Cass Sunstein is a top-rank scholar, and I always learn a lot from his work, even when I think he is ultimately wrong. Unfortunately, however, I fear his recent study (coauthored with Thomas Miles) of judicial "activism" in Supreme Court justices' votes on cases reviewing federal regulatory agency decisions doesn't tell us as much about the subject as one might like. There are three major problems: the way they analyze agency decisions, the failure to consider the possibility that there are centrist ideologies as well as "liberal" and "conservative" ones, and their interpretation of Justice Stephen Breyer's record (the justice they claim is the most "restrained").
Essentially, Miles and Sunstein first code each agency decision as "liberal" or "conservative" (e.g. - a decision to reject an environmental group's claim that a regulation isn't broad enough is "conservative"), and then try to determine how "activist" each justice is by seeing how often they vote to overrule agency decisions. Lastly, they measure how ideologically "partisan" the justices are by determining how often each one voted to overrule "conservative" decisions versus "liberal" ones. Justice Kennedy comes out as the most ideologically "neutral" justice because he voted to overrule conservative agency decisions about as often as liberal ones, while Breyer comes out as the most "restrained" (because he was the least likely to vote to overrule agencies overall).
Here are my three reservations about this framework:
I. What about the Distribution of Agency Errors?
When the Supreme Court reviews agency actions, what they are trying to do is determine whether the agency erred in its interpretation of the federal statute that grants it the regulatory authority in question. Miles and Sunstein implicitly assume that agencies are equally likely to err in a conservative direction or a liberal one. Thus, if Justice Thomas votes to overrule liberal decisions far more often than conservative ones, that shows his ideological "partisanship" in a conservative direction. However, if agencies are more likely to err in a liberal direction than a conservative one - then perhaps his voting pattern simply reflects the distribution of agency errors, not Thomas' ideological biases. Maybe Thomas is the only one fully able to set aside his own biases and focus only on the "true" pattern of agency behavior. Miles and Sunstein's approach can't rule this possibility out. And the same goes for Justice Stevens' apparent tendency to overrule conservative decisions far more often than liberal ones; perhaps that's just a reflection of the agencies' pattern of errors (which may tilt more in a conservative direction), not Stevens' biases. I won't go into detail here, but there are many theories of agency behavior that posit that liberal errors are more common than conservative ones or vice versa.
II. What about Centrist Ideologies?
Miles and Sunstein's framework assumes that there are liberal and conservative ideological biases, but doesn't consider the possibility of centrist biases. Thus, Justice Kennedy is seen as ideologically "neutral" because he votes equally often to strike down liberal and conservative agency decisions. But let's assume for a moment that Kennedy is an ideological centrist, and all he cares about is enforcing that ideology against agency decisions that deviate "too much" from his centrist preferences. He's willing to overrule both deviations in a conservative direction and those that go in a liberal one. Commitment to imposing ideological centrism could explain Kennedy's voting record just as readily as ideological "neutrality." I don't myself know which of these explanations is accurate (perhaps neither is). But the Miles-Sunstein methodology can't distinguish between them.
III. The Special Case of Justice Breyer.
Miles and Sunstein praise Justice Breyer as "the champion of modesty and restraint" because he is the least likely to vote to strike down agency actions overall. Perhaps Breyer deserves this praise. However, it's important to remember that Breyer has a strong ideological commitment to regulatory agency autonomy. In various writings, such as his 1993 book Breaking the Vicious Circle, Breyer has argued that regulatory agencies staffed by expert bureaucrats should be given greater autonomy in order to insulate them from what he regards as harmful pressure from the democratic process. He also believes (for similar reasons) that they should to a large extent be insulated from judicial review. Breyer is a leading defender of the "rule of experts" theory of governance - at least when it comes to regulatory policy. This belief is no less an ideological commitment than is a commitment to conservatism, liberalism, or centrism.
Is Breyer's apparent reluctance to overrule regulatory agency actions driven by "modesty and restraint" or by his ideological commitment to governance by expert regulators relatively insulated from outside control? I honestly don't know the answer; quite possibly both factors are at work. Or maybe neither is. But Miles and Sunstein's methodology can't distinguish between the two.
