Does the Supreme Court Follow the Economic Returns? A Response to a Macrotheory of the Court

Abstract

This paper responds to an article by Professors Brennan, Epstein, and Staudt showing that Supreme Court justices tend to decide cases in favor of the government more often during economic upswings, decide cases against the government more often during economic downturns, and again favor the government during severe economic crises. Brennan, Epstein, and Staudt conclude that these data prove that the justices deliberately vote to influence economic policy. Our paper questions that logical leap. We argue that although these data strongly suggest that the economic environment influences judicial decisions, there is no proof that justices intentionally decide cases to shape the economy rather than based on the law. We suggest that although empirical studies of judicial decision-making -- such as the study by Brennan, Epstein, and Staudt -- provide valuable insight that doctrinal analysis cannot supply, scholars should avoid overstating what those studies prove. Many such scholars seek not to understand what external factors shape judges but to debunk legal decisionmaking and prove that it is merely a cover for political action. That conclusion has much less support in data and overlooks the real possibility that legal doctrine truly does shape judicial decisions too.