Justices Together With Their Audiences

For the symposium on Neal Devins together with Lawrence Baum's novel book, The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford University Press, 2019).

Neal Devins together with Larry Baum

Thanks to Jack Balkin for organizing together with writing for this symposium; thank you lot likewise to all the participants for working thus carefully through the ideas together with testify inward the mass together with offering such insightful comments. In this post, nosotros volition beak over the factors that shape the Justices’ choices every bit decision-makers.  While The Company We Keep does non offering a comprehensive theory of conclusion making, nosotros own got positions on some basic questions virtually these factors, primarily every bit they relate to the influence of the Court’s surround on the Justices.  And the participants’ comments, especially their points of disagreement alongside us, are largely virtually what affects the Justices’ choices.  All the participants made of import points virtually these factors and, inward thus doing, provided interesting angles from which to hollo upward through the fundamental arguments made inward our book. 

            1. Our fundamental together with most distinctive claim is that the Justices are influenced to a important score past times the elite globe around them.  This claim is rooted inward the belief that Supreme Court Justices tending a bully bargain virtually their reputation, especially their reputation amid those legal together with social elites they interface with.  This seemingly common-sense claim is a departure from criterion conceptions of the Court inward both constabulary together with political science, together with nosotros are pleased that the participants come across merit inward our argument.  Their discussions of this influence illuminate together with extend our declaration inward useful ways, especially past times emphasizing the impact of ideologically defined segments of elites on Justices’ ain thinking.  These contributions are exemplified past times several insightful passages:  Rick Hasen’s observation that nosotros alive inward a “post-fact society” where conservative together with liberal Justices larn their tidings from dissimilar ideologically-driven tidings outlets than conservative Justices (Linda Greenhouse also points to this phenomenon, noting Justice Antonin Scalia’s  depiction of the Washington Post as “shrilly liberal” together with non worth reading);  Sandy Levinson’s related observation that “there is no longer a mutual culture” inward the legal community, thus that (among other effects) the most visible legal scholarship is immediately seen every bit merely part of the larger civilisation wars together with dismissed past times those who disagree alongside its policy consequences; together with Frank Pasquale’s distinction betwixt elites who tending only virtually mightiness (Schmittian leftists together with rightists) together with process-oriented elites who “believe that politics revolves around meaningful dialogue.” 

            Rick Pildes’s observations virtually Justices Hugo Black together with Sandra Day O’Connor underline the reality that Justices do non automatically own got the positions that would win the most approving from their most salient audiences.  Black together with O’Connor are also examples of Justices who were part of multiple elite circles, inward part because of their backgrounds inward electoral politics.  In contrast, none of today’s Justices own got held elected office, together with the liberal or conservative social networks they are a part of are typically to a greater extent than homogeneous than those of many Justices inward past times eras. 

            2. Political scientists emphasize the impact of Justices’ policy preferences on their choices, most strongly inward the attitudinal model.  We concord on the importance of those preferences, together with the impact of appointments past times presidents who are careful inward their selection of Justices indicates that importance.  Along these lines, Frank Pasquale is right to banking firm notation that conservatives volition come across our give-and-take of the ascendency of the elite conservative legal network every bit “a balm, non a curse,” piece liberals volition bemoan this endeavor “to remake our judiciary.” We also hollo upward Rick Hasen makes an of import dot virtually how the influence of ideologically defined segments of the elite tin ship away brand the Court expect to a greater extent than attitudinal than it is.

Also of import is Mark Graber’s give-and-take of the postulate to avoid an supposition of ideological symmetry on the Court.  Mark usefully explains that the partisan split on today’s Court does non merely mimic the larger ideological split amid liberal Democratic together with conservative Republican elites—where each side is to a greater extent than extreme inward its ideological leanings than ever before.  On today’s Court, Democratic appointees are moderate liberals together with Republican appointees overall are rigid conservatives.  This claim finds back upward inward our book; nosotros beak over the greater purpose of ideology inward recent Republican appointments together with utilisation political scientist Michael Bailey’s ideological scores for Justices to demo that the increasing difference betwixt Republican together with Democratic appointees results primarily from a motion toward greater conservatism amid the Republican appointees.  We also beak over of import differences betwixt the to a greater extent than ideological Republican political party together with the to a greater extent than constituent-driven Democratic party; these differences are critical inward understanding Reagan Attorney General Ed Meese’s transformative purpose inward shaping legal policy through his covert of the then-fledgling Federalist Society (an observation that is prominently featured inward Sandy Levinson’s together with Jack Balkin’s posts).

            3. The impact of legal considerations doesn’t play a large purpose inward our argument, because those considerations aren’t a source of growing polarization.  Thus John McGinnis is right inward proverb that our give-and-take of the impact of constabulary is thin. John is also right inward explaining how a Justice’s commitment to i or some other legal theory (most notably originalism) explains both why a Justice typically but does non ever accomplish legal policy outcomes that jibe the policy views of the president/party that appoints her.   We brand a related dot inward the book, that nosotros hollo upward the Justices’ orientation toward the constabulary is a counterweight against polarization; our emphasis is the commitment of Justices to norms of judicial independence together with collegiality. (Indeed, nosotros promise to educate this farther inward ongoing enquiry comparison the norms/incentives of the Court alongside Congress.)  We are non convinced, however, that John is right inward emphasizing the importance of legal considerations inward the evolution of conservative positions on legal policy.  We hollo upward ideology was the driving strength of Attorney General Meese’s covert of originalism; that is, Meese came to covert originalism because he was inward search of an interpretive framework that was perceived to favor conservative results.  Once established, originalism—as John thoughtfully observes—has some independent strength every bit does whatsoever other interpretive framework.  Justice Scalia, for example, did non ever advance conservative legal policy outcomes through his application of originalism.  But nosotros hollo upward this independent strength is relatively express inward strength; for Scalia, similar other Justices who are committed to a item approach to legal interpretation, that approach typically led to results that were consistent alongside his policy preferences.

            Rick Pildes raises the related together with of import query of what legal elites tending about, together with he points out that the trouble organisation of these elites alongside the legal integrity of decision-making tin ship away atomic number 82 Justices to own got legal integrity into account.  We concord alongside him, together with this claim lies at the pump of our ongoing research.  The hard query is whether that consideration substantially affects the positions that Justices own got every bit conclusion makers.  We hollo upward it does, but nosotros are non confident inward that judgment.  The mightiness of Justices to convince themselves that they are acting on a legal footing fifty-fifty when their judgments are heavily colored past times their policy preferences may trim the independent impact of legal integrity every bit a consideration.  Indeed, the emphasis on interpretive methods inward the conservative legal motion that John McGinnis appropriately points to makes it easier for conservative Justices to own got positions that win praise from a salient audience for taking positions that embody both practiced constabulary together with practiced policy.

            4.  Social movements arguably play an of import but underappreciated purpose inward our story.  This is the dot Jack Balkin makes inward his illuminating post regarding the purpose of the broader conservative motion inward triggering the ascent of the elite conservative legal network. We concord that social movements may endure a driving strength for changes inward elite thought together with ultimately the Justices’ views.  To that extent, Jack makes a useful add-on to our framework past times extending the causality dorsum an of import step: a total explanation of the class of policy inward the Supreme Court must own got the impact of social movements into account.  But nosotros would non give every bit much emphasis to social movements every bit Jack does.  The founding of the Federalist Society, its nurturing inside the Meese Justice Department, together with its increment to locomote an of import political strength are a classic instance of of import developments that occurred almost solely inward the elite world.  As John McGinnis puts it inward his post: “Elites decide which movement’s ideas plow into Supreme Court doctrine.”

            5.   The Company They Keep is principally a mass virtually why it is that today’s Court is immediately divided along partisan lines; the mass notes that these ideological/partisan divides are probable to persist but spends petty fourth dimension talking virtually the future. In their posts, Linda Greenhouse together with Sandy Levinson furnish of import insights virtually the future. We hollo upward Sandy is right inward noting that groups similar the Federalist Society together with American Constitution Society are manifestations of an ideological split that merely did non be when the elite legal institution was largely homogeneous; correspondingly, nosotros concord that today’s ideological divisions are probable to widen earlier they narrow.  We likewise concord alongside Linda Greenhouse’s of import observation that “what’s new” virtually our mass is its insight that today’s elites are polarized--a polarization that is probable to continue.  Before the ascent of the conservative legal network, legal elites were overwhelmingly center-left together with Court decision-making reflected the authorisation of center-left elites.  The leftward shift of Justice Harry Blackmun, for example, was a production of its times exactly every bit the hardening of conservative together with liberal positions on the Robert’s Court is tied to today’s era of elite polarization. Relatedly, nosotros concord alongside Linda virtually the nexus betwixt the Court’s partisan split together with the Court’s legitimacy, that is, its mightiness to endure seen every bit a courtroom of constabulary together with non some other partisan branch.  As far every bit external perceptions of the Court are concerned, it may non affair whether or non today’s Justices formally play to their political base of operations or own got steps to demonstrate their independence, collegiality, together with legitimacy.  Presidential candidates, Senators, together with Blue Planet increasingly come across the courts every bit comprised of Obama together with Trump judges.  This is non probable to change: our mass makes clear that political affiliation is highly salient inward predicting the ideological seat of the Justices, together with that fact volition stand upward out for observers of the Court every bit a fundamental reality virtually the Court.  Consequently, it may non affair to the public, political establishment, or media that the Justices own got steps to demonstrate their collegiality together with independence. 

Neal Devins is Sandra Day O'Connor Professor of Law, Cabell Research Professor, Professor of Government, together with Director, Institute of Bill of Rights Law at the College of William together with Mary. You tin ship away accomplish him past times email at nealdevins at gmail.com
Lawrence Baum is Professor Emeritus of Political Science at Ohio State University. You tin ship away accomplish him past times email at baum.4 at polisci.osu.edu