Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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Published in 2009. In the Duke Law Journal, 58:1191-1230 (Symposium)

Thomas Brennan
Lee Epstein
Nancy Staudt

We investigate the effect of economic conditions on the voting behavior of U.S. Supreme Court Justices.  We theorize that Justices are akin to voters in political elections; specifically, we posit that the Justice will view short-term and relatively minor economic downturns—recessions—as attributable to the failures of elected officials, but will consider  long-term and extreme economic contractions—depressions—as the result of exogenous shocks largely beyond the control of the government.  Accordingly, we predict two patterns of behavior in economic-related cases that come before the Court:  (1) in typical   times, when the economy cycles through both recessionary and prosperous periods, the Justices will punish the elected branches of government when the economy contracts by voting less frequently for the government; and (2) in atypical times, when the economy moves into a period of deep depression, the Justices will work with the other branches of government  by voting more frequently for the government.  We test our hypotheses through statistical analysis of taxation opinions rendered by the Supreme Court during the period from 1913 to 1929 (a relatively normal period) and the period from 1930 to 1940 (the Great Depression).  We find broad support for our hypothesis in the data we analyze, and we verify that our results are robust to a change in the measure of the economic condition as well as to a change in the specification of the regression model.  We conclude that U.S. Supreme Court Justices exhibit voting patterns similar to voters in political elections when it comes to the economy.

Click here for the article (.pdf)
Click here for the data (zip file containing Stata datasets) (posted on 3.15.09)