, Mr. Dooley, famously said that the Supreme Court "follows th' iliction returns." (1) In their contribution to this Symposium, Thomas Brennan, Lee Epstein, and Nancy Staudt argue instead that Supreme Court decisions track macroeconomic indicators. (2) Drawing on evidence that voters tend to vote for the government in a strong economy or during economic crises but vote against the government during more moderate economic slumps, (3) Professors Brennan, Epstein, and Staudt hypothesize that judges do the same. (4) Our interlocutors have tested this hypothesis by analyzing the national government's fortunes in tax cases decided between 1912 and 1929, a period of "ordinary" economic upswings and downturns, and between 1930 and 1940, during the Great Depression. These data appear to support their hypothesis: In the initial period, the government tended to win more of its tax cases during upswings and lose more during downturns. During the Depression, the government won considerably more tax cases than it lost. (5)

Like much of the empirical literature this conference addresses, Professors Brennan, Epstein, and Staudt have demonstrated a correlation between factors that most would consider extralegal and the outcomes of judicial decisions. Unlike the greater part of that literature, Brennan, Epstein, and Staudt do not call those factors "political"--rather, they distinguish their "macrotheory" of the Supreme Court from both the conventional legal model and the attitudinal model of judicial behavior, (6) which posits that judges vote to vindicate their political and policy preferences. (7) Nonetheless, this economic "macrotheory" raises the same basic question that underlies this conference, not to mention the empirical project as a whole: What can empirical demonstrations of this sort teach about judges and the law?

The question is significant on a number of levels. Empirical analysis of judicial behavior is a growth industry in the legal academy, but it also seems fair to say that the field remains in its infancy. As our colleague Jack Knight's contribution to this conference suggests, (8) it is a good time to be asking basic questions about what sort of hypotheses empiricists ought to be testing and how these research projects ought to relate--if at all--to traditional legal scholarship. More broadly, this sort of research has the potential to deepen our understanding of how the law works and, possibly, to increase the predictability of judicial outcomes--a basic aspect of the rule of law. (9) But a downside risk exists as well: empiricists frequently posit that judges decide cases based on motivations, such as raw political preference or economic self-interest, that most participants in the legal community would consider profoundly illegitimate. Although we think that conventional thinking about law incorporates a far greater role for politics and economics than empiricists typically imagine, the project of reducing law entirely to these factors is likely to generate a great deal of hostility. (10) This Symposium, and hopefully our contribution to it, is an effort to prevent empiricists and lawyers from talking past one another.

Although they acknowledge that their study is preliminary, Professors Brennan, Epstein, and Staudt make bold claims about the implications of their findings. First, they conclude that "the Justices believe they have a role to play in assuring national economic prosperity and growth." (11) Second, they "challenge the conventional belief that the Court maintained a strong and unambiguous bias against President Roosevelt's administration prior to the announcement of the Court-packing plan." (12) Finally, they claim that their findings "may help explain Supreme Court votes in the post-World War II era and, at the same time, forecast upcoming votes in the context of the serious national economic decline that began in 2008. …

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