Grant Christensen has posted his wonderful paper, “Judging Indian Law: What Factors Influence Individual Justice’s Votes on Indian Law in the Modern Era,” forthcoming in the University of Toledo Law Review, on SSRN.

Here is the abstract:

Scholars of the Supreme Court often use a justice’s political ideology to predict their ultimate vote on Constitutional questions. While this approach may serve scholars well when questions involve hot button civil liberties issues that are the focus of confirmation hearings, ideology is in actuality a poor predictor of judicial behavior in other areas of law. This paper looks at one of the more complex – Federal Indian Law – and uses both descriptive statistics and more advanced quantitative analysis to go beyond the pure ideology and explain why individual Justices vote the way they do. Using the Fisher Exact Test, and a comprehensive new database of Indian Law decisions, I demonstrate that contrary to common expectations, factors like the Solicitor General’s participation are not significant in swaying an individual Justice’s vote, while factors like being the appellant party and certified questions of conflicting jurisdiction do statistically significantly alter an individual Justice’s vote on the merits. These factors provide better insight into the ultimate outcome – at a Justice level – of Indian law decisions before the Court, and can be used by parties to predict future Supreme Court outcomes on Indian law questions.

I had a chance to read an earlier version of this paper. Prof. Christensen expands upon a magical science — predicting Supreme Court Justice voting patterns — that has typically been dominated by discussions about ideology. He rightfully tries to move away from that limited view of judicial voting patterns. And as any observer of Indian law knows, ideology breaks down significantly in Indian law cases. Thoughtful, rigorous work.