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Reply to Fisher's Mathematical Analysis of Supreme Court Decisions

Published online by Cambridge University Press:  02 September 2013

Fred Kort
Fred Kort
Affiliation:
University of Connecticut
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Extract

We have had many reminders of the limits and risks of statistical predictions about human behavior. When I ventured last year to offer a formula describing Supreme Court action in the state “right to counsel” cases over a period of years, I was mainly concerned to show that, contrary to accepted judicial doctrine about decisions in unique cases, consistencies in the Court's collective judgments could be demonstrated in this area, and stated in quantitative terms. I did not suppose that the formula was more than a method of approximation. I did not offer it as the perfect formula, or the only one; and in particular I did not claim that it was capable of indefinite extension to other areas of constitutional law. An exploratory effort begins with what is available. But I did take into account, so far as the available data permitted, not only the Court's decisions, but also the votes of individual justices on each of the pivotal factors on which their positions could be identified or imputed. I did not claim more for the product than that, so far, it works. With this general statement, let me turn to Fisher's article.

Type
Research Article
Information
American Political Science Review , Volume 52 , Issue 2 , June 1958 , pp. 339 - 348
Copyright
Copyright © American Political Science Association 1958

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References

1 Above, pp. 322–3. Emphasis supplied.

2 Kort, Fred, “Predicting Supreme Court Decisions Mathematically: A Quantitative Analysis of the ‘Right to Counsel’ Cases,” this Review, Vol. 51 (March, 1957), p. 1Google Scholar.

3 Ibid., p. 12. Emphasis supplied.

4 324 U. S. 786, at 789.

5 Above, p. 334, note 24.

6 Ibid., p. 330–1.

7 See 28 U. S. Code, Secs. 1254, 1257

8 See Revised Rules of the Supreme Court of the United States, Rule 19. See also Brown v. Allen, 344 U. S. 443, 491–492 (1953).

9 See the quoted part of the opinion of this case in Kort, op. cit., pp. 2–3.

10 Ibid., p. 6.

11 Above, p. 334, note 22.

12 355 U. S. 155 (1957).

13 327 U. S. 82, at 86. Emphasis supplied.

14 Ibid., at 85.

15 Ibid., p. 84. Emphasis supplied.

16 See Trosper, Emory T. Jr.,, “A Scalogram Analysis of the Right to Counsel Decisions of the Supreme Court, 1940–1957,” to be published in Quantitative Analysis of Judicial Behavior, edited by Schubert, Glendon A. Jr., (Michigan State University, 1958)Google Scholar. Refer to Tables I, II, IV and V in relation to the discussion of the coefficient of reproducibility.

17 Above, p. 337, note 28.

18 See Bergmann, Gustav, “An Empiricist's System of the Sciences,” The Scientific Monthly, Vol. 49 (1944), p. 144Google Scholar. The example that follows is taken from this source. See also his “Outline of an Empiricist Philosophy of Physics,” American Journal of Physics, Vol. 11 (1943)Google Scholar, reprinted in Feigl, and Brodeck, , ed., Readings in the Philosophy of Science (New York, Appleton-Century-Crofts, Inc., 1953), pp. 262–287Google Scholar. I am indebted to Edward H. Madden, Department of Philosophy, University of Connecticut, for these references and for comments on them.

19 By Glendon Schubert, op. cit., above, note 16.

20 A system of simultaneous equations (not “discriminant analysis”) is being currently applied by Eliot S. Wolk and myself to all (at present, thirty) “right to counsel” cases, not for the purpose of prediction, but for the purpose of determining whether or not this method could be used for a comprehensive analysis of all Supreme Court cases involving the “fair trial” rule. Mr. and Mrs. Jeremy Stone of Washington, D. C. also are in the process of approaching the problem of the “right to counsel” cases in terms of simultaneous equations. Moreover, under the direction of Professor Glendon A. Schubert at Michigan State University, five papers involving mathematical analysis of Supreme Court decisions have been prepared: James E. Wresinski, “Voting Behavior in Non-Unanimous Decisions of the Warren Court, 1953–1957”; William A. Burgett, “Discretionary Review and Summary Decisions of the Warren Court, 1953–1957”; Peter H. Sonnenfeld, “Participation of Amici Curiae by Filing Briefs and Presenting Oral Argument in Decisions of the Supreme Court, 1949–1957”; Emory T. Trosper, Jr., “A Scalogram Analysis of the Right to Counsel Decisions of the Supreme Court, 1940–1957”; James Peter Meloney, “An Exploration of the Application of the Theory of Games to the Supreme Court Decision-Making Process.” In this connection, Trosper's paper should be noted in particular. Mr. Reed C. Lawlor of Los Angeles has suggested Boolean algebra as a possible approach to the problem.

21 See Kort, op. cit., p. 2.

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