Bloomberg Survey of Law Professors Hides Self-Selection Bias

A story published Friday by Bloomberg News surveyed constitutional law experts around the country and found that the overwhelming majority of respondents believe the Supreme Court has no proper grounds on which to strike down the mandate portion of the Affordable Care Act. Not mentioned in the Bloomberg story is the fact that nearly half of the respondents have made campaign donations to President Obama.

The fate of the President's signature achievement, the Affordable Care Act, will be announced this week by the Supreme Court. That decision is widely seen as playing a role in the President's reelection chances this fall. In advance of the ruling, Bloomberg News emailed surveys to 131 professors at 12 law schools. An overwhelming majority of respondents, 19 of 21, believed the individual mandate should be upheld based on legal precedent, but only 8 of 21 believed that would happen. The obvious conclusion? Politics was affecting the Supreme Court:

There was broad agreement that the ruling, barely four months before November’s presidential election, has the potential to hurt the Supreme Court’s reputation as an impartial institution.

Eighteen of the 21 professors said the court’s credibility will be damaged if the insurance requirement -- which passed Congress without a single Republican vote -- is ruled unconstitutional by a 5-4 majority of justices appointed by Republican presidents.

The Bloomberg News piece has been widely circulated, especially on the left, where blogs have pointed to it as proof that the Affordable Care Act would survive if not for the influence of politics. Sites like Daily Kos and Balloon Juice were joined by James Fallows of The Atlantic who cited the Bloomberg piece to support his contention that the U.S. was undergoing a "coup."

But a closer look at the Bloomberg survey reveals a serious problem. Of the 131 law professors contacted, only 21 chose to respond, about 16 percent. Digging into the public donations records for the individuals who responded reveals a fairly clear case of self-selection bias.

Name
 School  Donation to Obama
 Bruce Ackerman
 Yale $1250 in 2008
Also DCCC and DSCC in 2010
 Guy-Uriel Charles
 Duke  
 Jesse Choper
 Berkeley
 Norman Dorsen
 NYU $4850 this election cycle
 Charles Fried
 Harvard  
 Jamal Greene
 Columbia  
 Dennis Hutchinson
 U of Chicago
$250 in 2008
 Michael Klarman
 Harvard $1500 this election cycle
 Andrew Koppelman
 Northwestern  
 Gillian Metzger
 Columbia $300 this election cycle
 Anne Joseph O'Connell
 Berkeley  
 John D. Ohlendorf
 Northwestern  
 Richard Parker
 Harvard  
 David Richards
 NYU $4,875 this election cycle
Also DNC in 2010 and 2011
 Kermit Roosevelt
 U of Penn
$500 this election cycle
 Adam Samaha
 U of Chicago
 
 Neil Siegel
 Duke $1000 in 2008
 Fred Smith
 Berkeley  
 Laurence Tribe
 Harvard $3500 this election cycle
 G. Edward White
 U of Virginia
 
 Christina B. Whitman
 U of Michigan

 

Nine of the 21 respondents, 43 percent, have donated to the Obama campaign. But even those who haven't donated to a particular party have identifiable political views. For instance, Professor Anne Joseph O'Connell has offered advice to the Obama administration in the form of this Center for American Progress report. For those not familiar with it, CAP is a progressive think tank known of its close ties to the White House and for funding the progressive blog Think Progress. Professor Richard Parker is one of the founders of Mother Jones magazine and describes himself as a progressive.

It should go without saying that we can't assume a particular partisan identification affects an individual's legal judgment in a given case. Then again, this is precisely the assumption these professors seem to be making with regard to the Supreme Court's conservative Justices and the ACA. A look at the chart above may suggest a reason for their jaundiced views. Bloomberg News should have mentioned these connections to better inform readers that the opinions were not those of disinterested observers. Ironically, these professors may have made the case that interpretation of the law is too often colored by politics, just not in the way they intended.


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