The Society Nosotros No Longer Keep

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

Linda Greenhouse

            Two texts, a quarter century apart, frame the number nether give-and-take inward this symposium. In 1986, presently earlier becoming Chief Justice, Justice William Rehnquist published an article he titled “Constitutional Law in addition to Public Opinion.”  [20 Suffolk U. L. Rev. 753, 768 (1986)]  Public view inevitably influences courts, he wrote, explaining that piece judges alive isolated lives, they are non “sealed off hermetically” from the basis around them.  “[J]udges become abode at nighttime in addition to read the newspapers or lookout adult man the even out intelligence on television; they verbalize to their identify unit of measurement in addition to friends nigh electrical flow events. Somewhere ‘out there’ – beyond the walls of the courthouse – run currents in addition to tides of populace view which lap at the courthouse door.”

            Fast frontward 27 years. In 2013, Antonin Scalia, who joined the Supreme Court the same twelvemonth Rehnquist became Chief Justice, gave an interview to New York Magazine.  

Where did he larn his news, the interviewer, Jennifer Senior, asked him. “We but larn the Wall Street Journal in addition to the Washington Times,” Scalia replied, referring to the flamboyantly conservative paper owned yesteryear the Unification Church. “We used to larn the Washington Post but it but went besides far for me. I couldn’t grip it anymore . . . And yous know, why should I larn upset every morning?” He went on to depict the Post as “shrilly, shrilly liberal.”

            William Rehnquist was, of course, deeply conservative, in addition to let’s assume in addition to so were the friends in addition to identify unit of measurement members with whom he discussed electrical flow events. But when he turned on the boob tube to lookout adult man the even out news, it was the same network intelligence that non exclusively his friends in addition to identify unit of measurement but his liberal colleagues.

            William Brennan in addition to Thurgood Marshall were watching as well. Different Justices could in addition to undoubtedly did answer differently to what they saw on the abode screen. But at the same time, in that place was no choice universe for whatever of them to bring refuge in, no walling themselves off from the mainstream media’s delivery, to the best of its ability, of fact-based news. By the fourth dimension Scalia died inward early on 2016, that era of mutual factual basis was long past.

            And that’s a main argue why theories nigh populace view formation with honour to the Supreme Court get got long needed an update. The dependent land has e'er been elusive. Influenza A virus subtype H5N1 decade ago, 2 esteemed scholars of judicial behavior, Lee Epstein in addition to Andrew D. Martin, confessed their puzzlement, giving their article the championship “Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why).” [13 U. PA. J. Const. L. 263 (2010]

 

            Further complicating matters, the public’s response to the Supreme Court has changed inward recent years. Needless to say, Supreme Court decisions get got e'er been controversial. But political scientists developed a “positivity theory” to concern human relationship for the fact that the Court’s decisions tend to live on accepted yesteryear the populace in addition to thence to confer legitimacy on the Court itself. That was truthful fifty-fifty for Roe v. Wade; a National Opinion Research Center (NORC) survey conducted 2 months after the view was issued “showed a remarkable liberalization of abortion attitudes on the work of all groups in addition to subgroups of American society,” an final result that suggested “an right away legitimating lawsuit on populace opinion.”[1] (Devins’ in addition to Baum’s assertion that Roe, along with Obergefell, “were highly controversial when they were handed down” reflects a nigh universal assumption, but it’s non accurate, at to the lowest degree with honour to Roe. Intense contestation over abortion, of which Roe became the symbol, developed over the ensuing years nether careful tillage yesteryear the Republican Party in addition to the religious right.)[2]

            Compare what happened inward the immediate aftermath of Sebelius v. N.F.I.B, the Court’s first of all determination on the Affordable Care Act, inward June 2012. The populace was intensely divided earlier the determination that upheld the private mandate, in addition to months afterward remained divided. Influenza A virus subtype H5N1 Kaiser poll inward March 2013, ix months after the decision, showed 68 percent of Republicans opposed to the police in addition to 58 percent of Democrats inward favor. (And a Gallup Poll conducted right away after the determination showed that Republicans’ favorable rating of Chief Justice Roberts, whose vote was the primal to the law’s survival, had dropped yesteryear twoscore per centum points since the starting fourth dimension of his tenure, with barely a quarter of Republicans viewing him favorably, piece Democrats’ favorable rating of Roberts rose yesteryear xix points to overstep the 50 percent mark. This same post-decision poll constitute that Republican approving of the Supreme Court’s project performance plummeted since the previous twelvemonth from 50 percent to 29 percent, piece Democrats’ approving rose from 46 percent to 68 percent.)  Political scientists are starting fourth dimension to wonder whether their cherished positivity theory all the same holds up.[3]

            And if it doesn’t? From the outside, given the accumulation of 5-to-4 decisions in addition to the fact that the justices’ ideology maps exactly onto the political party of their appointing presidents, it surely appears as if the Court is approaching a danger zone, a looming crisis of legitimacy. The Justices know this, certainly. Chief Justice Roberts has worried aloud nigh it, to a greater extent than than once. So, recently, has Justice Kagan. Don’t these smart people assist plenty to create something nigh it?

            It’s Neal Devins’ in addition to Lawrence Baum’s contribution to demonstrate why that’s non probable to happen, why Justice Alito is non going to halt his flagrant in addition to norm-bending trolling for cert petitions that tin sack furnish vehicles for overturning precedents he wants to erase (see Janus and, to a greater extent than recently, https://www.supremecourt.gov/opinions/18pdf/18-364_08m1.pdf ) in addition to why Justice Thomas isn’t going to curtail his march through the Bill of Rights with lone opinions urging time-travel dorsum to 1791. Nor, for that matter, is Justice Ginsburg probable to halt sporting her famous “dissent collar,” at nowadays available for sale at Banana Republic, which volition donate one-half the proceeds to the ACLU Women’s Rights Project.

            Each of these Justices is playing to a base. While we’re non accustomed to thinking of Supreme Court Justices as having a base, the betoken is that a Justice’s base of operations doesn’t consist of a crowd of people inward MAGA hats, or the equivalent liberal headgear.  Devins in addition to Baum explicate that the approving today’s Justices seek is non the adulation of the crowd but rather the esteem of their peers alongside the country’s elite. By itself, there’s cypher novel inward that observation. The iii other Republican-appointed Justices who signed onto Harry Blackmun’s 7-2 view inward Roe v. Wade were not, it’s prophylactic to say, motivated yesteryear an epiphany nigh the work of reproductive liberty inward permitting women “to participate every bit inward the economical in addition to social life of the Nation,” as the Court would pose it xix years afterward inward Planned Parenthood v. Casey. Rather, Blackmun in addition to the other members of the bulk were responding to the recent abortion-reform maiden of the American Law Institute in addition to to calls yesteryear the American Medical Association in addition to the populace wellness profession to destination the century-old government of abortion’s criminalization. They were responding, inward other words, to their beau elites. The Court was a follower – not, as in addition to so many assume today, a leader.

            What’s novel nigh The Company They Keep is the insight that the elites inward the province today are polarized to a hitting degree, no longer coming together across ideological lines for lively conversation at Katharine Graham’s Georgetown dinner table, no longer, a la Scalia, exposing themselves to ideas they powerfulness uncovering disagreeable. The nomination in addition to confirmation procedure is an inherent work of this moving painting of course of pedagogy – inevitably, when a president’s goal is to motility as far to the correct as possible in addition to all the same larn 51 votes. Gone are the days when an Antonin Scalia tin sack live on confirmed yesteryear a vote of 98-0 in addition to a Ruth Bader Ginsburg yesteryear a vote of 96-3.  It’s this polarization that today’s Supreme Court reflects – in addition to if the Court is poorer for it, in addition to so are nosotros all.

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Linda Greenhouse is Joseph Goldstein Lecturer inward Law in addition to Knight Distinguished Journalist inward Residence in addition to at Yale Law School. You tin sack gain her yesteryear email at linda.greenhouse at yale.edu

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[1] William Ray Arney & William H. Trescher, Trends inward Attitudes Toward Abortion, 1972-1975, Fam. Plan. Persp., May/June 1976, at 117, 124.  See also Linda Greenhouse & Reva B. Siegel, Backlash to the Future? From Roe to Perry, lx UCLA L. Rev. Disc. 240, 244 n. xiv (2013). https://www.uclalawreview.org/backlash-to-the-future/

[2] See Linda Greenhouse & Reva B. Siegel, Before (and After) Roe v. Wade: New Questions About Backlash, 120 Yale L.J. 2028 (2011).

[3] James L. Gibson & Michael J. Nelson, Reconsidering Positivity Theory: What Roles Do Politicization, Ideological Disagreement, in addition to Legal Realism Play inward Shaping U.S. of A. of America Supreme Court Legitimacy, 14 J. Empir. Leg. Stud. 592 (2017).