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Comment by JustARandomGuy | Hacker News Reader

> Former clerks were 16 percentage points more likely to attract the votes of the justice for whom they had worked

One question I immediately have is that are they controlling for the side that the clerk argues on behalf of? I would expect clerks for "liberal" justices would probably argue on behalf of the liberal side in a SCOTUS case, and likewise for conservative leaning clerks and justices.

In other words: could a liberal side of an argument (say: pro-gay-marriage) hire a former conservative-justice clerk and be more likely to have a conservative justice rule for the liberal argument?

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Judicial methodology counts for something - see Gorsuch's recent ruling on sex discrimination. My understanding is clerks are generally so used to thinking like the justice they clerked for that they could tease out arguments which would be persuasive. Gorsuch may be socially conservative but he's obviously very susceptible to "originalist" arguments - if you want his vote, you need to speak to the text of the statute.

Not sure why this comment was marked dead, so I vouched. I'm assuming an overly sensitive filter nuking comments because your account is new and the comment uses words predictive of politics?

My sense, personally, is that mostly that people have the causality on legal formalism reversed: originalism is not a theory that leads to conclusions, it's a rationalization used to support conclusions already held.

But at the very least what you're saying is something worth thinking about. Given that Oyez makes every supreme court oral argument public and the filings are clearly public, it seems like there probably would be a case for any number of text learning methods to try to identify formalist style in legal arguments for an analysis like this.

>"My sense, personally, is that mostly that people have the causality on legal formalism reversed: originalism is not a theory that leads to conclusions, it's a rationalization used to support conclusions already held."

I never understood this logic, because it's inconsistent with how judges & justices like Scalia often found in favor of litigants he despised, because they had a strong originalist argument. Breyer on the other hand, with his 57-factor balancing tests, always finds a way to find in favor of his favored side.

No thanks, I'd rather the plain words of a governing document be interpreted more like a living organism that evolves with the times. That way I can get exactly what I want right now without having to convince anyone else beyond 5 old people to vote for it.

I assume this is sarcasm?

it's inconsistent with how judges & justices like Scalia often found in favor of litigants he despised

That doesn't describe Scalia at all. Scalia applied originalism when it suited him, and abandoned it when it interfered with his ideological goals.

Scalia like most SCOTUS justices, cared little for the actual litigants, since they were largely irrelevant to the matters at hand other than as vessels for bringing the matter to court. Due to the length of time it takes cases to get to the Supreme Court, many of the named litigants aren't even the original parties, the original parties having long since died or left office.

The justices definitely think about the litigants, and similarly situated parties. Sotomayor and Ginsburg regularly made litigant-related emotional appeals (usually near the end of oral argument), notably in the healthcare and DAPA/DACA cases. I do not recall Scalia making emotional appeals, but he was sympathetic to the administrative agencies (in a manner which I see as inconsistent with most of his other jurisprudence, and which he later drew back from).

Yes, they think about the litigants during oral arguments, and in dicta (side remarks in an opinion) where it doesn't matter.

The facts of the litigants don't matter to the legal reasoning, because SCOTUS decides matters of law, not fact.

Well, the Supreme Court is actually the court of first instance for some types of cases, and decides both matters for those cases. It can also decide matters of fact in some cases, for various reasons.

Those situations aside, I think Sotomayor and Ginsburg's emotional appeals in oral argument are representative of how they are actually deciding those cases (i.e. for reasons related to the specifics of litigants), and that the written opinions may simply be a legal veneer over their true motives.

Well, the Supreme Court is actually the court of first instance for some types of cases, and decides both matters for those cases

It's called "original jurisdiction" and for SCOTUS their scope of original jurisdiction is limited to cases between the states or involving ambassadors or other "public ministers." As a portion of SCOTUS' load, such cases are such a small fraction that it can be decades between such cases.

SCOTUS otherwise does not decide matters of fact because it's not within their jurisdiction to do so as an appellate court. They can overturn lower-court rulings on the facts, but in doing so must remand to the lower courts for new rulings on the facts. Additionally, while they can take facts into account in their rulings, such facts must be part of the record established in the lower courts (i.e., the trial courts), unless it is a case of original jurisdiction for SCOTUS (meaning state vs state cases).

I think this has to do with the words 'theory', 'conclusion' and 'rationalization'.

In natural sciences, a theory is a set of hypotheses, along with their logical consequences with the aid of auxiliary theories. This is not what judges to. They have a set of meta-principles(originalism, textualism, precedent, etc) and heuristics (for reasonableness, fairness, etc). They use them to come at a decision they favor. The difference between a Breyer and a Scalia is the way they assign weights to these heuristics and meta-principles to favor their decisions.

I think you make a good point about justices existing along a spectrum of adherence to methodologies, but I think some judges and justices also choose to avoid the main issue when the 'heuristics' are at odds with their principles. The most obvious example of a serial-parrier is the current chief.

Richard Posner is very upfront: he first decides, then finds rationale for that decision. Of course, the judge's role is to pick one decision among a range of possible decisions. As long as there is a section of public who supports that decision, all rationale judges provide make it appear non-arbitrary. This kind of explains why the same court ruled in opposing ways wrt segregation, etc.

I think Breyer is pretty honest at least that his goal is equity rather than some abstract philosophy. Unfortunately this does tend to lead to balancing tests rather than bright line rules.

Conversely, it could be said Scalia twisted the idea of "originalist" to suit his political ends. Heller in particular is a very consequential ruling that basically invented a new right under the second amendment from whole cloth. When originalists complain about "activist judges" it can seem intellectually dishonest.

There's also a good question about how originalists can even support Marbury v Madison and the concept of judicial supremacy in the first place, since it doesn't originate in any law. Right now they support it because they have durable power in the courts.

Heller is an interesting one, though I disagree with your statement that it was invented from whole cloth. I see Heller as a good example of constitutional consistency. Over time, the courts have developed a range of standards, each of which applies to one or two amendments. I hope Heller is the first step in a rationalization of constitutional law, as there is no reason for certain rights to be more or less protected than others.

As to Marbury v. Madison, even (some) originalists believe in stare decisis, though it is a controversial topic.

It's actually textualism not originalism. Originalism considers the original lawmakers' intent whereas textualism only considers the current meaning of the words of the statute and ignores intent.

In other words, originalism considers unintended consequences to be outside the scope of the law, whereas textualism considers them to be within scope.

Textualist in Gorsuch’s case, his position in the case you cited was textualist, not originalist. Clarence Thomas would be a better example of an originalist on the court.

I think you’re confusing textualism for originalism. Textualism means the wording of the statute is paramount. Originalism means you supplement the text with a historical analysis of the people who wrote it and try to interpret the words in the way the original writer intended.

Yes, the article does adjust for most of the confounders you'd expect.

https://journals.sagepub.com/doi/pdf/10.1177/106591292094813...

The second paper they link with “similar findings” appears to just say that experienced attorneys win more haha.

First paper does seem to substantiate article.

Supreme Court cases are usually over arcane technicalities of law. Knowing how to craft an argument towards the interest of one of the judges matters. Not only for arguing the case, but for getting the case on the docket.

Conservative vs liberal is less important IMO.

I know several former clerks. Their own political leanings frequently do not align with the justice the clerked for, though I assume they tend to know what types of arguments will be more likely to sway that particular justice.

> One question I immediately have is that are they controlling for the side that the clerk argues on behalf of?

This should happen automatically without the authors needing to handle anything specially, as long as you believe the court is arranged into sides that vote in blocs.

(And if you don't believe that, the question doesn't appear to make a lot of sense?)

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