Judge Easterbrook is not a fan of the attitudinal model. He looks to “selection pressure” as the determinant. Check out his commencement address at Swarthmore.
Suppose the Justices who are usually called “conservative” were to resign tomorrow and be replaced by President Obama. The reconstituted Court still would find lots of cases to be hard. It would grant review of those hard cases and decide many of them five to four. Cases that the Roberts Court finds hard and decides 5-4, this hypothetical Court would find easy and decide 9-0; lawyers would stop presenting those disputes. But they would bring more and more of the disputes that divide the new Court.
To those who specialize in economic analysis of law, the effect is known as selection pressure in litigation. The choices made by lawyers, and the judges themselves, ensure substantial disagreement even when there is no ideological difference among the judges – which also makes it hard to blame politics for the disagreement we actually observe. The rate of disagreement among the Justices has been stable for more than 70 years.1 The Court had the same rate of dissent in 1945 as in 2005, though in 1945 eight of the nine Justices had been appointed by a single President. Selection pressure is responsible for this stability. . . .
Judges of my court agree in 97 percent of all appeals.2 The Supreme Court decides about 40 percent of its cases unanimously – and these are the hardest cases in the legal system, which usually reach the Court because judges of other courts were at odds. It isn’t just technical disputes that end unanimously. Last January the Court decided Perry v. Perez,3 a reapportionment case that concerned how many districts in Texas would be drawn to favor Hispanic candidates. All nine Justices rejected the contentions of both the Obama Administration (representing the political Left’s perspective) and the State of Texas (espousing the Right’s perspective). Both state and national politicians, and editorial writers, had strongly disagreed about what should be done in Perry; the Justices resolved the case unanimously. . . .
Something other than ideology produces this remarkable degree of consensus in the legal system’s toughest cases. Judges reach agreement even when selection pressure says they shouldn’t be able to. You therefore should think better of the judicial system than the editorial pages do. In the United States, the Rule of Law really does differ from a Rule of Judges. Neutrality is a comfort to all who must stand before a court, and to all of us who favor equal justice under law. You should keep this in mind as you encounter the legal system, whether as a participant or as a reader. And if some day I meet some of you as advocates, students, or colleagues, I look forward to the opportunity.
H/T Andrew Grossman