Shapiro — Volume 63, Issue 2

Empirical legal scholarship claiming to provide objective analysis often masks ideologically motivated reasoning by selective use of data and statistics. Shapiro critiques a study examining Supreme Court justices' First Amendment voting patterns, arguing that empirical work frequently departs from neutrality through motivated reasoning rather than conscious bias. The article examines whether hard cases with indeterminate constitutional language inevitably require justices to weigh competing values, suggesting this reality complicates claims of judicial neutrality. While liberal justices may support First Amendment protections more frequently, and conservative justices may reject them more often, this pattern reflects underlying views about the proper balance of interests rather than systematic in-group bias favoring ideological allies. The challenge for empirical scholarship is distinguishing between unconscious ideological influence on case outcomes and conscious empathy-based bias. Shapiro argues that many scholars conflate these phenomena or use data selectively to support predetermined conclusions about justice behavior. First Amendment jurisprudence exemplifies how competing values—free expression versus regulation—interact with justices' views on appropriate policy, making purely neutral analysis impossible. The article calls for greater candor about how empirical methodology itself embeds choices reflecting author ideology and for more nuanced analysis of the roles values and ideology play in judicial decision-making.

Topics: Constitutional Law · First Amendment

Keywords: empirical legal scholarship · motivated reasoning · Supreme Court · First Amendment · judicial bias · In-Group Bias · ideological voting · empirical methodology