Does Law Play a Significant Role in Divisive Supreme Court Cases?
People often act as though they expect law to play an insignificant role in divisive Supreme Court cases. Observers voice “surprise,” for example, when Justices like Roberts or Scalia switch sides to align with liberal Justices, even though these votes can sometimes be explained in terms of Justices’ broader jurisprudential commitments. More fundamentally, prominent legal scholars have questioned whether divisive cases need even be resolved by Justices who are formally educated lawyers. After all, if law does not determine outcomes in these cases, then legal training may be irrelevant. Or perhaps the Court needs Justices with non-legal training to attain an optimally diverse body of decision-makers.
My study revisits these questions by making use of a unique period when Justices with formal legal education sat with Justices who entered the profession by reading the law alone. Although all Justices had some legal training, law office apprenticeships (the most common training for Justices who read the law) offered only limited skills training. Unlike law schools, apprenticeships did not offer systematic instruction in general principles underlying specific rules and procedures.
Formal legal education is associated with significant differences in how Justices voted. Even in non-unanimous cases, Justices who shared the benefit of formal legal education (1) voted together more often and (2) were less politically predictable than Justices without this background. These findings substantially qualify earlier views on the desirability of Justices without formal legal education. More broadly, they suggest law plays a significant role even in divisive cases.