Con­ser­v­a­tives are gen­er­al­ly under­stood to have won the courts. The U.S. Supreme Court has a far-right con­ser­v­a­tive major­i­ty, which is poised to fur­ther weak­en fed­er­al reg­u­la­to­ry agen­cies, civ­il rights and unions. The Court has moved so far to the right that Chief Jus­tice John Roberts — who has presided over the most pro-cor­po­rate Court in recent his­to­ry—may now be the Court’s new ​“swing vote.” Sim­i­lar­ly, Repub­li­can appointees now occu­py the major­i­ty of seats on the fed­er­al courts of appeal, and Pres­i­dent Don­ald Trump has shown no signs of slow­ing his pace of judi­cial appointments.

After attending the Manne Institute, judges were also found to use the language of economics more often in their decisions.

But the raw num­bers of con­ser­v­a­tive ver­sus lib­er­al judges only tell part of the sto­ry. The more dif­fi­cult dimen­sion to quan­ti­fy is how the mas­sive edu­ca­tion­al appa­ra­tus that con­ser­v­a­tives have fund­ed and run for decades — from the Fed­er­al­ist Soci­ety net­work to judi­cial law clerk and judge train­ing pro­grams—has pushed the judi­cia­ry in ever more anti-reg­u­la­to­ry, anti-work­er and pro-incar­cer­a­tion directions.

Now, a major work­ing paper by three econ­o­mists — Elliot Ash, Daniel Chen and Suresh Naidu — shows the huge return on just a small part of this edu­ca­tion­al invest­ment. It shows that a short pri­vate train­ing pro­gram for judges has direct­ly led to judges issu­ing longer prison sen­tences and show a greater propen­si­ty to over­turn reg­u­la­tions pro­tect­ing work­ers and the environment.

Their paper looks at the effect of the Manne Eco­nom­ics Insti­tute for fed­er­al judges, a two-to-three-week law and eco­nom­ics train­ing course for fed­er­al judges run out of George Mason Uni­ver­si­ty. The Eco­nom­ics Insti­tute seeks to give judges a ​“basic knowl­edge of eco­nom­ics prin­ci­ples … there­by improv­ing the devel­op­ment of the law and ben­e­fit­ting America’s free enter­prise system.”

In real­i­ty, the Eco­nom­ics Insti­tute, found­ed by Hen­ry Manne in 1976, pro­vides train­ing in the lib­er­tar­i­an- and con­ser­v­a­tive-lean­ing field of law and eco­nom­ics. Accord­ing to Steven Teles’ book, The Rise of the Con­ser­v­a­tive Legal Move­ment, Manne was the ​“first orga­ni­za­tion­al entre­pre­neur” of the law and eco­nom­ics move­ment: He found insti­tu­tion­al homes for his Insti­tute, sold the idea to cor­po­rate fun­ders and made it respectable for judges to attend. Manne helped ensure that con­ser­v­a­tive ​“law and eco­nom­ics” thought was not mere­ly a mat­ter of aca­d­e­m­ic con­cern, but that it had an imme­di­ate real world impact by encour­ag­ing judges to incor­po­rate it into their legal reasoning.

This field devel­oped into the area of law, which came of age in the 1970s and 1980s at the Uni­ver­si­ty of Chica­go, with the pro­lif­ic pro­fes­sor and fed­er­al appel­late court Judge Richard Pos­ner pro­vid­ing much of the schol­ar­ly heft. It focus­es on a cost-ben­e­fit util­i­tar­i­an analy­sis, pro­mot­ing the ideas that some­one can breach a con­tract when it is eco­nom­i­cal­ly effi­cient to do so, that labor and envi­ron­men­tal reg­u­la­tions and pro­tec­tions are harm­ful and expro­pria­tive, and that greater prison sen­tences reduce crime. Though it start­ed as a fringe school of thought, law and eco­nom­ics pro­po­nents now hold a promi­nent place in con­ser­vatism and legal practice.

By 1990, the Eco­nom­ics Insti­tute had pro­vid­ed train­ing to 40 per­cent of fed­er­al judges — Democ­rats and Repub­li­cans — includ­ing Ruth Bad­er Gins­burg and Clarence Thomas. Though Manne claimed that the effect of the Insti­tute is dif­fuse and has no direct impact on how judges decide cas­es, Ash, Chen and Naidu have shown that the impact is, in fact, huge. In order to prove this, they cre­at­ed a dataset of over 1 mil­lion judge votes across 380,000 fed­er­al appeals cas­es between 1891 and 2013, as well as 1 mil­lion crim­i­nal sen­tenc­ing deci­sions in Dis­trict Court between 1992 and 2011. They found that the lan­guage of the deci­sions, as well as the results in the deci­sions, changed sig­nif­i­cant­ly after a judge attend­ed the two-to-three-week train­ing at the Eco­nom­ics Institute.

With respect to crim­i­nal jus­tice, law and eco­nom­ics pro­po­nents push the idea that stereo­typ­ing is eco­nom­i­cal­ly effi­cient, and sim­ple deter­rence is the best way to reduce crime. As a result, the paper found that ​“Manne atten­dance is asso­ci­at­ed with harsh­er prison sen­tences imposed.” In prac­ti­cal terms, this means that, after attend­ing the insti­tute, judges increased sen­tence lengths by an aver­age of 7 percent.

The authors also looked at how judges ruled on cas­es involv­ing the Nation­al Labor Rela­tions Board and the Envi­ron­men­tal Pro­tec­tion Agency before and after attend­ing the Manne Insti­tute, because these two agen­cies are specif­i­cal­ly crit­i­cized by pro­po­nents of law and eco­nom­ics. They found that ​“Manne judges exhib­it a sharp and sud­den increase in propen­si­ty to vote against fed­er­al labor and envi­ron­men­tal reg­u­la­to­ry agencies.”

After attend­ing the Manne Insti­tute, judges were also found to use the lan­guage of eco­nom­ics more often in their deci­sions. On fed­er­al appel­late courts, judges sit on three-judge pan­els. The paper found that ​“eco­nom­ics lan­guage is con­ta­gious,” which meant that ​“judges who sit with eco­nom­ics-trained judges start to use more eco­nom­ics language.”

The Ash, Chen and Naidu paper shows that even if Democ­rats take back the pres­i­den­cy and the Sen­ate, turn­ing the judi­cia­ry in a pro­gres­sive direc­tion will be much more dif­fi­cult than sim­ply appoint­ing new judges. Over the course of decades, law and eco­nom­ics has tak­en root in the courts and the law. To counter it, pro­gres­sives will need a coun­ter­vail­ing vision of the con­sti­tu­tion, and an edu­ca­tion­al appa­ra­tus to dis­sem­i­nate the ideas through acad­e­mia and the judiciary.