US supreme court overtaken by right wing bots

 

Image from the movie SurrogatesKen’s last post seeks to crowdsource ideas for teaching law students some of their cognitive biases.  I’d been contemplating on posting on something I’d read in Supercrunchers, and this gave me the perfect opportunity.

Good questions Ken. I can’t answer them very satisfactorily but I hope the Tropposphere in its dialectical wisdom comes up with some good ideas for you. One thing your post puts me in mind of is a result I can reference for you if you want. When someone tried to predict the decisions judges on the Supreme Court made using an extremely crude algorithm that asked whether the decision they were hearing on appeal was ‘left’ or ‘right’ leaning, they found that the algorithm predicted more accurately than constitutional experts.

But there was more to it than that. The algorithm picked those leaning right much better than the experts, and those leaning left somewhat worse! As close as you’re gonna get to catching them with their ideological pants down I would have thought.

This led to some argy bargy between me and a couple of conservatives (I hope I’m not offending them – the ‘c’ is small as in Burke and I have the greatest regard for conservatism – and liberalism and social democracy). Anyway, the exchange and the algorithm which predicted judicial outcomes better than those who read the legal arguments are over the fold for your delectation and deliberation.

Pedro said:

I don’t know whose pants are supposed to be down, but we black letter lawyers would not be surprised at the finding. Conservatives are more predictable because they are more often correct! Lionel Murphy just made stuff up, Garfield Barwick at least tried to put stuff into historical context. You might like what the lefty judges are saying, but if organising your affairs on the basis of settled law, its best if it stays settled.

Nicholas Gruen said:

Pedro, the algorithm wasn’t a black letter lawyer. It wasn’t trying to think about the law. It was trying to work out what was left wing and what was right wing so it could pick the latter option. Presumably the ‘experts’ were seeking to predict judges decisions based on consistency with their past reasoning, and that of the court.

Patrick said:

Nick, you may have misunderstood Pedro’s point, which is that predictability is in and of itself a ‘right-wing’ virtue in the strange world of law. So one would expect right-wing lawyers to be more predictable and left-wing lawyers to be less predictable, without having any basis on which to conclude that one is more biased than the other.

It is not surprising that someone is not necessarily less biased just because they are less predictable, indeed the opposite may be the case.

If your ‘right wing’ favours minimalism, for example, then they will be very predictable, as (for example using that Court) Justice Thomas or Scalia are. If your ideology is the ‘fairness of the case’ which is a terrible but very left-wing ideology, then the algorithm may indeed find you harder to pick, whether because it has a different concept of fairness or perhaps its proxies aren’t sensitive enough. For example Ginsburg herself may not know what is the fair outcome as between two large corporations and she may base her reasoning on entirely un-algorithmic ‘knock-on’ effects for cases which she does feel strongly about the ‘fairness’ of.

So that study may be very valid or complete shite, and it would take a lot of time, and probably a lot of different algorithms, to work out which.

Nicholas Gruen said:

Thanks Patrick, I may have misunderstood Pedro, but I still don’t think you can get him off the hook. The issue here was not predictability but how you predict the outcome. If you want to check out the original article, you may trump me, but the reportage I read (in Supercrunchers by the way) didn’t say that the left leaning judges were less predictable, only that they were less predictable with an algorithm that predicted their decisions based on the assumption that they were politically biased. That is the nub of it, it seems to me.

Pedro said:

Patrick’s explanation of the essence of my point is correct. Perhaps the algorithm is different, but I did assume that anyone seeking to identify right wing lawyers would be looking for signs of conservatism.

So now we have the algorithm. It is in some senses ‘complete shite’ as Patrick speculated.  But that complete shite, that attempt to just work out where the case is on the ideological spectrum manages to predict the responses of the right leaning judges sufficiently better than the liberal ones that the algorithm does better than domain experts (who one would like to think examine the actual arguments) that it still trumps the experts in predicting cases even though it does worse at predicting the decisions of the liberals.

It seems to me that this is as ‘objective’ a demonstration of the bad faith of the right leaning operatives judges as one could hope to find in the modest resources of the social sciences. Still, it’s possible that when left leaning judges were busily reweigting the jurisprudential scales in Roe v Wade and Brown v Board of Education that similar algorithms would have more accurately predicted liberal judges.  And at least with the latter of the two cases above I (think I) support the outcome. On the other hand the findings are also evidence for Paul Krugman’s thesis that the right in the US are not conservatives but revolutionaries, with ‘revolutionary’ implying the lack of any sense of the political legitimacy of your political opponents.

I think this also has some bearing on the strange policy of the current US President who, in the face of constant signs of bad faith from his opponents, endlessly rehearses the idea of bipartisanship. The result is the well documented phenomenon of the President negotiating with himself and the resulting drift of the apparent centre of politics further and further into the world of craziness. Negotiating with a bot is not a good idea – certainly not one programmed as illustrated above.

Anyway, it’s a pretty interesting subject so, rather than derail Ken’s threat, here’s my own. I’d be interested in Pedro’s and Patrick’s response to this on the merits of our discussion, but also on thoughts from further afield.

 

 

 

 

 

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Pedro
Pedro
10 years ago

I think that the outcome is more likely the bleeding obvious than anything else.

Nicholas said that the algorithm was not so good at predicting liberal (US) judges. This is not mentioned in the other discussions I looked at tooday, but I’ll take your word for it. Still, it’s no biggie. If the opposite of liberal is conservative, as compared to revolutionary right, then the conservative judges will be inherently more predictable.

The algorithm seemed basically to confirm that judges are consistent on big picture issues. If liberals are harder to predict then that is perhaps because any particular liberal decision will more likely be a variation from precedent, but liberals will also make decisions consistent with precedent. Even the biggest liberals might feel bound by some long-settled rules.

I have not read the book, but I think the article I linked to on the other thread supports that assessment.

But where did you get the picture of Sandra Day O’Connor as a young hottie?

Ken Parish
Ken Parish
10 years ago

Hmm. All very interesting. But how do they decide which judges are “liberal” (left-ish) and which conservative? Is it just because they were appointed by a Democrat President in the former case and a Republican in the latter? Or did they use more spohisticated metrics and if so what were they?

For example if we applied the crude method of assuming political orientation of High Court of Australia Justices would equate with that of the government which appointed them, then this would be quite a poor measure. It is generally thought that the Keating government, for example, deliberately appointed a relatively conservative Justice in Gummow J in 1995 to balance out what was at the time seen even by Labor as the excessive activism of the Mason High Court (Mabo, free speech cases etc). One might argue that French CJ was also a relatively conservative appointee of the Rudd government whose politics almost certainly aren’t especially left/liberal.

It seems more common for conservative-leaning Justices to flaunt their ideological colours quite openly e.g. Heydon J, Callinan J, and in the US context Scalia J etc, so perhaps it’s easier to pigeonhole them.

Pedro
Pedro
10 years ago

Now for the argy bargy ;-)

“It seems to me that this is as ‘objective’ a demonstration of the bad faith of the right leaning operatives judges as one could hope to find in the modest resources of the social sciences.”

Nonsense. There is a very respectable argument that even obvious flaws in the common law ought not be fixed by judges making a radical change to the law. All serious changes in the law potentially impose costs on society and those changes are by necessity, not predicted, not democratically debated and, worst of all, retrospective.

“On the other hand the findings are also evidence for Paul Krugman’s thesis that the right in the US are not conservatives but revolutionaries, with ‘revolutionary’ implying the lack of any sense of the political legitimacy of your political opponents.”

Nonsense on stilts. You’d be hard pressed to call conservative judges revolutionaries and I challenge you to find evidence to support the claim. Also, me thinking you wrong about a social policy issue and deciding accordingly does not mean I think you lack political legitimacy. Also, even if it did, how is that different for liberal judges overturning conservative law? Both sides in the US (and here) are equally adept at thinking their opponents illegitimate.

Pedro
Pedro
10 years ago

“the excessive activism of the Mason High Court”

Ken, maybe my memory is failing, but I thought Mason pretty conservative in his early career on the bench, so pidgeonholing is risky.

“It seems more common for conservative-leaning Justices to flaunt their ideological colours quite openly e.g. Heydon J, Callinan J”

Framing alert!

Ken Parish
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Ken Parish(@ken-parish)
10 years ago

Mason CJ certainly was fairly conservative early in his High Court career, but became progressively more radicalised as time went on (at least in my perception and that of numerous other observers). It’s interesting that the core “activist” majority on the Mason Court was comprised of 2 Coalition appointees in Mason and Deane, and 2 Labor appointees in Gaudron and Toohey.

No doubt my observation does involve some framing, but I would argue that it’s fair comment at least for Heydon and Callinan JJ. Both (especially Heydon) campaigned fairly openly for appointment to the High Court on the basis of their Capital C conservative credentials.

I was going to canvas the argument that, at least in an Australian context, Coalition governments may be more willing to appoint more strongly ideologically differentiated Justices than Labor, and that if such a phenomenon also exists in the US it might account for the alleged greater ideological predictability of “rightist” judges. That is, it’s the government’s choice of more strongly ideologically oriented appointees that creates the result, not any innate “bad faith” on the part of right-leaning judges in general. If you choose political hacks you shouldn’t be surprised if they behave as such. With the noteworthy exceptions of Murphy and Kirby JJ, Labor appointees to Australia’s high Court have tended to be fairly centrist or at most very moderately left-leaning as far as one can tell. Then again, arguably the same is true of the Coalition: Callinan and Heydon JJ are the only radical right-leaning appointments of the Howard government.

Nevertheless, I seriously doubt whether one can say at least in an Australian context that right-leaning High Court Justices are more predictably right wing in their judicial decision-making than left-leaning Justices. All Justices are creatures of their upbringing, social class, career experiences etc, just like any other human being, but all of them also strive to make decisions in good faith on the law and evidence before them as they see it. Legal realist scholars have been arguing that since at least the late 19th century and it’s fairly generally accepted. I suspect that any study purporting to show that righties are more politically biased (or whatever) than lefties is an artefect either of the decision-classifying algorithm or the one used to classify the judges in the first place.

However, it occurs to me that one might reasonably argue that Labor appointees have been more willing to embrace the unavoidable reality of judicial choice in an ultimate appellate jurisdiction like the High Court, and to openly weigh up the competing social, economic, political, historical, cultural etc factors that unavoidably bear on that choice (consciously or otherwise). OTOH conservative Justices tend more often to keep hewing to some version of the traditional declaratory or formalist approach to judicial decision-making i.e. judicial choice is quite limited and even when it exists there is a single correct result indicated by the combination of precedent and proper legal reasoning. Maybe the former approach works better at reducing cognitive biases through encouraging the Justices to interrogate their own reasoning processes, whereas the conservatives’ faith in their intuitive moral responses (viz Haidt) as the surest guide to fixing on the correct legal reasoning and outcome inherently involves a lower level of truly open-minded reflective thinking. It’s not a matter of “bad faith” but rather stronger faith in the reliability of one’s own intuitive moral responses (along with a greater readiness to accept more complacently that one’s post hoc rationalisations actually represent open-minded reasoning rather than fairly instantaneous intuitive responses. Then again, this hypothesis might just be my own cognitive biases showing (and probably is at least to an extent).

Finally, I should also note that I’m not suggesting that right-leaning judges possessing greater faith in their own moral intuitions (I’m assuming here that most decisions about civil rights and many about economic issues have powerful moral dimensions) is necessarily a bad thing compared with significantly greater willingness of “liberal” judges to abandon tradition when the totality of evidence seems to point in that direction. In many respects it’s just an inherent attribute of Burkean conservatism i.e. if you reckon our current society is pretty damn good, stable, free and prosperous (as I certainly do in relation to Australia), then it’s entirely reasonable to err strongly on the side of tradition and stability and require a much stronger burden of proof from those advocating significant change. Thus you would expect conservative Justices’ decisions to exemplify greater adherence to the conservative status quo. Perhaps this study is simply condemning conservatives for being conservative???

Patrick
Patrick
10 years ago

I agree with KP’s comment, and in particular (which is what I think Pedro and I are saying but is better put):

Perhaps this study is simply condemning conservatives for being conservative???

Not the bit about flaunting though, Ginsburg, for example, and Kirby

As for the bit about Krugman, I think Andrew Norton was spot-on in his description of Krugman a few days ago.

The best example of cognitive bias on this thread is Nick’s bizarre Krugman-fever belief that conservatives are somehow different or worse than progressives, best typified by this non sequitur:

Thinks of ‘conservative’ John Howard sacking 6 departmental secretaries on taking up his new post.

Can anyone tell me what the hell has that got to do with the price of fish or anything else???

Pedro
Pedro
10 years ago

I’m too lazy to go looking, but I’m sure you’ll find, and Ken probably knows off the top of his head, instances where conservative judges have followed precedents that they did not originally support because they are, well, precedents.

Roe v Wade is a funny one and hard cases make bad law. But the original argument was, I understand, crap. Now it is longish established precedent so should a modern SC overturn a clearly wrong decision made for idealogical reasons? And what would you say if the decision had the same background but supported something horrible like eugenics?

To the extent I am a conservative, it is because I like proper process and judges making big law is not a proper process. If you like activist judges in some cases then you shouldn’t complain about the activism you don’t like.

The other thing is that all this stuff is just opinions. You like abortion, say, or land rights, or redistribution? Great, but that does not make you morally superior. The arguments against are not necessarily immoral or unjust. So when you say that “conservative” judges in the US are really the fascist vanguard or whatever just because you don’t like their opinions then you’ve descended into Glenn Beck territory. Now I know that’s not your go, but there has been an unmistakable flavour of condemnation of the right for being right in this discussion.

Pedro
Pedro
10 years ago

Ken, the only thing I ask of judges is that they act in a way that allows me to do my job. To the extent they are predictable I can come to a view about issues relevant to my clients.

Ken Parish
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Ken Parish(@ken-parish)
10 years ago

Nicholas

You seem to be conflating the approaches of Conservative politicians (both US and Australian) and US judges, while absolving Australian judges of accusations of bad faith. I think that’s problematic.

I agree that there is a strand of US conservative political activism (both among politicians themselves and the commentariat) which certainly isn’t conservative in a Burkean sense. They are right wing radicals (e.g. numerous actions of the Bush administration, most Tea Party positions, Fox News) who will stop at nothing to advocate/achieve their ideological ends, irrespective of tradition, precedent, stability and similar values dear to Burkean conservatives.

I also agree that this is true, though to a lesser extent, of a few Australian conservative politicians, especially Howard and Abbott, and of pundits like Andrew Bolt. These positions, both in the US and Australia, can reasonably be labelled as dishonest/bad faith IMO.

I don’t see that one can say the same of US Supreme Court Justices. You may be a closer observer of USSC jurisprudence than me, but the only decision of the last decade or so that I can think of that IMO qualifies as “bad faith” (i.e. stop at nothing to get an ideological result irrespective of precedent, sound reasoning etc) is Bush v Gore.

In other cases I suggest that closer concordance of conservative Justices with stereotyped ideological outcomes is better explained by the factors I outlined above in #7, along with a philosophical belief in an originalist approach to interpreting the Constitution in the case of Justices like Scalia and Clarence Thomas. Now I personally regard originalism as a problematic approach in itself, because in many cases its impossible to know the Founders’ intentions as to the meaning or application of constitutional provisions to modern situations and problems which could not even have been imagined in the 1780s. That is, originalism is to a significant extent a legal fiction which disguises application of personal judicial preferences and which also avoids grappling (overtly and perhaps in some cases even consciously) with real underlying motives and factors influencing judicial choice. Nevertheless that doesn’t make originalism a “bad faith” approach. Originalist approaches can be quite sophisticated e.g. this explanation from Samuel Popkin:

“The simple act of thinking about the meaning of statutory language in this broader context – which the judge must do – requires judgment about how the text should interact with its past and future. That is why, despite its being an obvious fiction, the judge when engaged in statutory interpretation is unable to do without the concept of legislative intent. Intent is matched with text as an essential aspect of statutory meaning, not because the judge has any confidence that legislative intent is knowable, but because ‘intent’ (or ‘will’) captures the idea that choices must be made in order to apply a text to facts. Legislative intent is a useful judicial construct because the judge is required to make the choices that best express the statutory text’s meaning.”

From memory you mentioned Roe v Wade earlier in the discussion (probably on the other thread). I actually think Roe v Wade is a good example of bad faith or at least intellectual dishonesty on the part of liberal Justices. I certainly don’t disagree with abortion rights from a policy perspective (not being a moral/social conservative), but I have serious problems with judicial legislation (and that’s what Roe v Wade was) conjuring a constitutionally entrenched substantive right to privacy and therefore abortion from a constitutional guarantee of due process! Not only do such rights bear no relationship whatever to original intent, but more importantly the reasoning whereby a mere right to a fair procedure is magically transformed into substantive rights to privacy and abortion is intellectually dubious to say the least. Of course, Roe v Wade is now precedent-hardened, and therefore one might argue that a Burkean conservative would put aside his/her intellectual and moral objections and respect precedent in the interests of stability, tradition etc. However, one can also argue that precedent should still not protect a decision that is sufficiently egregiously wrong in legal principle (that is also the long-held express position of the High Court of Australia as to when it will depart from its own earlier decisions). I think there’s a plausible argument that that is the case with Roe v Wade, and therefore continuing opposition to it by conservative USSC Justices is neither “bad faith” nor a betrayal of Burkean conservative principles.

Patrick
Patrick
10 years ago

I’m afraid we differ down to the bone! To start with, I am a strong legal conservative but much more of a libertarian, politically. That probably explains our different reactions to sacking departmental secretaries. I do not support judicial ‘development’ of libertarian doctrine because I think that parliament is the correct avenue for that. I don’t support your apparent theory of judicial conservatism, though, no conservative I know does.

Your theory of judicial conservatism appears to be the liberal parody of it, trotted out in defense of every precedent liberals like (but not, oddly, Lochner or Dred Scott, or Lawrence v Texas, even though Lochner is in many ways the spiritual father of Roe(!)).

There is nothing about being conservative that requires one to embrace the status quo be it as it may. If anything, being conservative means prioritising the status quo ante, i.e. being judicially conservative means paying particular attention to Constitutions, not as they might be in one’s wet dream, but as they are.

That includes as they have been interpreted to be – but NOT by every single decision. Roe v Wade, for example, is in the opinion of every conservative I’ve ever spoken to a completely wrong decision, the bizarre ratio of which hasn’t received majority judicial support in basically any subsequent decision. So overturning Roe is not seen by conservatives as lack of respect for precedent but proper appreciation of it, including that the ‘precedent’ is sometimes wrong.

With respect of this algorithm, I am slightly concerned as to the calibre of experts they consulted. I don’t think that so many cases are as hard to predict as that! For example, the US SC basically always overturns the 9th circuit (one of the algorithmic factors), because the 9th circuit issues decisions which fly in the face of recent USSC precedents. The DC circuit and 2nd circuit are sometimes considered the ‘best’, so maybe that explains why they are less overturned by conservatives, etc.

I suspect that over-specialisation may have meant that many of the predictions were barely more than guesses, and that as a result any algorithm is better than none.

Patrick
Patrick
10 years ago

Sorry, I was slow to refresh, obviously. I differ down the bone to Nick, not KP or Pedro with whom I strongly agree (except that I am probably one of the ‘conservative political activists to whom KP refers – for the reasons outlined in my first paragraph, I don’t think I am guilty of bad faith!).

In particular, I think that matters of tone aside Ken and I largely agree on Roe v Wade.

Pedro
Pedro
10 years ago

And it all ends in hugs and kisses, perfect! :-)

Patrick
Patrick
10 years ago

You’ll be more up on it than me, but there have been various doctrines that it was not possible for the highest court to overrule itself, and that this must be left to parliament.

Not in my lifetime and only barely in yours, if at all (not really sure how old you are)!

But I don’t actually disagree with your latest comment so I will agree with Pedro :)

Ken Parish
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Ken Parish(@ken-parish)
10 years ago

You didn’t send love to me. But I’m a misanthropic old bastard anyway. Bah humbug!