On Judicial Decisions, Part 2

The first part of this inquiry into what insights the LEO test may offer when applied to judicial decisions suggested that an ideological preference in the opinions proferred by members of the Federal Court might be discernable, at least when appled to such landmark cases as Brown v. Board of Education of Topeka KS and Miranda v. Arizona.  The scores that resulted from an analysis of the text of the opinions not only appeared to describe the preferences of the majority of the Supreme Court, but also the preferences of concurrent and dissenting opinions.  Taken together, these scores suggested a clear ideological difference between the majority opinion and the dissent in Miranda v. Arizona, especially, along predictable lines outlined by the LEO model. 
    Furthermore, if the method of observation as applied to judicial decisions is taken to be substantively valid, a moderate should be disturbed by the nomination of John Roberts to the Supreme Court to fill the seat vacated by Sandra Day O'Connor.  If this analysis be valid, moderates should be doubly concerned since today the president nominated Roberts again, this time to fill the late William Rehnquist's position as Chief Justice, despite the paucity of bench experience on Roberts' part.   The results of the application of a direct LEO analysis suggested in the Ramaprakash case (at least) that Roberts' ideological position was so far from 'center' or even moderation that were one to base his assessment of Judge Roberts on the Ramaprakash case, one should cast aside any hope for moderate discretion on Roberts' part, should he be confirmed.

One must remember, however, that in science all conclusions are tentative, and political science is of course no different.  At this time I have not gathered enough evidence to arrive at any general conclusion that Roberts is an extreme establishmentarian.  Nor have I conclusively ascertained that the current application of the LEO test to judicial decisions is substantively valid. 

In fact, the measurement of the next case, Roe v. Wade (1973), suggests either that a critical analytical component for judicial decisions may be missing, or else that the issues involved are somehow extraordinary.   As I have stated earlier, until this component is found I cannot be truly confident about any conclusions derived from the curent application of the LEO test.

Roe v. Wade (1973)

First of all, allow me to point out although I have read nowhere near as many court opinions as any practicing attorney, I found the  Roe decision to be perhaps one of the oddest sets of legal opinions I have yet encountered.  I may be mistaken about this conclusion based on my limited experience (and both Mark and Jeremy may feel free to correct me if I am), but I doubt that many other opinions go to the lengths as the Roe decision in order to explain  the opinion of the court.   

    To wit, the Roe decision includes references to classical sources such as the Persian Empire, Hippocrates, the Pythagorean School, Plato, and Galen.  It also cites English sources Bracton and Coke in the "common law" section, English statutory law, British parliamentary decisions from the early 20th Century, and finally American Law.  Indeed, the degree to which the Supreme Court relies on philosophical as well as classical and medieval sources to establish the opinion of the court in this case appears, at least to this humble layman, to be extraordinary.

    Indeed, Mark Zuniga's comments on an earlier post suggests that the language of Roe is in fact so unusual that legal professionals typically rely on opinions subsequent to it, rather than Roe itself.  "The first thing to look at," he told me,  "is Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992).  A future article may yet put this case to the test.

    That said, how do the opinions measure under the scrutiny of the LEO test as it is currently applied?

    Roe v. Wade contains three distinct opinions: the prevailing opinion, Justice Stewart's concurrent opinion, and Rehnquist's dissent.  The test to which these opinions were subjected is precisely the same as described earlier for the Brown decision, the Miranda decision, and others.  The hypothesis regarding this set of opinions is this: Since Roe v. Wade is (to paraphrase Jeremy Jose) a 'notoriously liberal' decision, or else (more likely given the peramaters of the LEO model) a libertarian position, with emphasis on the part of abortion supporters on the individual's 'right to choose' whether or not ot terminate a pregnancy, it should contain either a high instance of egalitarian (or 'liberal') indicators or a high number of libertarian indicators.  Rehnquist's dissent, on the other hand, should contain a high number of establishmentarian (or 'conservative') indicators, given his reputation as the standard-bearer for active conservatism in the Supreme Court.

For the record, this is not in fact what was observed, which perhaps makes the Roe decision even more perplexing.  See the graphs below (Click to enlarge):

Roe v. Wade Majority

      

Justice Stewart's Concurrence

Justice Rehnquist's Dissent

Except for the second test table which measures a higher percentage of libertarian indicators in the Roe majority sample, the test generally yields a higher percentage of establishmentarian indicators than any other.  Was the language of the majority opinion based upon conservative rhetoric?  Perhaps; perhaps not.  In his commentary on an earlier article, Jeremy Jose mused that    

"Legal opinions are probably a bad thing to analyse because judges consciously (in rhetoric if not always in practice) try to make it look as if they're doing nothing but applying precedent. You'll only rarely find broad assertations of philosophical principles, most of the time judges will be trying to obscure what they're doing by making it look like they're doing nothing."

This may be precisely what happened with the majority opinion in Roe v. Wade. 
Even so, all is not lost.  Interestingly, Justice Stewart's concurrent opinion is entirely consistent with the original hypothesis, for the test of this opinion returns a decidedly libertarian signature with every test table. 

The most peculiar result was that of the dissent by Justice Rehnquist.  Unfortunately Justice Rehnquist died two days before I could post this result, and so we can no longer hope to ask him directly about the language of his dissent, and shall have to settle for a close reading of the text he leaves behind.

    The first measure presented a strong 'right-libertarian' score, with over 55% of the total number of indicators appearing in the sample identified as references to 'liberty'. 
The second and fourth measures are much more peculiar, for they suggest that the dissent focuses on 'equality' rather than 'order' for its ideological direction.  Nevertheless, the fourth measure does produce a higher percentage of references to 'order' than any of the others,  and it is perhaps more fitting to compare it with the third measure, which shows a nearly centrist position, but more closely resembling a 'centrist communitarian', if such an ideological creature exists.

    A closer examination of the language of Rehnquist's dissent reveals something that the LEO test as it is currently applied is ill-equipped to handle.  While Rehnquist does in fact make several references to the principle of equality, and in particular to the "Equal Protection Clause" of the Fourteenth Amendment, he does so to explain his belief that it has been applied erroneously by the majority of the Court. This language is the likely reason for the high relative 'E' score. 

However, it must also be noted that the total number of ideological indicators in Rehnquist's dissent was quite low (the highest total was only 23 references) while the total rhetorical volume for the majority opinion appears sufficient to have drowned out Rehnquist's dissent.  See below (click to enlarge):

In the above graph, the y-axis indicates the raw number of references to liberty, equality or order as defined by the test tables indicated within the given samples.  Thus, "Majority 1" refers to the results of a search of the majority opinion for ideological indicators (keywords) defined by the first test table.  "Stewart 1" refers to similar results for Justice Stewart's concurrent opinion, and "Rehnquist 1" refers to a similar test of Justice Rehnquist's dissent.

When these raw numbers are compared, Rehnquist's dissent remains far below the other opinions in the number of ideological indicators defined by the four test tables used.  Such a low number of indicators in the sample suggests that Justice Rehnquist may have consciously attempted to avoid grounding his dissent on an ideological argument, while the majority sought to find an established argument supporting their position.

But does the above result mean that the language of the majority in Roe spoke from a fundamentally 'conservative' position?  Is such an argument even possible?

At this point it is instructive to consider the basic character of the abortion issue.  Although it has emerged in the last 32 years as perhaps the single most divisive domestic political issue in the United States, it does not conform to any single ideological preference.  Theoretical arguments both for and against abortion can be made from the standpoint of all three ideological axes.  For example:

A libertarian argument for abortion might focus on the freedom to choose what to do with one's body and one's cells, and with this freedom comes the freedom neither to conceive bear a child.  According to this argument, until the child leaves the mother's womb (and maybe even after, if the putative libertarian is an anarchist) the child's remains the property of the mother, and depending on the extent of the argument, the father as well. 

A libertarian argument against abortion might emphasize the responsibilty of each individual who chooses to have sex, and might be inclined to advocate a limited abortion right in cases of rape or endagerment to the life of either mother or child. (Interestingly the Texas law challenged by Roe appears to have made this exception.)

An egalitarian argument for abortion might focus on the perceived inequality in the role of mothers and fathers in gestation, that pregnancy relegates the pregnant to the status of second-class citizens, and that women are effectively slaves both to fathers and children.  Under this argument, the unborn is an unjust burden, and active steps must be taken to ensure either that fathers bear the same burden, or that women bear no burden.   

An egalitarian argument against abortion would emphasize the equal right of the child to live, that the unborn are human beings, and therefore posess the same fundamental equality with their parents.  According to this argument, elective abortion is a kind of murder, for it unjustly deprives a fellow human being the equal enjoyment in the right to life.

An establishmentarian argument for abortion might emphasize the need to regulate public health so that women do not endanger themselves by seeking illegal abortions in potentially septic environments. Or, more disturbingly it may focus on the need to regulate population growth, to weed out unhealthy or undesirable traits or populations, or to minimize the burden of state support for indigent populations--in short to manage a part of an industrialized population.

An establishmentarian argument against abortion would focus on the practice as a threat to the established order, a transgression against either a moral order or a religious edict, or a violation of traditional practices and codes of ethical conduct.  This argument would especially arise if innovative techniques of abortion were introduced. 

For these reasons, any regime --liberal, conservative, or libertarian; communist, fascist (or anarchist?)-- must at some point confront the issue itself. 

Comments

[JimDesu]

I don't see any of this as a problem for LEO, only for the tools to apply it. Of course, any text comprising a political argument is going to have speach that isn't indicative of the position being taken. For instance "in his call for supposed 'social justice' my distinguished colleague from Tennessee demonstrates that he's a total melon-head". This text shouldn't up the E score of the speaker, but my tallying program will do so, since it doesn't know the meaning of anything. Don't confuse the power of the philosophical model (which appears to check out) with the insufficiencies of my scanner-tool. The reason that judicial stuff isn't coming up well, IMHO, might just be because they're actually presenting arguments, not just blowing smoke for their constituents. Analysis of legislators' speaches benefits from the high signal-to-noise ratio of their rhetoric, by which they imply "bird of a feather"-status with their constituency. SCOTUS-member have more complex rhetorical needs than that, and so will probably need hand-tallying.

[jonathon]

Jim,
The "melon-head" statement in your comment is a very good example of language that demonstrates an antiposition, a sort of "false echo" that a context-blind dictionary tool is likely to return. Interestingly, a curious artifact of the LEO model is the presence of antipositions as having distinct ideological signatures. Someone who defines his ideological position in strictly negative terms may appear at first glance to hold to a certain preference, but in fact only holds antipathy for a certain position. For example an individual may appear to some as a conservative or a libertarian but expends most of his breath on how much he hates liberals. This is neither conservative nor libertarian; this is an anti-liberal.
Depending on how he expresses this antipathy, a tool like your dictionary tally might give him a false 'liberal signature'. I thought about this, and decided to look at the language of Justice Rehnquist's dissent directly. There that I found his argument carefully constructed to avoid overt ideological language. This is what brought me to consider the overall rhetorical volume of his dissent in contrast to the rhetorical volume of the majority opinion in Roe.
I had not read any part of Roe until this project. Suffice it to say, the language of Roe seems pretty unusual almost any way you look at it.
I recall Mark saying something about how attorneys then to refer to Planned Parenthod v. Casey instead of this one. If this be so, I can see why.

[Mark Zuniga]

I am interested in how much of the majority opinion was subjected to the LEO test. The first part of the opinion has to do with whether Roe has standing to bring the lawsuit.

[Courts do not offer advisory opinions. There has to be an actual controversy for there to be a lawsuit. One could have argued that there was no live controversy because Roe was no longer pregnant by the time the case went on appeal.]

It's possible the opinion on standing [which no one on the Court seems to disagree with] might skew the LEO test results with regard to abortion generally.

It's also important to note that the debate at the SCOTUS is not whether there ought to be a law banning abortion, but whether a law banning abortion is unconstitutional. While there is a great deal of constitutional analysis that is less than well-principled, one does have to go through a constitutional analysis rather than a policy one.

The majority argument (based to some extent on the sterile environment of the court) looks at the previous opinions that established a right to privacy when it came to the issue of reproduction [e.g. the delightful "penumbras" of the Griswold case] and applied it to abortion prior to the third trimester [or, now, viability]. I think the Court thought it was taking a reasonable, moderate position, and would have been comfortable with a high "o." The justices had to have been stunned by the reaction to this opinion.

Rehnquist, on the other hand, doesn't address the appropriateness of the law, but rather is unwilling to take control away from the representative democracy.

BTW, while the analysis the majority opinion uses in Roe is somewhat unconventional, something like it was recently used in Roper v. Simmons, which held that execution of a minor is cruel and unusual punishment.
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=03-633

That opinion was written by Kennedy, a moderate conservative who generally is not pro-criminal defendant.

I myself would never use this legal reasoning in a court. It's accepted far too rarely.

[jonathon]

He' Mark, glad you came back.
I'm aware of the rule of restraint regarding hypothetical and advisory cases (i.e. "ftlog don't do it"), but I don't recall having excerpted the opinion regarding the legal standing of the case. You may be right about pointing to that subset in the majority opinion as a source of a possible establishmentarian skew. I'll have to chop the opinion into its substantive sections and run the tests again, it would seem.

I did notice that particular feature of Rehnquist's dissent, which actaully squares nicely with an effort not to inject ideological language into his opinion.

What's particularly useful is that this lays bare the difficulties inherent in analyzing legal opinions, and it'll certainly help to refine the application of this test to such sources.

[Jeremy]

Yeah, that's kind of what I was expecting. And I'm not surprised that the concurence looked like that either, it's the main majority which feels the weight of trying to look like they're fitting in with old law/principle.

I don't know if you can run significance tests on these things, but are any of Renqhuist's factors statistically different from each other? That count is fairly low.

Finally, that sort of wide literary discussion isn't too rare in the more unusual cases, but it's not something you'd find in a contract dispute. Especially when creating a principle for the first time judges will put on their "living oracle" hat and search high and wide for a principle to "declare". They especially love delving into the early common law, Cook, Blackstone etc. and also love an obscure latin maxim.

As legal & equitable principles have become more solidified these sorts of musings have become rarer, obviously, so you don't see it too much nowdays. Modern judgements are much more boring and Statute-based.

[jonathon]

You're right Jeremy, Rehnquist's scores are _awfully_ low in this opinion. This is one of those cases where a significance check is probably in order. My knee-jerk sense is that the results of the Rehnquist sample are not statistically significant. I'll see if I can run a x^2 sometime today.

[jonathon]

Jim,
You're probably right about the hand-tally, although judicial decisions can be awfully difficult to wade through. Jeremy just did a series of tests on Australian High Court decisions and the results came up meaningless. Strangely, a test of his own blog came up like he expected. Here's his address:

http://modleft.blogspot.com/