Sunstein said his investigation of the phenomenon began five years ago when his research assistant, while searching through environmental law cases to see how judges appointed by Democratic presidents voted, noticed that Democratic appointees were “more environmentally friendly” if they were with two other Democratic appointees but not than with one or two Republican appointees.
Sunstein added that research into other types of cases yielded similar results.
“There is a dramatic shift once Democratic appointees are sitting with two other Democratic appointees,” said Sunstein, the most-cited law professor in the country. “And there is a dramatic shift once Republican appointees are sitting with two other Republican appointees,” he added.
Sunstein said the research was conducted to serve a broader goal of studying how human beings behave depending on whether they are with like-minded or different-minded people.
“We think what we found is something I’m going to call the ‘collegial concurrence,’ ” he said. “When people find themselves confronted with a unanimous view of other group members, they will often yield.”
Sunstein said the same principle holds true among the general public. He described a study conducted in Colorado in which liberal and conservative people were separated by ideology and asked for their opinions on climate change, same-sex civil unions and affirmative action. The group members then discussed the issues for 15 minutes before recording their opinions a second time.
Among both political groups, deliberation produced extremism.
“After 15 minutes, the degree of internal diversity was dramatically decreased,” Sunstein said of the study’s findings. “Not only did people become more extreme, they became more unified.”
Sunstein also discussed research evaluating the partisan and activist tendencies of members of the U.S. Supreme Court.
To reach his conclusion, Sunstein referred to Chevron v. Natural Resources Defense Council, a 1984 case in which the Supreme Court ruled that if a federal statute is ambiguous, the administrative agency enforcing the policy gets to define the policy. The implication of this ruling is that judges would follow the guidelines of the agency in question.
After reviewing more than 200 Supreme Court cases, Sunstein found that the “award” for neutrality goes to Justice Anthony Kennedy, while Justice Ruth Bader Ginsburg was the least likely to overturn an agency decision. He also found that Justice Clarence Thomas was the most partisan member of the Court and that Justice Antonin Scalia was the most activist, voting to overturn agency decisions more frequently than other justices.
Furthermore, Sunstein found that conservatives on the high court showed a dramatic increase in their validation rates once a Republican occupied the White House and appointed new heads of government agencies.
“The liberal judges are playing politics to be sure, but less so than conservative justices,” he said.
Sunstein cautioned that his evidence shows that politics is entering the judicial branch and said he hopes his work will help reverse this trend.
“One goal of this work is to embarrass judges,” Sunstein admitted. “Judges should be embarrassed. Justice Thomas and Justice Stevens should be embarrassed that when they review agency action, there’s this tremendous political impact.”
Sunstein is currently a professor at the University of Chicago Law School, though Harvard Law School announced last month that he will join its faculty next fall.
After graduating from Harvard College and Harvard Law School, Sunstein clerked for Justice Thurgood Marshall and worked in the Department of Justice before becoming an assistant professor at Chicago in 1981.
Philosophy major Leo Ungar ’08 called Sunstein the “pre-eminent legal scholar of our time” and said it was a privilege to hear him speak.
The Bernstein Lecture, which was first presented in 2005 with funding from Donald Bernstein ’75, brings a significant legal scholar to campus each year.
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