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Faculty Profile: Lee Epstein Looks at Supreme Court from Political Perspective

November 1, 2006 | by Pat Vaughan Tremmel

Ask Lee Epstein, a law school professor who is a leading Supreme Court expert, if there is a major theme running through everything she does, and you get a one-word answer: “Politics.”

Politics, internal and external, informs the high court's behavior, whether the justices are responding to a congressional vote or to each other's views, she explains.

“I specialize in the Supreme Court from a political perspective,” says Epstein who recently joined the law school faculty as the Beatrice Kuhn Professor of Law. “I look at the politics of appointment, the politics of decision making, the relation between the Court and Congress and the politics surrounding the relationship between the Court and the elected branches.”

Her work on judicial politics has been supported by 10 grants from the National Science Foundation.

Holder of bachelor's, master's and doctoral degrees from Emory University, Epstein is the author, co-author or editor of 14 books and more than 70 articles and essays. Her most recent published work “The Changing Dynamics of Senate Voting on Supreme Court Nominees” appeared in the Journal of Politics (May 2006). She is in the middle of writing a book on how the high court decides which cases it will hear, for which she is making use of the papers of Justice Harry Blackmun.

What is your approach to the activities of the court's current members?

I study who is agreeing with whom, whether they're liberal, whether they're conservative. Right now it's pretty clear that Anthony Kennedy is in the center of the court. Kennedy can go either way on lots of issues - and does. Since Sandra Day O'Connor has left, the court has shifted to the right a bit, because Kennedy is more conservative than O'Connor. It's hard now to tell the differences between Samuel Alito and John Roberts. But there are differences in the way they interpret the Constitution and the law, in their approaches. I just got data, which I haven't analyzed yet, but it might show that Alito is more to the right than Roberts. Many people make lots of claims about the justices' politics, etc., and what I do is take those arguments and test them. People say, for example, that Alito and Roberts aren't going to change, that they're always going to be conservative. Well, that isn't necessarily true. Let's look at some other justices in the past and see if that holds.

How have Supreme Court justices changed after getting on the court?

Right now we're doing a study of the changing ideology of justices over time. When you look back over 10 years, you see the extent to which justices change in their beliefs and values. David Souter, of course, is the one that everyone points to. People say the minute Souter came on the Court he became a lot more liberal, and the consensus is that Harry Blackmun started off very conservative and then became very liberal. Most commentators believe these two are the exceptions. But it's just not true. Most justices, in fact, do change. Some change less dramatically than others, but they do change over time.

Some people believe that once the justices get life tenure, that's it. But I think they still have to be somewhat responsive to Congress, to the president. There are exceptions, but most justices have some notion that to retain their legitimacy they have to take into account the culture and so on.

What is the subject of your new book?

The book is on cert[iorari]. Most petitions come to the Supreme Court on cert. So the court has to decide whether to grant or deny the petition. If you file a petition to the court, how can you increase the odds of the court granting it? There are a lot of good theories out there, but not a lot of good data on this. With a grant from NSF, we spent last summer photographing Harry Blackmun's papers and analyzing information they contain”

How does the Iraq war, or war in general, affect what the court does?

We just finished a big study that suggests that in everyday civil rights, civil liberties matters, the court will be more conservative in times of war, in search-and-seizure cases, for example, going back to at least World War II. The court is very much concerned with what Congress is doing. If Congress is approving, then the Court will be more likely to go along. Just as a general matter, Congress' approval seems to matter to the Court.

Topics: People