After losing the trust-busting case Northern Securities v. United States, Theodore Roosevelt famously remarked about Justice Oliver Wendell Holmes, nominated to the Court only twenty months prior by the man whose policy he helped strike down: “I could carve out of a banana a judge with more backbone than that.” The relationship between the executive and judicial branches – theoretically independent but on a practical level intertwined through political considerations and personal connections – is now on the minds of many Court-watchers speculating over the implications of the next presidential election for the Supreme Court.
Amidst this backdrop Lee Epstein and Eric Posner investigate the presence of a “loyalty effect” in the voting patterns of the Justices from 1937 to 2014. It turns out Roosevelt’s frustration with Holmes (which was not within the studied time frame) does not represent the general experience of presidents over the past seventy-five years. In their study, Supreme Court Justices’ Loyalty to the President, Epstein and Posner find that Justices vote more frequently for the United States – including executive actors (e.g., the attorney general) and government agencies – when their appointing president is in office than under subsequent presidents, even those of the same party as the appointing president. The effect is most pronounced among Justices appointed by Democratic presidents, and it persists even controlling for other explicative factors potentially influencing the Justices, including executive-branch experience prior to sitting on the bench.
This loyalty effect exhibits a U-shaped curve over time. That is, in plain English, Franklin Roosevelt’s appointments demonstrate high degrees of loyalty, those of Harry Truman through Richard Nixon exhibit less loyalty, and the effect trends upward again beginning with Ronald Reagan’s appointments – meaning that all of the current Justices on the bench are part of this high loyalty-effect trend. (Reagan appointed Justices Antonin Scalia and Anthony Kennedy; George H.W. Bush, Justice Clarence Thomas; Bill Clinton, Justices Ruth Bader Ginsburg and Stephen Breyer; George W. Bush, Chief Justice John Roberts and Justice Samuel Alito; and Barack Obama, Justices Sonia Sotomayor and Elena Kagan.) The authors suggest, but only tentatively, that the high loyalty effect among recent appointments could be the result of the contentious nomination battles experienced since the 1980s, after which Justices feel loyalty to the appointment president for publicly backing them “despite the intense media glare, public scrutiny, and political opposition.”
The authors emphasize their hesitancy “about weighing in with normative recommendations based on our findings.” They do however hint that the loyalty effect may suggest a negative consequence of term limits for the Justices, one of several proposals for judicial reform now circulating in the public forum (and suggested, for instance, by Republican presidential candidate Senator Ted Cruz). The authors express concern that effectively enabling presidents to appoint more Justices may reduce the Court’s independence from the sitting president, who would presumably possess stronger loyalties on the bench.
The authors do make one normative claim, that “empirical researchers should turn their attention to political psychology and political emotions in the operation of government.” This nation of laws, not men, may be more a bit of both.