Election year judging

I'm shocked, shocked to learn that Justice Roberts's decisions would be determined by election year considerations.

Indeed, much of the commentary on the court’s performance during the last term was harsh, and it came not only from liberals. Judge Richard A. Posner, the conservative icon who sits on the federal appeals court in Chicago, offers some pointed and unusually personal criticism of Chief Justice Roberts in his new book, “How Judges Think,” published this year by Harvard University Press. The chief justice’s self-description during his confirmation hearing as a simple baseball umpire might have been a “tactical error” for one who evidently “aspires to remake significant areas of constitutional law,” Judge Posner writes, adding:

“The tension between what he said at his confirmation hearing and what he is doing as a justice is a blow to Roberts’s reputation for candor and a further debasement of the already debased currency of the testimony of nominees at judicial confirmation hearings.”

Such words from Richard Posner would cause any member of the court, let alone a relatively new and young chief justice who undoubtedly admires him, to swallow hard.

The court’s modulated tone may also stem from the fact that this is an election year. Lee Epstein, a political scientist and law professor at Northwestern University, said that political scientists had long observed an “election effect” on the court that results in more consensus and fewer 5-to-4 decisions during an election year than in the preceding term.

“Of course, lots of things could explain this, but the pattern is pretty interesting,” Ms. Epstein said in an e-mail exchange, adding that the justices “probably don’t want to provoke controversy, or become an issue, during the election — especially an election with a highly uncertain outcome.”

Activist judges, indeed. And isn't it interesting, if this is true, that the conservative judges would feel the need to move sharply leftward, albeit not too far, so as to avoid further harming the chances of the party what brung 'em in this year's election?