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.

You may also like...

2 Responses

  1. Orin Kerr says:

    If I’m reading it correctly, your argument is premised on two assumptions: 1) whether a Justice had a formal legal education before practicing law determines how they approach law several decades later as Justices, and 2) the answer to whether law plays a significant role is the same today as it was 100 years ago, when there was significant diversity among the Justices in terms of their early training. If my understanding is correct, both of these assumptions strike me as possible but also debatable.

  2. Christine Chabot says:

    Thanks Orin,
    These are helpful comments. I agree with you on assumption 2 but would qualify assumption 1. It is not an assumption but a statistical finding that Justices who share the benefit of formal legal education vote together significantly more often than other Justices. There might be other explanations for these voting patterns, like later experience as a prosecutor or judge, or high socio-economic status or politics, but the analysis controls for these alternatives. Taking into account all of these possibilities, formal legal education is the only significant predictor of Justices’ votes. I don’t think I have to assume legal education itself determines Justices’ votes in interpreting these results. It may simply be that people who chose to attend law school valued the law more than others, and these values were later reflected in their votes as Justices.

    Assumption 2. As you correctly point out, I assume some similarities when I use past voting records to speak to the present. And the assumption is debatable – Justices’ voting patterns have recently become increasingly political even though they all have law degrees, and the mix of non-unanimous cases before the Court has changed. Even so, I argue the Court’s decisions could become even more political if presidents appoint Justices without formal legal training. Based on what happened in the past, there is reason to think Justices without formal legal education will be either less well-equipped or predisposed to set aside their political inclinations and agree based on law. Also, while the substantive issues which divide Justices in non-unanimous cases have changed over time, Justices may still continue to agree based on longstanding doctrines such as stare decisis, judicial restraint, and incremental decision-making.