The effective end of the Supreme Court’s term on Friday touched off what has become an annual tradition: hot takes summarizing the justices’ work over the preceding nine months based upon data aggregated from the justices’ decisions. These accounts typically focus on surprising-sounding results (50% of the decisions were unanimous!) in service of pushing back against the most obvious summary of the current court: that it is sharply divided between the six justices appointed by Republican presidents and the three justices appointed by Democrats. You can spin the data however you want, but the reality is actually simple. The conservative majority is pushing American law decisively to the right.
Statisticians call this phenomenon the “tyranny of averages” — the fact that averaging a data set tells us nothing about the size, distribution or skew of the data.
Statisticians call this phenomenon the “tyranny of averages” — the fact that averaging a data set tells us nothing about the size, distribution or skew of the data. But these kinds of “judge the Supreme Court by its data” assessments are even worse than just ordinary statistical errors.
First, they fail to account for the Supreme Court’s own role in choosing the cases it decides — so that the data isn’t random to begin with. Second, they ignore all of the Supreme Court’s significant rulings in other cases — those that don’t receive full briefings and arguments. Finally, even within the carefully cultivated subset of cases on which these claims generally focus, these commentaries both miscount the divisions and treat as equal disputes that bear no resemblance to each other. It’s not that this data is completely irrelevant, but anyone relying upon it should take it with a very substantial grain of salt.
Let’s start with the court’s docket. With one tiny exception (which accounted for exactly one case during the justices’ current term), the court chooses each and every one of its cases (and, even within those cases, which specific issues it wants to decide). This docket control, which is entirely a modern phenomenon, means the justices are pre-selecting the cases they decide — including technical disputes on which they may be likely to agree (or, at least, not disagree along conventional ideological lines). Thus, from the get-go, the entire data set on which too many commentators rely is biased toward the justices’ own behavior.
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