Joshua Furgeson, Linda Babcock, and Peter Shane have a fascinating paper, “Behind the Mask of Method” (Ohio State Public Law Working Paper No. 41 (June 2005) – Law Hum. Behav. 2007) on SSRN. Here’s the abstract.
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This empirical paper demonstrates that political orientation affects the interpretive methods (e.g., originalism) that individuals prefer to use to interpret the Constitution. As a consequence, the sworn allegiance of a judge (or judicial candidate) to a particular interpretive methodology, even if faithfully followed, simply cannot guarantee constitutional adjudication that is apolitical in motivation.
The paper begins by recognizing that certain interpretive methods often favor either liberal or conservative policies, and then propose that an individual’s policy goals subconsciously bias their interpretive preferences. We test this hypothesis in two empirical studies. The first study surveys federal law clerks about their interpretive preferences. We find that liberal clerks are significantly more likely than conservative clerks to favor the current meaning of the constitutional text, while conservatives are much more likely to prefer the original meaning. Liberals also prefer to interpret the Constitution a great deal more expansively than conservatives. The second study demonstrates that altering the policy implications of expansive interpretation can shift interpretive preferences, implying that political orientation actually causes, and is not just related to, interpretive preferences.
This relationship between political orientation and interpretive preferences challenges both traditional constitutional jurisprudence and contemporary politics. Interpretive methods are often cited because they appear to provide legal, rather than policy-based, guidance. Consequently, judges often frame their judicial rulings as an application of their interpretive preferences to the facts of the case. More controversially, many judicial nominees have argued that their personal beliefs will be irrelevant to their judicial decisions, as their interpretive preferences will guide them. Our findings imply, however, that judges cannot reduce the influence of their policy preferences by relying on interpretive methods, because their interpretive preferences were likely affected by their policy goals.
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To read some related Situationist posts, see “The Political Situation of Judicial Activism,” “Ideology is Back!,” “The Situation of Judges,” “Blinking on the Bench,” “The Situation of Judging – Part I,” “The Situation of Judging – Part II,” and “Justice Thomas and the Conservative Hypocrisy.”