Siloed Justices In Addition To The Law/Politics Divide

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

Richard L. Hasen

In an eye-opening 2013 interview alongside journalist Jennifer Senior, the like shooting fish in a barrel Supreme Court Justice Antonin Scalia explained his “media diet.” He said that he read the Wall Street Journal as well as the Washington Times. He had dropped his subscription to the Washington Post because of what he saw every bit the newspaper’s “treatment of almost whatsoever conservative issue. It was slanted as well as often nasty. And, yous know, why should I larn upset every morning? I don’t recollect I’m the solely one. I recollect they lost subscriptions partly because they became as well as hence shrilly, shrilly liberal.” He besides said he did non read the New York Times as well as that he got most of his intelligence from utter radio.

Scalia’s media diet was a sign of things to come.

In Neal Devin’s as well as Larry Baum’s indispensable novel book, The Company They Keep: How Partisan Divisions Came to the Supreme Court, the authors convincingly fence that the 2 leading political scientific discipline models of Supreme Court judicial decisionmaking—the attitudinalist model positing that Justices vote their values as well as the strategic model positing that Justices vote strategically to advance their values inwards low-cal of the potential reactions of other strategic actors, such every bit Congress as well as executive agencies—inadequately depict the Justices’ decisionmaking. Devins as well as Baum offering a psychological model positing that Justices, similar others, are the production of the globe simply about them, as well as Supreme Court Justices travelling inwards elite social circles essay affirmation as well as approving from these elites.

In an before era, a mutual social circle of other judges, constabulary professors, lawyers, at the summit of the profession as well as journalists at elite intelligence outlets helped shape the Justices’ values as well as occasionally rein inwards their votes, as well as that given an historic liberal bent of the legal elite (at to the lowest degree on civil rights as well as civil liberties issues), many Justices “evolved” over fourth dimension toward the left on these issues. The authors write of the so-called “Greenhouse effect” where fifty-fifty some conservative Justices were swayed yesteryear coverage of the Court as well as its decisions yesteryear the New York Times’s one-time Supreme Court reporter, Linda Greenhouse.

But polarization has changed everything on the Supreme Court. Thanks to polarization inwards Congress as well as the Presidency, for the showtime fourth dimension inwards Supreme Court history all of the conservative-leaning Justices accept been appointed yesteryear Presidents of i political party as well as all the liberal-leaning Justices appointed yesteryear Presidents of the other party. The most conservative Democratic-appointed Justice is to a greater extent than liberal than the most liberal Republican-appointed Justice.

As Devins as well as Baum argue, today’s politically polarized elite globe both shapes as well as reflects how Justices persuasion their jobs as well as create upwardly one's heed how to vote, leading to a novel polarization on the Supreme Court. Adam Bonica as well as Maya Sen’s work confirms that the leftward drift of lawyers overall is accelerating, giving enough of affirmation for the liberal Justices on the Court. At the same time, the ascendance of conservatives as well as libertarians inwards the Federalist Society has created an option laid of elite actors to whom conservative Justices on the Supreme Court tin sack facial expression for ideas, constabulary clerks, as well as social affirmation. Lower courtroom judges brought upwardly from Federalist Society ranks appointed yesteryear Republican Presidents oft advance theories which would accept been  to utilisation Jack’s term, “off the wall” inwards an before era, as well as reinforce i some other every bit to the legitimacy of these novel views.

This carve upwardly way fewer “evolving” Justices as well as greater sectionalisation on the Court over time, alongside social as well as political issues from abortion to voting rights to the surroundings increasingly probable to follow the predictable lines i would await if the Justices were voting their political as well as ideological orientations. Ironically, the attitudinalist model volition increasingly facial expression right because the Justices tin sack to a greater extent than fully vote their values alongside cognition of affirmation from their reflective social circles.

Devins as well as Baum accept successfully captured the existent phenomenon of polarization on the Supreme Court, fifty-fifty every bit the Court in its less ideological moments has achieved high rates of unanimity when the Court deals alongside enforcing uniformity of decisionmaking inwards the lower courts on non-ideological questions. When it is an number that makes it to the forepart of the New York Times, the Justices volition oft directly carve upwardly yesteryear ideology and party.

As to origins of the electrical flow divide, I would house more emphasis on Justice Scalia’s role inwards accelerating polarization on the Court. Not solely did he acquaint his originalist as well as textualist methods of interpretation every bit the solely right methods of interpretation, he engaged inwards a pugnacious as well as relentless effort to characterize those who did non subscribe to his orthodoxy every bit engaged inwards a politics rather than law. He trained his delegitimization of opponents fifty-fifty to a greater extent than on the Court’s moderate Republicans—Anthony Kennedy as well as Sandra Day O’Connor—than on the Court’s liberals. It is a model I await at to the lowest degree Justices Gorsuch as well as Kavanaugh to emulate over time, if non inwards tone, inwards substance.

Scalia besides revived the purpose of the “Celebrity Justice,” a phenomenon which Devins as well as Baum admit close the goal of the book. Scalia, as well as afterward Ruth Bader Ginsburg, became stone star Justices, drawing adoring crowds who celebrate these lawyers every bit though they were teenagers coming together Beyoncé. If nosotros are thinking close the psychological effects on Justices getting affirmation that they are on the right path, cult-like worship tin sack solely brand the assured fifty-fifty surer inwards their convictions. This seems particularly unsafe during polarized times.

This 2nd of polarization could non come upwardly at a worse time. We are experiencing rapid technological modify inwards which social media amplifies as well as reinforces existing ideas, as well as where people larn exposed to data from increasingly siloed sources. The Justices are non going to last immune from this phenomenon.

So imagine a Federalist Society-oriented Justice getting bombarded at abode as well as inwards the machine as well as piece listening to podcasts at the gym alongside utter of a scourge of “voter fraud” via FOX News, Breitbart, as well as Twitter, piece a liberal Justice hears constant messages close the “myth of voter fraud” as well as attempts at voter suppression from the New York Times, MSNBC, as well as the like. When a illustration makes its way to the Supreme Court involving a restrictive voting law, the Justices come upwardly from their silos alongside dissimilar priors based upon how intelligence has been presented to them, along alongside a laid of legal precedents as well as presumptions which reinforce their ain globe views.

Facts should affair to these Justices, every bit facts ever should affair when courts create upwardly one's heed cases of social as well as political importance. But inwards an increasingly post-fact society, where political tribalism rules as well as is amplified yesteryear social media, as well as Justices are the production of the globe simply about them, what promise exercise nosotros accept for reasoned deliberation as well as rational decisionmaking? Very little, every bit the already frayed line betwixt constabulary as well as politics stands cook to collapse.

Richard L. Hasen is Chancellor's Professor of Law as well as Political Science at the University of California, Irvine. You tin sack plough over him yesteryear electronic mail at rhasen at law.uci.edu