Professor Carolyn Shapiro has posted a new article to SSRN titled Claiming Neutrality and Confessing Subjectivity in Supreme Court Confirmation Hearings, 88 Chicago-Kent Law Review 455 (2013). The article was originally presented at Chicago-Kent’s “Symposium on the Supreme Court and the American Public,” on a panel in which speakers examined the ideologies that influence the Supreme Court’s decision-making and the public’s perceptions of those decisions. The panel featured a variety of first-hand empirical data drawn from law-themed social research. Read the abstract of Professor Shapiro’s article below.
Supreme Court confirmation hearings provide a rare opportunity for the American people to hear what (would-be) justices think about the nature of judging and the role of the Supreme Court. In recent years, nominees have been quick to talk about judging in terms of neutrality and objectivity, most famously with Chief Justice Roberts’ invocation of the “neutral umpire,” and they have emphasized their reliance on legal texts and sources as if those sources can provide answers in difficult cases. Many of the cases heard by the Supreme Court, however, do not have objectively correct answers that can be deduced from the legal materials. Instead the justices must bring judgment to bear, and that judgment inevitably incorporates subjectivity and reference to values and principles not explicit in the legal sources.
This Article considers the extent to which nominees admit to such subjectivity and the extent to which they claim neutrality or objectivity, looking at all confirmation hearings since 1955. Through coding the nominees’ testimony, the Article identifies some of the circumstances under which these claims and admissions are most likely to be made. Among other findings, the Article reports that Democratic and Republican nominees are equally likely to claim neutrality in colloquy with any particular senator. On the other hand, Democratic nominees are about twice as likely as Republican nominees to admit to a role for subjectivity. Drawing on the insights of cultural cognition scholars, the Article then considers the implications of such findings and raises potential concerns for public perceptions of the Court, especially in light of our current highly polarized political culture.
Download the article from SSRN here.
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