November 2, 2005

"A remarkable pattern" of "almost uniformly conservative" dissents?

On Monday night, I was on a radio show with lawprof Cass Sunstein, talking about the nomination of Samuel Alito, which Bush had announced just that morning. Sunstein stressed a study of 41 Alito dissents, which he had -- amazingly -- completed that day. I see that he published an opinion piece about his study in the Washington Post yesterday:
As an appeals court judge, Samuel Alito has compiled a massive record that includes more than 240 opinions. Of these, the most illuminating may well be his 41 dissents -- opinions that he has written by himself, rejecting the views of his colleagues.

When they touch on issues that split people along political lines, Alito's dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues. In his dissents, at least, he has been a conservative's conservative -- not always in his reasoning, which tends to be modest, but in his ultimate conclusions.
"Almost uniformly" -- what does that mean? There were 41 cases. In how many of the dissenting opinion did he take a position that Sunstein could code as "more conservative" than that taken by the rest of the panel (that is, the other two other judges from what, Sunstein concedes, is the "relatively liberal" Third Circuit)?

The WaPo piece doesn't give the number, but on the radio show -- which you can listen to here -- Sunstein says twice that "two dozen" of the dissents go in the conservative direction. 24 as compared to 17 is a "remarkable pattern"? 58% of the time is "almost uniformly"? I don't get it!

Or is it that there is some subcategory of the 41 cases that Sunstein viewed as containing "issues that split people along political lines"? So how many dissents in fifteen years are we talking about? Perhaps it's 27, because he did also mention that there were 3 cases in which he coded Alito's dissent as more liberal than the rest of the panel.

Can someone replicate the coding and counting of the Alito dissents? Apparently, it's a one-day job.

Also, when a judge dissents is he "rejecting the views of his colleagues"? Judges' conclusions upon analyzing legal issues aren't "views," and a disagreement among a panel of three judges isn't properly characterized as a "rejection" aimed at colleagues. They simply reached different conclusions and are saying as much.

UPDATE: Cass Sunstein emails:
In terms of counting: I looked over 41 dissents (not including the 14 or so concurring and dissenting opinions). Some of them are easy to code in ideological terms; some of them aren't. Somewhere between 13 and 20 are best treated as "neutral," that is, no ideological valence at all. Of those with an ideological valence, somewhere between 100% and 85% are to the majority's right. My best estimate is on the high end of that range. -- Reasonable people can differ, of course, about the precise calculation, but by any objective count, I think, the overwhelming majority (of those with an ideological valence) are to the right -- and more important, in a distinctive and interesting way, that is, they ask for deference to powerful institutions (and hence show little or no discernible libertarian streak). -- I confess that I wasn't looking (or hoping) for this pattern. It really surprised me. I really want to be in favor of Alito and haven't made up my mind -- this is a just a source of concern.

So, spread out over 15 years on the bench, we're talking about maybe one case a year. I'm not so ready to feel concerned about this. I'd like to see the actual cases. It could be that Alito is just turning out workmanlike analysis where the other two judges were stretching for a liberal result. Are the dissents on panels with especially liberal judges or in cases where it was tempting to the majority to overreach in a liberal direction? Are the dissents clustered in his early or later years or evenly spread over the years? Somehow these statistics don't speak to me other than to say: examine this more closely.


HaloJonesFan said...

What he could be trying to say is that the only common theme in the dissents was a conservative one. That is, all of the dissents were for various reasons, but if you categorized all of the dissents, the only category with more than one or two entries would be "more conservative".

Although this begs the question of how Sunstein defines "conservative". For example, he cites a case where..."A local zoning board imposed land-use restrictions on a Hindu temple. The court ruled that the restrictions were arbitrary and unlawful. Alito concluded that they were legitimate."

Replace "Hindu temple" with "Christian Church" and you get a Democratic position!

Ann Althouse said...

And generally, don't liberals approve of zoning?

Sammler said...

Is it really a one-day job? Simply asserting that the positions must be the conservative ones seems like it could be done much quicker.

Jake said...

"Alito's dissents show a remarkable pattern: They are almost uniformly conservative. In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues."


Sean said...

Did you try e-mailing Prof. Sunstein and asking him for a list?

Troy said...


"Cass" rhymes with the region from which he pulled his study.

It seems from listening to and reading Sunstein he defines "conservative" as anyone who doesn't agree with him.

P. Froward said...

The LA Times found a number of Democratic judges who've worked with Alito and think he's a good egg.

Frank Borger said...

Having grown up during Daly the Elder's reign, my view on politics is jaded. What makes you think it's a "one day job?"

Were I truly cynical, I could surmise that the left had prepared chop papers on ALL the first line candidates before-hand.

Wasteland Fan said...

I'll quibble with your quibble about the distinction between "views" and "conclusions." Seems to me that judicial opinions are usually both. The holdings being the conclusions; the discussion/analysis of the facts and law that lead to the holdings being something I'd think could fairly be labeled the views.

In terms of rejecting views, it seems to me that when a judge declines to join an opinion it is a rejection of that opinion and the views it incorporates. However, that would suggest to me that Sunstein should have included in his analysis any concurrences that Alito wrote to see if the "view" he took to arrive at the same "conclusion" as the majority was more conservative than the majority.

wildaboutharrie said...

Pro Fro, thank you for that link. I lean left and I have no stomach for knocking a good conservative man around in a Senate brawl.

jinnmabe said...

It's not like a judge sits around on his keister waiting for his colleagues to write their opinion so he can know whether or not to join their view club. The way Cass phrases it sure gives that impression, though.

Mary said...

"Judges' conclusions upon analyzing legal issues aren't 'views,' and a disagreement among a panel of three judges isn't properly characterized as a 'rejection' aimed at colleagues. They simply reached different conclusions and are saying as much."
I think that last sentence is telling. Those different conclusions can have enormous impact on how our society works. Maybe the process of reaching the decision is a simple one, but what of the real-life consequences of such a conservative bent on people's lives?

Also, Frank Borger: It's spelled Daley. And Troy, no ad hominem attacks here please. She's trying to keep it civil to keep a balance of views as much as possible.

vnjagvet said...

For all of the Althouse gang who have a background in statistics, is Prof. Cass's analysis as presented statistically significant?

Arnold or Arnie said...

I think she's shown that arithmetic is still of some use.

WisJoe said...

In my opinion, a dissent qualifies as a rejection of the conclusions reached by the judge's colleagues. Either the dissent rejects the factual premise upon which the majority based its opinion, or it rejects that application of the law to undisputed facts - in either case it amounts to a rejection of a conclusion.

Give Prof. Sunstein another 24 hours and he will have statistical table of all of Alito's opinions with factors outlined to determine whether his conclusions were to the left or right of his colleagues. I think he should be cut some slack; however, the more interesting study would be those dissents that ultimately became the law or were outright rejected by the Supreme Court or the Congress (if a statutory interpretation issue).

WisJoe said...

Insert "she" for "he" in my prior post.

Lhombre said...

Hi Ann, this is not directly related(?) to this post. I am attaching a comment to your kind response on Richrd's Blog as to my dismay over the removal of the judge in the DeLay case. I posted the same on Richards Blog in appreciation of Jeff's comment as well.

Jeff, and Ann: Thanks for the response to my curiosity. I offer the following to your comments Ann.

“Appearance of unfairness” aside (if only for the briefest of moments here) I am bewildered and perplexed by your statement “Liberals are traditionally very respectful of the rights of those accused of crimes.” Now either I have not understood the thrust of your complete rationale regarding my question about DeLay or I am feeling the pangs of the type of semantical acrobatics I normally associate with the intentional ambiguity that the present presidential administration has structured much of its process on. Have I naively believed that everybody respected the rights of those accused of crimes? Your comment, for me, begs the question of “Appearance” of unfairness.

I guess I am going to need a little more clarification on the matter. So far only two things have given me an opening as to how I think I understand what is going on. First, Jeff’s paraphrasing of Orwell that “while all judges are impartial, some are more impartial than others,” and secondly; a response to a very negative criticism to the recipient of this years Booker Prize in Literature, author John Baneville and his novel “The Sea” in an article in today’s Arts section of the New York Times.

The Times, filtering its criticism through a “standard” of the use of language, heavily criticized Baneville’s books for their opaqueness and density to which he asserted some puzzlement. Commenting on his use of language and his ethnic background as an Irishman he said: “I’m constantly being accused of being elitist…But I write quite easy, approachable books.” Followed by “English writers for the most part try to follow Orwell’s dictum that prose should be a pane of clear glass through which you look. (Italics mine). “But Irish writers think of prose style as a distorting lens. We love that ambiguity; we love that a word can have three or four meanings at the same time.” We’re a language based society. You can get away with practically anything in this country if you give a good account of it.” To which quickly comes to mind a line often used in the Irish neighborhood I grew up in, “ Hey we’re all Irish on St. Patty’s Day.” But…I thought that only came around once a year! I’m thinking…not!

Perhaps it is all substance versus style. Whatever the case, with all due respect, I’m not swayed by your perception or rationale Ann. An “appearance” of anything leaves a little too much room for the kind of “language” that just as easily produces only more “appearances.” And since, if “truth” is what we are after in De Lay’s instance, then….well you tell me.

Meade said...

Here, Ann -- the sledgehammer you left at my place.

P. Froward said...

Lhombre, your point about clarity is well taken.

vnjagvet said...

It is useful as presented. As is Ann's conclusion.

R C Dean said...

In the overwhelming majority of cases, he has urged a more conservative position than that of his colleagues.

It is interesting that Prof. Sunstein seems to assume that "more conservative" is prima facie a bad thing.

You can't imagine him writing such a column about a judge who urged a more liberal position than his colleagues, could you?

In other words, while "conservative" may be a bug to Prof. S., to others (apparently a plurality of voters) it is a feature. The good Professor should look forward to his hit piece being used to tout the nomination.

R C Dean said...
This comment has been removed by a blog administrator.
bearbee said...

Sunstein NPR interview

PD Shaw said...

I would also be curious if these "more conservative" dissents corrolate to a higher or lower rate of reversal. Are his "more conservative" dissents more predictive of the current Supreme Court's rulings?

Simon said...

"Somewhere between 13 and 20 are best treated as neutral, that is, no ideological valence at all. Of those with an ideological valence, somewhere between 100% and 85% are to the majority's right."

Somewhere between 13 and 20 out of 41 are neutral? So somewhere between 21 and 27 are not neutral. Of the remainder, somewhere between 100% and 85% are to the majority's right? Big, impressive percentages! But in actual numbers, that means that somewhere between about 18 and 27 of Alito's dissents are to the right. Persistent conservative shenanigans - two conservative dissents per year! Holy cow, Cass - a Republican President nominated a jurist who you think has reached conservative results in two cases per year on average? Shocking stuff!

Seneca the Younger said...

vnjagvet, I can tell you immediately that the conclusions, as statistics, have essentially no value, because of selection effect. First of all, Sunstein selects 41 dissents --- but ignores any concurrances, or any times when Alito simply joins the majority opinion.

By selecting only dissents, Sunstein ensures that his sample will be heavily skewed, and not a valid comparison with the Court as a whole.

I don't have the number at hand, but the total number of opinions I've heard is in the neighborhood of 300. So, assuming for arguments' sake that 300 is precise, Alito has dissented 41 times in 300. Thus, Alito has concurred roughly 87 percent of the time, and dissented roughly 13 percent of the time. According to Sunstein, between 13 and 20 of these dissents had some "idiological valence", but he doesn't compare how many of his concurrences had an "ideological valence."

So first, Sunstein selects only dissents, then applies some unspecified rule to identify the ones with an idiological content in his opinion. This selection gives use between 13 and 20 cases in which Sunstein feels there is some ideological difference between Alito and his collegues on the Court.

Again assuming the 300 figure, that means that Alito has differed from his collegues in ways that Sunstein chooses as "ideological" (300-41)+(13..20) times. That is, Alito agreed with his collegues 259 times, and disagreed with them in cases with "ideological valence" at most 20 times --- approximately 7 percent as many cases as he agreed with them.

It would appear that a realistic, and numerate, assessment of these figures suggests that Alito is 7 percent more conservative that his Court over all.

Pogo said...

Re: "a realistic, and numerate, assessment of these figures suggests that Alito is 7 percent more conservative that his Court over all."

Really? The I want a do-over. Again.
Geez. What's Alito got against Scalia, anyway?

Seneca the Younger said...

Sorry, a correction: that should be, as Simon notes (I just can't bring myself to say "as Simon says") between 21 and 27 that are both "ideologically valenced" and "more conservative". making Alito between 8 and 10 percent more conservative than the court as a whole.

Simon said...

Isn't it funny how there is now bleating from liberal law professors who said not a word when Miers was nominated? Where was athe two hundred signatory letter opposing the least qualified nominee in decades? The liberal op/eds screaming that this was the end of Roe? Where was the sort of fracas generated over Roberts and that will be generated over Alito?

Seneca the Younger said...

If we really want to beat this to death, we could note that either not a single one of those 259 concurrences had an "ideological valuence" --- which means that Sunstein is comparing all 20-odd cases that had an ideological content at all, which suggests that the impact of ideology is actually quite small.

Or, more likely, that roughly half of those cases on which Alito concurred had an "ideological valence", which would suggest that Alito agreed with the ideological position of the rest of the Court about 4 times in 5.

Which means Alito probably should be counted as a liberal, right?

vnjagvet said...

Careful, Seneca, the right might lose heart in this and criticize the President for nominating a "mushy" conservative. Another Souter?

HaloJonesFan said...

I would say that the quibbling over statistical significance is going in the wrong direction. Suggesting that a study of only the dissents is "skewed" is inaccurate--because it is not random as to whether Alito dissented!

The commentator's point, in ignoring the assents, is that dissent requires a stronger feeling than assent; going along to get along is easier than going against the grain. So the commentator suggests that in more than half of the cases where Alito's interpretation drove him to dissent, the interpretation was based on conservative thinking.

So deriding this column based on statistical reasons isn't appropriate. I'd go back to what I said in my earlier post: A better question to ask would be "how does the commentator define 'conservative'?" You could also discuss the "strength" of the conservative positions in his dissents--several dissents based on moderate-conservative positions are not as significant as a single one based on highly-conservative positions.

Silicon Valley Jim said...

I'm about as conservative as they come, but I'm not about to attribute any particular animus to Professor Sunstein. Professor Sunstein is a liberal; there's no secret about that. I think that he's performed a valuable service here in providing some real data to assess where Judge Alito falls on the liberal-to-conservative spectrum of judges. Of course, one can disagree with the professor's assessment of one or more dissents as "liberal" or "conservative". He has, however, provided a list of the decisions and how he has categorized them.

I think, moreover, in the wake of concerns from my fellow conservatives that Harriet Miers was not conservative enough, that it's proper for Professor Sunstein to address the issue of how conservative Judge Alito is. The only thing that I find at all objectionable is his use of the phrase "remarkable pattern". Would that all my errors and misdeeds were that small.

Old Dad said...

I think the good professor's methodology is suspect, but let's grant his conclusion, and let's grant that conservative means what ever he thinks it does which I surmise is not good.

Now let's also grant what is widely suspected--that Judge Alito is an originalist, and devoted to the law as written.

It follows, then, that the laws under Alito's review were conservative, and that Alito's political temperament remains irrelevant.

JohnG said...

How are these terms arrived at?

Is a dissenting opinion automatically considered to be one written after the majority opinion? Could the situation arise where Alito was assigned to write an opinion for the Court, but that his two brethren thereafter disagreed with his holding and thus authored another opinion, that becoming the majority opinion? In such case, although written first, Alito's opinion would be assumed to have been a rejection of the majority opinion (an incorrect assumption) and written thereafter (also an incorrect assumption).

Is there a uniformity to the terms so that a meaning not ordinarily visible can be observed? Or is there variance in the manner in which opinions appear?

Is the phrase "Judge X, writing for the majority" applied before or after the opinions are all written? How would a Judge know if he/she was to be part of the majority until an opportunity to read the first drafted opinion was had?

I feel like I'm part of an old Abbot & Costello routine here: Who's on First?

Gerry said...


I am planning on taking this post and running with it (trying to independently recreate the results, do followup analysis along the lines that you suggest, etc).

Just because it sounds interesting.

However, this whole thing does sound like the sort of affair that will lead to a big "so what" answer. Is it really going to be a surprise that a conservative justice on a court known for being relatively liberal is going to have the vast majority of his dissents be on the conservative side of things?

Did he even think to do a similar analysis when Justice Ginsburg was nominated? Would anyone expect anything but to find her dissenting from her circuit primarily on the liberal side?

This strike me as, once again, "he's a conservative judge, and that's enough to be concerned about."

Dr. Filthy McNasty said...

Since a "lefting leaning" dissent corresponds with rulings made on the basis of modern social anaylsis rather than strict Constitutional interpretations, why should Sustein reasonably expect ANY "left leaning" opinions from a constructionist judge?

That is, is Sustien saying that Alito should occasionally issue rulings that are not tied to strict Constitutional interpretation?

Gerry said...

In the meantime, if you are interested, here's a look I took at one of Alito's articles. link.

Mike Liveright said...

Case listing

A) I do hope that we get more links to the original information... It would be nice to develop a page that had the ~300 cases, some notation of

0) Year of decision (and an ID) e.g. 1995-aa or whatever is "reasonable"

1) Position of Alito, e.g. Unanimous, Majority, Minority, Single opponent.

2) His decision upheld or overturned.

3) A short summary of his "position", e.g. For spousal notification,

4) A link to the details of the case.

That way we could do our own analysis further, and use this page as a basis of common discussion...

B) I think that the question of how close to politically centrist (relative to his other judges) is the probability that he would disagree to the level he does if his decisions were based on a coin toss. an I would consider only those that there was some disagreement, on the assumption that a unanimous decision is not indicative.

Gerry said...

Hmm. I have yet to get to the point of looking at any particular dissents, but already I am questioning Cass' numbers.

Going through those just for the dissents, I find 45 from the 3rd Circuit. That is more than the 41 number referenced.

Maybe when I get into the exact dissents I'll be able to see from where the discrepency comes.

JAGCAP said...

"Conservative valence"
"Liberal valence"
I think you measure those by sampling the emnations from the opinions' penumbral literary constructs with a solarstitial frannistan... a left-handed frannistan, of course...

Greg D said...

Did Professor S include a list of the 41 cases, along with a breakdown on how he saw each case?

It would be interesting to see what Cass calls a "conservative" decision, and how that differs from "followed the law and precedents, rather than Cass'es biases".

DR said...

What's particularly annoying is Prof Sunstein is being snapped up by all of the liberal talk shows doing segments on Alito. For example, I heard him on Terry Gross' NPR show summarizing his study conclusions for Terry and her listeners.

Meanwhile, I'd be nice to see moderates like Ann on more of these NPR shows for a more balanced POV

Ann Althouse said...

DR: Sunstein is a very prominent legal scholar. It's quite fitting that he get the very best invitations to do shows like this. And he is cranking through the cases producing information that sounds useful. I have a problem with the material myself, but respect his attempt to go through the evidence. I'd like to redo it myself if I had time. But I'm not as fired up as most people are about Alito. I'm more interested in keeping track of how people try to take him down than in generating statistics in his favor. Let a hot partisan or someone on the payroll do that.

Revenant said...

If the appeals court in question is, in general, liberal -- and it is-- then isn't "Alito disagrees in a conservative direction" entirely consistent with the idea that he is a moderate with solidly mainstream legal views?

Even if you accepted Sunstein's data at face value, it still doesn't demostrate that Alito is right-wing -- only that he is more right-wing than a left-wing court.

Seneca the Younger said...

A couple of things here. First, as far as whether it's worth criticizing Sunstein's methodology, my own opinion is that he's using numbers as Big Scary Things That Prove Something. Since he's doing so in a fashion that's either consciously misleading or simply innumerate, that's sufficient to deserve a little mild obloquy.

Second, I agree that the question of statistical significance isn't all that interesting, but without the statistical content, the whole argument comes down to "Cass Sunstein, a noted liberal legal scholar, thinks Judge Alito, nominated by President Bush, to be too conservative."

To which the only reasonable response is "well duh!"

As to Ann's point, the real question is whther we could have predicted the outcome of Sunstein's "study" before seeing his results. I personally think we could have; he's advocating a position, not making an objective study. So my contention would be that he's actually contributed nothing to the discussion, because there's no new information there. (There's no information content if there's no suprise.) Or, alternatively, considering his argument in a numerate fashion, the surprise, and the additional information content, has to be that Alito differed so rarely from the Court, and is therefore perhaps less conservative.

AST said...

Does Sunstein distinguish between legal reasoning and result?

Most of the discussion of judicial opinions in the media focuses only on the results not the legal reasoning and principles.

Also, what does any of this tell us about Alito's likely choice when he no longer has the restraints he had in the Circuit Court?

John Thacker said...

The other question is how often did he dissent compared to not dissenting. If he generally dissented in a conservative direction but also didn't dissent all that often, then he would be somewhat more conservative than the Third Circuit, but he wouldn't be "out of the mainstream" either. It shouldn't be a shock that the President is going to nominate someone who is more conservative than the perfect middle-- this sort of study doesn't tell people how conservative he is, either.

AST said...

Where is that "outside the mainstream" rule in the Constitution?

Same place, I suppose, where it says the nominee has to be "one of the leading lights in American jurisprudence" and "must think deeply and lucidly about legal issues?"

Wintermute said...

I can't recall which lawyer-commentator described Alito's opinions as pretty libertarian. The analyst under discussion here uses conservative without separating opinions into social vs. economic conservatism. Libertarian vs. statist would be a more heuristic classification for future prospects.

37383938393839383938383 said...

The real question is whether Alito is perfectionist, fundamentalist, minimalist, or impotent.

XWL said...

So rather than rehashing all this boring 'law' stuff, the Senators should just demand each nominee to take all those internet based quizzes (you know, which Simspon's character are you?, which animal are you?, which Greek god are you?, which shade of purple are you?, and the like - and one of those might be made up) and base their votes on the results (no Chief Wiggums on the Supreme Court, I'd much prefer an Apu, or even a Bart).

(I'm resisting the use of an emoticon to convey the mirthful tone intended for this post, I'm hoping that is self-evident, yet unfortunately I couldn't resist redundant parenthetical statements, oh well)

XWL said...

Oh and as far as Cass Sunstein churning out all that analysis so quickly.

I picture a Dickensian style factory full of law students slaving over the law books Bob Cratchet style with Prof. Sunstein hovering over them demanding faster results while wearing a top hat and waist-coat (and frequently peering at his pocket-watch)

If you want to match the alacrity of the big names you need to abuse your students and privileges the way they have often been caught doing

(I'm thinking the usual unattributed researcher, or accidental purgery scandals that pop up now and then with the frequently published professors, and no I'm not accusing Prof. Sunstein of anything, I was thinking along the lines of all the biographical historians caught with their pants down)

Editor said...

I suspect that Sunstein included Alito's dissent in FEDERAL LABOR RELATIONS AUTHORITY vs. U.S. DEPARTMENT OF THE NAVY as one of the "two dozen conservative dissents."

It seems to me that this was not a particularly conservative dissent at all.

In fact his dissent there shows a civil libertarian streak to Alito that Sunstein claimed in his letter to Ann that he couldn't find.

I have a summary of the case and Alito's dissent posted here:

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aminos lahragui said...

Sorry, a correction: that should be, as Simon notes (I just can't bring myself to say "as Simon says") between 21 and 27 that are both "ideologically valenced" and "more conservative". making Alito between 8 and 10 percent more conservative than the court as a whole.

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