Abstract

This article examines fifty years of voting behavior by Supreme Court justices in criminal matters that weren’t decided unanimously. The basic result is that any given justice has been about as likely to vote for the government in cases that involve the Constitution as in cases that don’t. Clarence Thomas, for example, has voted for the government about 85% of the time in constitutional cases and 87% of the time in cases that don’t involve the Constitution. David Souter has voted for the government 42% and 44% of the time, respectively; William O. Douglas voted for the government 4% of the time and 6% of the time, respectively. The article’s findings are set forth in a series of charts which the reader may find a source of pleasure and instruction.

Everyone already knows that some justices vote for the government much more often than others, of course. The significance of the study is that it compares votes in areas where the legal considerations are different but the policy considerations are the same, and nevertheless finds great similarities between the results. The article examines various mechanisms by which the justices’ policy preferences and other priors thus find their way into decisions that appear to be matters of interpretive dispute. It uses examples from the case law to show how decisions in criminal cases end up depending on what different justices count as costs and as benefits, on how much they trust juries, or on other factors independent of the legal materials involved.

These findings lend support to a legal realist view of the Supreme Court’s work, which is taken for granted by some analysts but at odds with the work of many others. The point isn't that the Court’s decisions are all politics, or that the justices always vote their policy preferences. The better view is that every case provokes competition between a justice's preferences on the one hand and the legal materials on the other. When legal materials of whatever sort are strong, they can and do produce unanimity despite conflicting preferences. But when the legal materials aren’t clear enough to create unanimity, they tend to give way to each justice’s underlying preferences and views of the world, and these often are the same regardless of the source of law at stake in a case.

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Ward Farnsworth Contact Information

wf@bu.edu
Boston University School of Law
765 Commonwealth Ave
Boston, MA 02215
USA
(617) 353-4008

Presentation and Publication Information:

104 Michigan Law Review 67 (2005)

Social Science Research Network: http://ssrn.com/abstract_id=839704

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