Dispatches from the Creation Wars

Court Rules Against Oil Industry

The Supreme Court ruled unanimously today against Arco and BP America in their attempt to get out of paying old royalties to the government. One of the things that annoys me during all confirmation hearings is how utterly simplistic the arguments are from advocates on both sides. In the case of the last two justices, Alito and Roberts, liberal interest groups liked to cite statistics saying that they ruled in favor of corporations rather than other groups some percentage of the time, as evidence of their pro-corporate bias. But that is a lot of meaningless blather. Sometimes the law favors the claim of a corporation, sometimes it does not. Merely compiling statistics like that without any regard to which side should have won on the legal merits simply does not tell you anything meaningful. Incidentally, this ruling against the big corporations was written by Justice Alito.

Comments

  1. #1 JBL
    December 11, 2006

    Not at all meaningless! First of all, you’re specifically generalizing many of the claims made about Alito, which tended to feature particular sorts of cases: environmental suits, or workplace discrimination cases, or the like. Second, you’re suggesting that any two judges (regardless of their personal beliefs) will come down the same way on the same cases, because one side should win on the merits, and so it doesn’t matter what the views of the judge in question are. This is obviously wrong: there are some cases, like this one, where the position of one side is so terribly weak or the state of the law so clear that the justices will all agree. Those aren’t the kind of cases people worry about. The cases to worry about are the ones where the law isn’t clear, and a judge has the opportunity to move the state of the law in one of two directions (say, limiting the right of a worker to sue for discrimination, or not). It’s those cases that are important, and it’s those cases where the past voting record provides important suggestions as to future rulings. The fact that Alito was on the “right side” of a 9-0 ruling doesn’t matter — the question is where he will come down on cases that break 5-4.

  2. #2 Joe Shelby
    December 11, 2006

    I would say there’s a difference between corporations fighting government over taxes vs. corporations fighting government over mere regulations. :)

  3. #3 Ed Brayton
    December 11, 2006

    JBL wrote:

    First of all, you’re specifically generalizing many of the claims made about Alito, which tended to feature particular sorts of cases: environmental suits, or workplace discrimination cases, or the like.

    But the same is still true of all such cases: without actually looking at the facts and legal arguments of the case, such statistical measurements are absolutely meaningless.

    Second, you’re suggesting that any two judges (regardless of their personal beliefs) will come down the same way on the same cases, because one side should win on the merits, and so it doesn’t matter what the views of the judge in question are.

    No, that’s not what I’m saying at all. The judge’s views certainly matter, but statistical measurements of how often they vote for or against a corporation is not necessarily a measurement of their views at all. So a judge might vote for corporations 65% of the time; what if the corporations should have won 65% of the time? Statistics simply cannot tell you that. I’m happy to read arguments based on specific views expressed in specific opinions and how that might bias them unjustifiably one way or the other, but statistical measurements simply don’t mean anything.

  4. #4 Sean
    December 11, 2006

    Obviously this case was so clearcut that Alito went with the majority to give the impression that he is an impartial juror. A true reading of his record reveals that he has an agenda that is written by big business. He only rules against corporations now and then to disguise this fact.

    Now substitute ACLU and religous references in the above paragraph. I do not drink that kool-aid when those to the right use it. I do not drink that kool-aid when those on the left use it.

    Now, Alito may actually have a bias the leads him to lean toward rulings in favor of corporations. People, including judges, have built in worldviews and value systems which color their reasoning. If one thinks Alito is such a man, then lay out a case using specific instances, case records, and quotes. I am not going to be swayed by a catchall percentage that claims to sum up a man bias.

  5. #5 Ed Brayton
    December 11, 2006

    Very well said, Sean.

  6. #6 JBL
    December 11, 2006

    “Obviously this case was so clearcut that Alito went with the majority to give the impression that he is an impartial juror. A true reading of his record reveals that he has an agenda that is written by big business. He only rules against corporations now and then to disguise this fact.

    Now substitute ACLU and religous references in the above paragraph. I do not drink that kool-aid when those to the right use it. I do not drink that kool-aid when those on the left use it.”

    This is an obvious strawman (as is Ed’s 65% example)! Neither I, nor any of the groups who opposed Alito, would have promoted such an obviously absurd conspiracy theory. I don’t think Alito is a mole, actively seeking opportunities to undermine the republic through his pro-corporate rulings; I think he is someone whose worldview informs his jurisprudence, like every other judge, and I find his worldview shockingly lopsided against what I consider to be right and good. How should I explain why I believe this to be true? I could provide you with hundreds of pages of close-reading of his arguments, which no one would ever read and which would have zero impact on the public discourse concerning his nomination, or I could try to summarize the results of such an investigation in a relatively compact format. A statement like, “Alito consistently votes for corporations and against workers in discrimination suits, and has yet to find an example of environmental legislation he approves of,” would be a perfectly legitimate such summary (assuming that it was accurate, of course — in this instance, I just made something up).

    I think, essentially, that you’re attacking an argument that was never made. No one organizing against Alito ever said, “Hey, I heard Sammy voted for corporations 65% of the time — let’s get him!” You’re much more likely to find statements akin to the one I made, which (1) are far more nuanced than the sort of thing you are opposing and (2) informed to a much greater extent by the content of the particular cases. In fact, if you go and look through statements by various organizations that opposed him, I bet you’ll find lots of mentions of the cases where Alito was either a deciding vote (in a one-judge majority — those cases where the law was least clear, and where he helped drive it in a bad direction) or those in which he was in a small majority (those in which his view was sufficiently extreme as to have been repudiated by a large number of other judges), and very few mentions of cases in which he was in a substantial majority (where he was most clearly ruling in tune with the law, even if the result was “pro-corporate” or “objectively pro evil” or whatever). I of course haven’t actually done any such research myself, but I was a politically tuned-in, news-reading citizen at the time of both nominations, and I feel comfortable with my basic memory of the debates surrounding them.

    Basically, I don’t see what the point of every sentence after the first of your post: you blame unnamed liberal interest groups for undocumented activities that seem to annoy you. There’s no single piece of evidence you’ve provided, just a general gripe about how darned shallow liberals were during the hearings. As if there weren’t perfectly good, legitimate reasons to oppose him!

  7. #7 JBL
    December 11, 2006

    So, in shorter summary: Sean, I can find you dozens of conservatives making your argument (with appropriate substitution), many of whom Ed criticizes on a regular basis. I’d like you to find me comparable examples of liberals making those arguments about Alito. When you can make a case that this bullshit actually exists on “my” side in remotely similar quantities (say, in the context of the Alito hearings), I’ll be happy to back down. Until then, I stick to the view that Ed’s post is baselessly attacking liberals.

  8. #8 Ed Brayton
    December 11, 2006

    JBL wrote:

    Basically, I don’t see what the point of every sentence after the first of your post: you blame unnamed liberal interest groups for undocumented activities that seem to annoy you. There’s no single piece of evidence you’ve provided, just a general gripe about how darned shallow liberals were during the hearings.

    Actually, let’s report what I said accurately. Here it is:

    One of the things that annoys me during all confirmation hearings is how utterly simplistic the arguments are from advocates on both sides.

    The only reason I used this particular example about liberal interest groups and Alito is because it was germane to this particular case. I don’t trust conservative groups when they’re discussing the results of liberal judges either, we just haven’t had that happen in the last 6 years. And I don’t trust them because both rely upon the same kind of simplistic arguments, general summaries of whether a person generally votes “for civil rights” or “for big corporations” (or, from the conservative standpoint, “in favor of liberal special interest groups” or something similar). My point is really quite simple: how often a judge votes for or against various types of parties to a legal action – plaintiffs vs. defendants, corporations vs. individuals, government agencies vs. individuals, government agencies vs. corporations, liberal interest groups vs. conservative interest groups, and so forth – does not, by itself, tell us anything meaningful.

    And if you want examples of this kind of overly simplistic rhetoric, I can provide plenty of them. Here is what People for the American Way said in the press release for it’s pre-hearing report on Alito:

    More than his colleagues on the Third Circuit, Judge Alito has sided with corporations and government entities accused of discrimination. Several analyses of his record by academics and the news media indicate that he consistently sides with powerful entities against individuals.

    None of that, by itself, tells us anything at all. Okay, so he sided more often with corporations and government agencies accused of discrimination. Were those votes right or wrong, justified or unjustified? That’s the only question that matters. Sometimes the law is on the side of corporations and powerful agencies, sometimes it’s not. It may well be true that Alito has a bias in favor of corporations that clouds his judgement, but this simply is not evidence for that conclusion (any more than noting that Justice Ginsburg tends to vote with the ACLU’s position proves that she’s biased in some material way).

    If you want more examples, take a look at this flyer put out by PAW against Alito specifically about his alleged pro-corporate bias. The flyer makes statements like “As a federal judge, Alito often sided with corporate special interests at the expense of ordinary Americans.” Okay, great. Now were those rulings right or wrong? Sometimes the law is on the side of “corpoate special interests” and against “ordinary Americans.” The mere fact that a judge votes against “ordinary Americans” in a case, or in 50 cases, means absolutely nothing in and of itself. There has to be some analysis of the factual and legal issues in those cases, at bare minimum, and you will find none in these materials.

    It says things like, “Judge Alito has voted to make it harder than Congress intended for citizens to establish a case against corporations for toxic emissions that violate the Clean Water Act. In a later case, the Supreme Court effectively rejected Alito’s position.” Okay, great. Now tell me, was the law on his side or not? What they’ve said here has nothing to do with whether his opinion in the case was justified or not. Every judge has made rulings that are later overturned by the Supreme Court. He may have been right, he may have been wrong. But there is absolutely nothing in the text here that even hints at making an argument for either conclusion. They don’t even tell you what the cases were so you can look them up and see if they’re being portayed accurately. I’ve seen more than enough claims of “Judge so and so once voted for the tasering of school children” and other outrageous claims that I don’t just accept what partisan political groups of either side tell me; I look up the cases for myself.

    What we have here is the kind of simple partisan rhetoric that I just don’t think should be taken seriously when either side puts it out. It’s not about making a serious analysis of his jurisprudence, it’s about convincing people to identify them with their political enemies. For the right, that means putting out reports that say this or that judge has voted with the ACLU, or with People for the American Way, or with the labor unions most of the time because those are groups identified with Them, the other side that we all know is evil *wink, wink*. For the left, it means painting someone as being on the side of “big business” and against “the little guy”, because that pushes the emotional buttons of those on the left, who tend to think that the cause of a minority is always correct and anything that might benefit someone with money must be wrong.

    Except, of course, when inconvenient issues like eminent domain come along, when the sides suddenly shift. Eminent domain is used almost exclusively to benefit the wealthy at the expense of the middle class and poor, particularly large corporations like Walmart and Costco. Then it’s the conservatives who vote strongly for limiting the use of such authority and liberals who vote for it (look at the breakdown of the votes in Kelo if you don’t believe me). My point is that these issues are rarely as simple as one group being on the side of the rich and the other group standing up for the little guy. And this kind of rhetoric adds lots of heat and very little light to any serious analysis of a judge’s record. Alito may well be all of those things he is accused of; I’m not saying he’s not. But in order to establish that, it takes a lot more than just telling us how often he votes for one group over another.

  9. #9 Don
    December 11, 2006

    I can’t go for meaningless. If the statistics said that a judge decided for corporations 85% of the time then I would say it is time to look at this judge very closely. But I couldn’t get too worked up over a judge that went 65% of the time with corporations. The reason is there is a small sample set. I wouldn’t think that most judges see enough corporate versus private citizen or corporate versus government cases to make a sample set large enough to expect statistics to match an expected outcome. Most cases are corporate versus corporate in which case you always decide with the corporation. My point is the statistics can be used as an indicator but is always trumped by a review of actual cases.

  10. #10 Rick
    December 12, 2006

    What you could do, looking at statistics alone, is to compare different judges. That would presume that the cases seen by various judges are fairly similar in nature. Then if you had one judge who ruled “in favor of corporations” 88% of the time (when corporation v. corporation suits are excluded from the analysis), and another who ruled “in favor of corporations” 32% of the time, you could feel safe in predicting that the first judge was more likely to rule in favor of corporations in a higher court than the second judge.

    Of course, this kind of analysis gives you no clue as to which of the judges is ruling correctly. But partisan advocates don’t usually care too much about whether a result is correct or not, they only care which way it swings.

    I was more concerned about Alito because he approved a warrantless body search of a minor. I don’t trust him to serve as any check on untethered blanket assertions of executive power.

  11. #11 paulh
    December 12, 2006

    What’s really needed is some way of measuring the extent to which (and the direction) they were inclined to use their discretion.

  12. #12 JBL
    December 12, 2006

    As a general rule, Ed, if you say, “I really hate it when everyone does X. Here are my complaints about liberals doing X,” you’re not going to then convince a liberal that you were evenhanded by pointing to the first sentence. (Not that this makes you wrong; I’m just surprised that you think quoting that line of your post back to me will make me feel better about the rest of it.)

    “More than his colleagues on the Third Circuit, Judge Alito has sided with corporations and government entities accused of discrimination. Several analyses of his record by academics and the news media indicate that he consistently sides with powerful entities against individuals.”

    This is entirely different than what you are complaining about! This is a perfectly legitimate summary of Alito’s time on the bench — in particular, it compares him to an independent standard (the rest of the Third Circuit) and comes to the reasonable conclusion that he is more conservative, in a very specific way (re: corporations and government entities accused of discrimination) than the rest of the circuit. This claim is limited, accurate, and comes with excellent context: it’s not just “65% of the time,” it’s relative to other judges judging the same cases (and thus, presumably, relative to a reasonable approximation of “what the law actually says”)! I see absolutely nothing objectionable in that quote (and so maybe we will just have to agree to disagree about that).

    In the later example, again, comparing his ruling to the Supreme Court’s is totally valid: what other standard is there for the state of the law than what the SC rules? Noting how often someone’s opinions are overturned by the Supreme Court is an excellent first approximation of how that person compares to the current composition of the SC, and thus how he would likely tilt its composition.

    Both your examples are a very far cry from the straw-liberal arguments you and Sean gave — you may still think they’re unreasonable, and I’m not planning on spending any more time to convince you otherwise, but I am curious about one thing: suppose you were in charge of printing the flyer that PAW was going to distribute opposing the Alito nomination. What would you have put on it?

  13. #13 Ed Brayton
    December 12, 2006

    JBL wrote:

    As a general rule, Ed, if you say, “I really hate it when everyone does X. Here are my complaints about liberals doing X,” you’re not going to then convince a liberal that you were evenhanded by pointing to the first sentence. (Not that this makes you wrong; I’m just surprised that you think quoting that line of your post back to me will make me feel better about the rest of it.)

    Given that we haven’t had an opportunity to see conservative interest groups attack a liberal judge’s record in a confirmation hearing in nearly a decade, it seems rather strange that would expect anything otherwise. The point remains that I am equally critical of this kind of oversimplification regardless of which side engages in it. My criticism remains true, of course, regardless of whether my claim to impartiality is true. But you can believe it or not, it doesn’t change the validity of what I said.

    This is a perfectly legitimate summary of Alito’s time on the bench — in particular, it compares him to an independent standard (the rest of the Third Circuit) and comes to the reasonable conclusion that he is more conservative, in a very specific way (re: corporations and government entities accused of discrimination) than the rest of the circuit. This claim is limited, accurate, and comes with excellent context: it’s not just “65% of the time,” it’s relative to other judges judging the same cases (and thus, presumably, relative to a reasonable approximation of “what the law actually says”)! I see absolutely nothing objectionable in that quote (and so maybe we will just have to agree to disagree about that).

    The problem, as I keep saying, is that it doesn’t tell us anything at all about whether his ruling was right or wrong, reasonable or unreasonable, justified or unjustified. And that is the only thing that should matter. So what if he disagrees with other judges? In any appellate ruling, some judges will disagree with other judges; that alone tells us nothing at all about who’s right.

    In the later example, again, comparing his ruling to the Supreme Court’s is totally valid: what other standard is there for the state of the law than what the SC rules? Noting how often someone’s opinions are overturned by the Supreme Court is an excellent first approximation of how that person compares to the current composition of the SC, and thus how he would likely tilt its composition.

    But, again, it tells us nothing at all about the quality of his rulings. The question is not whether he agrees with the “state of the law” in any particular case; the question is whether his written opinions are valid or not, whether they conform to the facts of the case and whether the legal conclusions are reasonable or not. None of this nonsense about how often he sides with businesses over individuals, or how often he’s in the majority or the minority, tells us anything at all about the only issue that matters.

    Both your examples are a very far cry from the straw-liberal arguments you and Sean gave — you may still think they’re unreasonable, and I’m not planning on spending any more time to convince you otherwise

    They are precisely the kind of arguments I’ve been aiming at, arguments that look at irrelevant issues like how often he agrees with different parties to an action, or how often he agrees with other judges, as a measurement of the validity of his work.

    but I am curious about one thing: suppose you were in charge of printing the flyer that PAW was going to distribute opposing the Alito nomination. What would you have put on it?

    I wouldn’t. The notion that you can provide even a thumbnail analysis of a judge’s work on a single sheet of paper is ridiculous. To be taken seriously at all, any such analysis should – at absolute bare minimum – contain an analysis of the actual text of his rulings, comparing them to the facts in the case and examining their consistency with those facts and the logic of his legal reasoning. Without that, all such attempts to sum up a judge’s record “in a nutshell” probably belongs in a nutshell. And that was really my point all along: advocacy groups like this, regardless of whether they are liberal or conservative, rely upon overly simplistic analyses like this to paint those on the other side as bad and tag them with groups they don’t like. Conservative groups do it, liberal groups do it, everyone does it. And no thinking person should take them seriously without going to read the rulings for themselves. Anything else simply lacks the substance necessary to reach an informed conclusion.

  14. #14 Dave L
    December 12, 2006

    I agree with Ed that studying specific rulings is the best way to determine any potential bias, but JBL does seem to have a point about reaching some conclusions based on comparing Alito the rest of the Third Circuit. If there are enough business vs individual cases in the Third Circuit, and there are enough judges to determine somewhat of an ‘independent standard’, and these cases are doled out somewhat randomly, then we should be able to say that if Alito favors businesses 65% of the time and the rest of the judges do so 40% of the time, his rulings seem to lean conservative.

    If I analyze how much it costs to get transmission work done on my Jeep among several mechanics and look at the history of how much they charge, if one of the mechanics on average costs $100 more than the others, I don’t think it’s a ridiculous statement to say that the mechanic is probably ripping people off. Sure, it’s possible that he gets an atypical sample and the vehicles he works on need more work, but given a large enough sample size, that is most likely that is not the case. Why is this different than the Alito situation? Am I wrong that the cases are given out somewhat randomly?

    The potential answer to my own question is that in my scenario, it may be precisely because Alito differed so much from the average judge that he was chosen for the Supreme Court (although I think it has more to do with politics); i.e., the other judges’ rulings were not as strong compared to Alito’s. I guess I’m missing what prevents this type of statistical comparison of cases across judges; is it that all cases are just too different? If my mechanic analogy is poor, choose something more complex like computer repair or cardiology, which are as complicated.

  15. #15 JBL
    December 12, 2006

    So, agreeing to disagree on the content it shall have to be. However, I would like to continue for a little with the meta portion of the discussion:

    “Given that we haven’t had an opportunity to see conservative interest groups attack a liberal judge’s record in a confirmation hearing in nearly a decade, it seems rather strange that would expect anything otherwise.”

    Well, I admit that if I thought it made sense in context to write about advocacy groups and how they deal with judicial appointments, a relatively heavy focus on the two more recent instances would be reasonable. One of the things that I found so odd about your post is that it’s not clear how you got to that topic in the first place — essentially, I see your post as a non-sequitur tied on to a mention of an unremarkable SCOTUS ruling. Because we view the actual content of the advocacy against Alito differently, for you the change of subject after the first sentence is a reasonable one to make while for me it appears to be essentially an unprovoked slam on liberal advocacy groups.

    “My criticism remains true, of course, regardless of whether my claim to impartiality is true. But you can believe it or not, it doesn’t change the validity of what I said.”

    I agree that your claim of impartiality (and the fact that you happened to focus on liberal groups) is irrelevant to the validity of your complaint; but again, we happen to disagree about whether or not the complaint (as applies to liberal advocacy groups, in this case PAW) is actually valid.

    One final point: the vast majority of people who get appointed to the Supreme Court (Harriet Miers, and perhaps some others, excluded) are well-qualified in the sense that they can be trusted to be reasonably competent and rule on the basis of the actual state of the law in any case where said state is evident. The problem is how they will rule when it’s not evident — where the SCOTUS will have the opportunity to actually determine the meaning and content of the law. In those cases, I believe it is important that the SC be composed of judges who can be counted upon to “rule the right way,” in the best interests of society. Most likely, PAW and other groups essentially agree with me about this — in the cases where the state of the law is at stake, whether the resulting ruling is well-reasoned or of a proper judicial tone or solidly based in textual evidence or anything else is less important than that it is good, whatever that happens to mean in the given case. And Alito (along with most of the rest of the court) can be reasonably trusted to vote in those cases in a way that is bad, and should have been opposed for that reason.
    There is an opportunity for a deep philosophical disagreement here on whether the law has, in most or all cases that come before the SCOTUS, some objectively determinable meaning — that is, if there really are “right” rulings. I tend to think that, with a reasonably high frequency, there is no “right” ruling, and in those instances I want a judge who does what is good. Of course, if you believe that the correctness of a ruling can be determined independent of its goodness always or almost always, the goodness of a justice ceases to be relevant.

  16. #16 kehrsam
    December 12, 2006

    Having worked in politics, I have to agree with Ed here. When I worked for a member of the House, the other side would mail out “Alerts” during election season, generally based upon a handful of votes. It is useless unless the analysis is much more detailed.

    Occasionally one vote (or judicial decision) is of such importance that it is all that matters, but generally there is a lot more involved. Even reading individual opinions it is difficult to get a sense of the actual reasoning process, which is what we should like to know. Did he struggle with it? Did he truly understand the issues raised by the other side?

    Further, there are non-ideological factors in play as well. Every judge takes the same standards of proof and applies them somewhat differently. We are demanding precision where perhaps none is possible.

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