The Difference Between Liberal Justices and Conservative Justices

Liberals have for some time believed that all of conservatives' high-falutin' talk about "original intent" and judges who will "interpret the Constitution, not make laws" is just a crock. Rather, what they want is judges who will give them the results they want, whatever the Constitution may happen to say. "Original intent" is a particularly flexible, and therefore fundamentally bogus, rationale, since it's usually impossible to apply 18th century ideals to 21st century legal questions and arrive at a judgment based solely on your impression of what was in James Madison's mind, and therefore no matter what your preferred outcome is, you can justify it on the basis of original intent. And no one is more guilty of flinging that kind of baloney than Antonin Scalia.

But conservatives respond that liberals do the same thing, pretending to believe in abstract principles when they really just want the people they like to prevail in every case that comes before the courts. Resolving the dispute over who's right, or at least who's more right than the other side, isn't easy. But now the New York Times shares with us one study that attempted to find out, at least in the area of free speech cases. The researchers looked at hundreds of such cases to see if they could locate "in-group bias"—that is, were conservative justices more likely to decide in favor of conservative plaintiffs than liberal plaintiffs, and were liberal justices more likely to find in favor of liberal plaintiffs? This graph, from the Times story, nicely displays the findings:

What jumps out is how different the conservative justices are from the liberal justices. While all the liberal justices ruled more often for liberal plaintiffs than conservative ones, the differences tended to be pretty small. But for the conservative justices, the differences ranged from large to enormous. While the headline on the times story reads, "In Justices' Votes, Free Speech Often Means 'Speech I Agree With,'" they could have titled it, "In Conservative Justices' Votes, Free Speech Usually Means 'Speech I Agree With,'" and it would have been more accurate.

We don't know whether this pattern holds in other kinds of cases, but I wouldn't be at all surprised if it did—if, for instance, the liberal justices were slightly more likely to strike down a conservative regulation, while the conservative justices were much more likely to strike down a liberal regulation. And this kind of pattern has analogues in many different areas of politics.

For instance, we all know that Washington has become more "polarized" in recent years, and if you listened to the way the media talk about it, you'd think that Democrats and Republicans have moved away from the center at similar speeds, each becoming equally opposed to compromise and intransigent. But that isn't true. According to the Poole-Rosenthal DW-NOMINATE data, which are the state of the art in measuring congressional votes, what has happened in recent years is that Democrats in Congress have become slightly more liberal, while Republicans have become massively more conservative. (If you go to this page, you can see the data by scrolling down to the charts labeled "Party Means on Liberal-Conservative Dimension" for both the House and Senate.)

Or to take another area, both liberals and conservatives are sometimes confronted with cognitive dissonance when the world turns out not to be how they would like it to be. But while liberals end up being slightly more likely than conservatives to believe some things that aren't true, conservatives are hugely more likely, on a range of topics from climate change to whether we found Saddam Hussein's fictional weapons of mass destruction to whether Barack Obama is a United States citizen, to simply deny reality and convince themselves that the world accords with their preferences (Chris Mooney documented many of the ways conservatives are more likely to engage in "motivated reasoning," processing information through the filter of their pre-existing beliefs, in his book The Republican Brain).

There are other things you could add to that list, depending on your opinions. Most Democrats I know would probably say that while people on their side sometimes play dirty in campaigns, Republicans always play dirty, and much dirtier. On the other hand, Republicans would probably say just the opposite. But this study provides some pretty compelling evidence that when you last heard Antonin Scalia say that all he cares about is the intent of the Founders, and you thought he was full of crap, you were absolutely right.

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