A similar point emerges from one of the most illuminating early constitutional debates, raising the question of whether the Bill of Rights should include a “right to instruct” representatives. That right was defended with the claim that citizens of a particular state ought to have the authority to bind their representatives about how to vote. This defense might seem plausible as a way of improving the political accountability of representatives—and so it seemed to many people at the time. But there is a problem with this view, especially in an era in which political interest was closely aligned with geography. In such an era, it is likely that the citizens of a particular state, influenced by one another’s views, might end up with indefensible positions, very possibly as a result of its own insularity, leading to cascade effects and group polarization. In rejecting the right to instruct, Roger Sherman gave the decisive argument:
The words are calculated to mislead the people, by conveying an idea that they have a right to control the debates of the Legislature. This cannot be admitted to be just, because it would destroy the object of their meeting. I think, when the people have chosen a representative, it is his duty to meet others from the different parts of the Union, and consult, and agree with them on such acts as are for the general benefit of the whole community. If they were to be guided by instructions, there would be no use in deliberation.22
Sherman’s words reflect the founders’ general receptivity to deliberation among people who are quite diverse and who disagree on issues both large and small. Indeed, it was through deliberation among such persons that “such acts as are for the general benefit of the whole community” would emerge.
Most important, the institutions of the U.S. Constitution reflect a fear of conformity, cascade effects, and group polarization. To combat the risks, the document creates a range of checks on ill-considered judgments that emerge from those processes. An obvious example is bicameralism, designed as a safeguard against a situation in which one house—in the framers’ view, most likely the House of Representatives—would be overcome by short-term passions and even group polarization. This was the point made by Hamilton in endorsing a “jarring of parties” within the legislature. James Wilson’s great lectures on law spoke of bicameralism very much in these terms, referring to “instances, in which the people have become the miserable victims of passions, operating on their government without restraint,” and seeing a “single legislature” as prone to “sudden and violent fits of despotism, injustice, and cruelty.”23
To be sure, a cascade can cross the boundaries that separate the Senate from the House; such crossings do occur. But their different compositions and cultures provide a significant safeguard against warrantless cascades. Here the Senate was thought to be especially important. Consider the widely reported story that on his return from France, Thomas Jefferson called George Washington to account at the breakfast table for having agreed to a second chamber. “‘Why,’ asked Washington, ‘did you pour that coffee into your saucer?’ ‘To cool it,’ quoth Jefferson. ‘Even so,’ said Washington, ‘we pour legislation into the senatorial saucer to cool it.’”24
We can understand many aspects of the system of checks and balances in the same general terms. The separation of powers itself reduces the likelihood that cascade effects, or group polarization, will lead the government in terrible directions. Because law cannot be brought to bear against citizens without the concurrence of the legislative and executive branches, enacting and then enforcing the law, there is a strong safeguard against oppression. The president might favor some law and argue vigorously on its behalf, but the legislature might refuse to enact it. In addition, the duty to present legislation to the president for his or her signature protects against cascade effects within the legislative branch; the president has the authority to veto legislation of which he or she disapproves. Even if the legislature enacts an oppressive or foolish law, the president might refuse to enforce it. And even if the legislature enacts it and the president enforces it, courts might intervene, perhaps by declaring it unconstitutional.
Federalism itself was, and remains, an engine of diversity, creating “circuit breakers” in the form of a variety of sovereigns with separate cultures. In the federal system, social influences may produce error in some states, and states can certainly fall into cascades. But the existence of separate systems creates some check on the diffusion of error. One state might do something terrible, but if so, its citizens can flee to other states. The very fact that citizens can “exit” provides a safeguard against oppressive or foolish enactments. The right to leave is a safeguard against tyranny, stupidity, and oppression, often created by conformity, cascades, and polarization.
Judicial power itself was understood in related terms, quite outside of the context of constitutional review. Consider Hamilton’s account:
But it is not with a view to infractions of the Constitution only that the independence of judges may be an essential safeguard against the effects of occasional ill humours in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws. Here also the firmness of the judicial magistry is of vast importance in mitigating the severity and confining the operation of such laws. It not only serves to moderate the immediate mischiefs of those which may have been passed, but it operates as a check upon the legislative body in passing them; who, perceiving that obstacles to the success of an iniquitous intention are to be expected from the scruples of the courts, are in a manner compelled by the very motives of the injustice they mediate, to qualify their attempts.25
Of course the Constitution’s explicit protection of freedom of speech and its implicit protection of freedom of association help to ensure spaces for diversity and dissent. In that way, they counteract some of the risks of mistake that stem from social influences. For present purposes, the analysis of free speech is straightforward, but it is worth emphasizing that freedom of expression allows a nation’s citizens to monitor its leaders and thus to call them to account. It enables the nation’s boys and girls to say that the emperor has no clothes. It authorizes informed people, confident that they are right, to disclose what they know. There is no panacea here against widespread error, but there is a lot of help.
James Madison, the author of the first amendment, invoked ideas of this kind to object to the whole idea of a “Sedition Act,” criminalizing certain forms of criticism of public officials. Madison urged that “the right of electing the members of the Government constitutes . . . the essence of a free and responsible government” and that the “value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for the public trust.”26 If group influences are kept in mind, one implication is that both private and public institutions have a legitimate interest in introducing diversity of opinion into domains that otherwise consist of like-minded people. The reason is simply to diminish the risks of error. If modern technologies allow people to sort themselves into echo chambers, there is a risk that people will be insulated from competing views. Perhaps government should be entitled to respond. Of course any such efforts, on government’s part, will introduce first amendment problems of its own.27
Freedom of association presents some important wrinkles. As we have seen, an understanding of group polarization suggests that associational freedom can produce significant risks, above all because like-minded people might, by the laws of social interactions, go in unjustifiably extreme directions. Society might well become fragmented as a result of “iterated polarization games,” in which groups of like-minded people—initially different, but not terribly different, from one another—drive their members toward increasingly diverse positions. Many nations are now seeing such iterated polarization games (sometimes spurred by social media), and they make governance far more difficult. Small differences in initial views can be magnified, through social interactions, into very large ones. An advantage of this process is th
at it serves to increase society’s total stock of “argument pools,” but across groups, it also increases the likelihood of mutual suspicion, misunderstanding, and even hatred.
At the same time, freedom of association helps to counteract the informational and reputational influences that lead people to fail to disclose information, preferences, and values. By allowing a wide diversity of communities, imposing pressures of quite different kinds, freedom of association increases the likelihood that at some point, important information will be disclosed and eventually spread.
Nothing in this brief account means that the U.S. Constitution, as originally ratified or as now understood, contains the ideal institutions and rights for balancing diversity with other goals, including stability. Some people argue on behalf of proportional representation,28 either of demographic groups or of a large number of parties, and it is possible to understand those arguments as responsive to the goal of guaranteeing a wide range of ideas in government. In some nations, there have been serious attempts to ensure equal representation for women, in large part on the ground that without such representation, important points of view will be absent. There is much to be said about this large topic. But to anchor the discussion, I now turn to two more particular issues, both of considerable contemporary concern: diversity on the federal judiciary and affirmative action in higher education.
Judges
Are judges subject to conformity effects? Are they likely to cascade? Do like-minded judges move to extremes? What is the effect of anticipated and actual dissents? To answer these questions, I am going to go in some detail. My hope is that the discussion will be useful not only to lawyers and judges but also to all those interested in conformity in areas where independent judgments might be expected.
For an introduction to the problem, consider an important early study of judicial behavior on the influential District of Columbia Circuit.29 The study found that a panel of three Republican-appointed judges is far more likely to strike down decisions of federal agencies (such as the Environmental Protection Agency) at the behest of industry than is a panel of two Republican appointees and one Democratic appointee. At first glance, that is odd. After all, two Republican appointees have a majority. Why is a panel with two Republican appointees so much less likely to strike down a federal agency decision than a panel with three Republican appointees?
At the individual level, the same study finds that group influences play a large role. I will get to some details before long, but here is vivid evidence: when sitting with two Republican appointees, a Democratic appointee is more likely to vote to strike down agency action, at the behest of industry, than is a Republican appointee when sitting with two Democratic appointees. For present purposes, it does not much matter whether the judge of a single party is actually persuaded or instead decides that it is simply not worthwhile to dissent publicly. In either case, the vote reflects social influences, in a process that is not entirely different from what is observed in the Asch experiments. What I am sketching goes by the name of “panel effects.” It suggests that a judge’s vote, in ideologically controversial cases, is greatly influenced by the other two judges on the panel.
Several studies over various periods of time find a strong tendency toward more extreme results when a panel consists of three judges from a single political party.30 In brief, a panel of three Republican appointees shows extremely conservative voting patterns, and a panel of three Democratic appointees shows extremely liberal voting patterns. A background finding from an early study is that when industry challenges an environmental regulation, there is an extraordinary difference between the behavior of a Republican-appointed majority and that of a Democratic-appointed majority. In the relevant period, Republican-appointed majorities reversed agencies more than 50 percent of the time; Democratic-appointed majorities did so less than 15 percent of the time.31 There are also significant findings of panel effects. Judges’ votes are greatly affected by whether there is another judge, on that panel, appointed by a president from the same political party. Republican appointees are much more likely to accept an industry challenge if there is at least one Republican-appointed colleague on the panel. Democratic appointees are far less likely to accept such a challenge if there is at least one other Democratic appointee on the panel.32 A single Democratic appointee, accompanied by two Republican appointees, was found to vote in favor of industry challenges more than 40 percent of the time, but when joined by one or more Democratic appointees, the Democratic appointee voted in favor of such challenges less than 30 percent of the time.33
By contrast, a single Republican appointee, sitting with two Democratic appointees, voted in favor of industry challenges less than 20 percent of the time.34 Remarkably, a single Republican appointee, when accompanied by two Democratic appointees, was less likely to accept an industry challenge than a single Democratic appointee, when accompanied by two Republican appointees.
This study was undertaken a number of years ago, but other studies, and more recent ones, find the same basic patterns in many areas of the law.35 It is reasonable to think that in ideologically contested areas, the political affiliation of the president who appointed a judge is a pretty good predictor of how that judge will vote. That is true. But often, a better predictor of how a judge will vote is the political affiliation of the president who appointed the other two judges on the panel. The simplest finding is that a Democratic appointee is fairly likely to vote in a stereotypically conservative direction when accompanied by two Republican appointees—in cases that involve sex discrimination, race discrimination, environmental protection, and much more. When a Democratic appointee sits with one Republican appointee and one Democratic appointee rather than with two Republican appointees, the likelihood of a stereotypically liberal vote increases significantly. When a Democratic appointee sits with two Democratic appointees, the likelihood of a stereotypically liberal vote skyrockets. Republican appointees show exactly the same pattern—in reverse.
This is a real testimony to the strength of social influences. In many areas of the law, a Democratic appointee, sitting with two Republican appointees, votes like a Republican appointee, whereas a Republican appointee, sitting with two Democratic appointees, votes like a Democratic appointee. How a Democratic appointee votes and how a Republican appointee votes are very much a function of whether they are accompanied by one or two people from their own party or none at all. For this reason, there is no single way, independent of group influences, that either a Republican or a Democratic appointee tends to vote—at least in ideologically contested areas of the law.
In a testimonial to group polarization, a panel of three Republican appointees is far more likely than a panel of two Republican appointees and one Democratic appointee to reverse an environmental decision when industry challenges that decision.36 In one period (1995 to 2002), 71 percent of Republican appointees, on all-Republican panels, voted to accept industry challenges.37 By contrast, 45 percent of Republican appointees, on two-to-one Republican panels, voted to accept such challenges—and 37.5 percent of Republican appointees so voted on two-to-one Democratic panels.38 In an earlier period (1986–1994), the corresponding numbers were 80 percent, 48 percent, and 14 percent.39 In a still earlier period (1970–1982), 100 percent of Republican appointees’ votes, on all-Republican panels, were in favor of industry challenges. By contrast, only 45 percent of Republican appointees’ votes, on two-to-one Republican panels, were in favor of industry challenges—and only 26 percent of Republican appointees’ votes, on Democratic-majority panels, were in favor of such challenges.40
Aggregating this data, we can produce a broadly representative and nearly complete account of votes, within the D.C. Circuit, in environmental cases in the period between 1979 and 2002. (More recent court of appeals data, in other areas of the law, continue to show broadly similar patterns.) A simple calculation shows that in all-Republican panels, Republican appointees voted to accept industry challenges 80 percent of the time; tha
t in two-to-one Republican panels, Republican appointees voted to accept such challenges 48 percent of the time; and that in two-to-one Democratic panels, Republican appointees voted to accept industry challenges only 27.5 of the time. And social influences of this kind are hardly limited to Republican appointees; they can be found among Democratic appointees as well. When an environmental group is challenging agency action, a panel of three Democratic appointees is more likely to accept the challenge than a panel of two Democratic appointees and one Republican appointee.41 The likelihood that a Democratic appointee will vote in favor of an environmentalist challenge is highest when three Democratic appointees are on the panel—and lowest when the panel has two Republican appointees.42
A third study is more complicated.43 Under the Supreme Court’s decision in Chevron v. NRDC,44 courts are supposed to uphold agency interpretations of law so long as the interpretations are “reasonable.” But when do courts actually uphold such interpretations? The doctrine allows judges some room to maneuver, so that courts that are inclined to invalidate agency action might be able to find a plausible basis for doing so. An important question is when they will claim to have found that plausible basis. The relevant study strongly suggests that group influences play a role and that the potential for a dissent from a Democratic appointee is a strong deterrent to Republican appointees who are inclined to invalidate agency action.
For background, note that the study finds an exceedingly strong influence, within the court of appeals for the influential D.C. Circuit, of party affiliation on outcomes. If observers were to code cases very crudely, by taking account of whether industry or a public interest group is bringing the challenge, they would find that a majority of Republican appointees reach a conservative judgment 54 percent of the time, whereas a majority of Democratic appointees reach such a judgment merely 32 percent of the time.45
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