Balkinization: The Supply-Side Alternative, Part I

The Supply-Side Alternative, Part I

Guest Blogger

Steve Teles

Let me state right up front that I think Jack’s theory (jointly produced with Sandy Levinson) is, as essentially electoral theories of constitutional change go, about as good as you can get. Put simply, judicial behavior changes over time in response to shifts in popular attitudes, which are driven in large part by popular mobilization. Critically, the sole operative mechanism in his system is judicial appointments. Popular opinion changes, this filters down into the preferences of members of Congress and the president, and appointments represent the “vector sum” of (legislative and executive) preferences at the time of appointment. This does not require that Justices care a whit about popular opinion. All that is assumed is that the preferences of potential Justices are well-known at the time of appointment, and that the Justices that are appointed represent the point of overlap between Congress and the president.

This theory clearly flows into a theory of legitimation. If we think that democracy—defined here as conformity to popular preferences—is the sole means of legitimation, then a system that operates as Jack has described will (averaging over time) produce courts that reflect popular opinion. Courts are, therefore, at least as democratic—and thus legitimate—as any of the other branches.

This is a seductive theory, both in explanatory and normative terms, for legitimating judicial review in a democracy. However, if the explanatory piece of the theory is lacking, then parallel questions arise about the theory’s normative side. Let me suggest a few reasons for doubting the sufficiency of the explanatory side, and leave the normative problems for later.

Balkin’s is an exclusively demand-side theory. By that, I mean that judicial behavior can be wholly explained by electoral demand. There is a single point at which legislative and executive preferences meet, and judicial appointments are made at that point. While there are instances where Justices do not do what the popular branches expect them to do, these are the equivalent of “random errors,” which effectively cancel each other out over time. It is thus reasonable to assume that electoral “demand” determines what courts do.

Building on the arguments of Charles Epp in The Rights Revolution, I argue in The Rise of the Conservative Legal Movement that there are considerable problems with a purely demand-side theory of judicial behavior. In short, a demand side model of judicial behavior—as valuable as it is—generates substantial unexplained variance that only a supply-side model can account for. While I go into much greater detail on this matter in my book, let me present just a few supply-side factors that demand-side theories will need to either argue are relatively unimportant, or (I think inevitably) absorb into a more comprehensive theory. I will present the first factor in this post, and two others in subsequent posts.

Factor One: “The Pool.” The implicit assumption of demand-side theories is that those making judicial nominations always have available to them nominees that represent their ideological preferences (subject to what they believe they can get past Congress). I think that this is far from guaranteed, because the “pool” of potential nominees is far from comprehensive. To paraphrase Don Rumsfeld, presidents go into judicial nomination wars with the potential nominees they have, not those they might want. For various reasons, at any one time presidents find that the people who meet prevailing standards of what makes an appropriate nominee are exceptionally limited. While the “pool” may include at least one nominee who meets their ideological preference (while also meeting prevailing standards of appropriateness and potential confirmability), presidents care about more than judicial philosophy. They also care about ethnicity, gender, geography, age, past political favors and other factors unrelated to ideology. Therefore, if the pool of potential nominees is limited, presidents will find that they have to choose between their long-term interest in shaping the behavior of the court, and these other factors. The larger the pool, the more presidents can satisfy both their ideological preferences and their narrower political objectives (for example, choosing both a woman and a reliable conservative).

Now, if all presidents faced an equally limited pool, then this would not be a problem for a demand-side theory. But the supply-side theory of judicial behavior claims that they do not. The pool of potential nominees is produced by factors outside the control of presidents, typically by forces internal to the legal profession, or the result of investments by political coalitions in producing “well-groomed” nominees that occur well before (in some cases decades before) presidents start looking for people to put on the bench. Just as important (and this is especially significant for lower-court judges), presidents are limited not only by the content of the pool, but also by their ability to identify attractive nominees, and to predict the long-term ideological preferences of those in the pool. This information is a function of ideological networks, which take a great deal of time to develop, and which presidents must take as essentially given at the time they make the choices of judicial nominees. Put simply, the partisan coalition with a deeper pool, and with networks to choose effectively within it, will do more with whatever political opportunity their electoral power presents them with. And there is no reason to believe that the size of the pool and the effectiveness of networks will track the relative electoral power of competing party coalitions.

In my next two posts, I will present (at least) two other supply-side factors: agenda control and the scope of legally legitimate ideas.

Posted 6:17 AM by Guest Blogger [link]

Comments:

Even from a demand side perspective, the theory fails to account for the difference between what the public might demand, and what the political class, in this case represented by the President and Senate, want. If judicial selection is going to give us anything in the long run, it's the latter, not the former.

Indeed, constitutional 'change' by way of the judiciary represents less a display of democracy in action, than an end run around it, given that it's capable of generating 'change' which could never survive democratic ratification if proposed as an amendment.

# posted by

Brett : 7:37 AM

Demand side, supply side, whatever, it all boils down to the trickle down theory. Look at the results of the trickle down theory of economics a few decades ago that ended up as "Piss on you" while the political elites enjoyed swimming in the pool.

Perhaps at the SCOTUS level there ought to be more diversity rather than ALL of the Justices coming from the judge pool. Would what we recognize as individual rights today have come about but for an Earl Warren, a former Governor? Perhaps today's pools are too limiting by focusing upon those serving in the judiciary. What's wrong with politicians, academics, just plain practicing attorneys? A pool limited to the judiciary can be quite shallow.

# posted by

Shag from Brookline : 10:27 AM

I had to laugh at the references to "supply side". Conservatives just can't let this go -- they're wrong on economics, so they drag the theory into other arenas where they can be equally wrong.

In any case, the "supply side" theory doesn't seem to me to add much. The same political forces which create Prof. Balkin's "vector sum" do so precisely because they create all the subsidiary and supporting roles deemed necessary for their success. The supply side, as always, is inherent in the demand side, in politics just as in economics.

The size of the "pool" doesn't strike me as very limiting even on its own terms. A society of 300 million people only has to fill, what, 100 judicial positions per year? And one Supreme court justice every half-decade or so? That's not much of a constraint even if the supply side theory had any validity.

# posted by

Mark Field : 10:56 AM

Demand side, supply side, who cares? If you 'change the meaning' of a written document without changing the words that make it up, you sacrifice the point of having written it down in the first place.

Does anyone really think there are no consequences to the judiciary's claimed meaning of the Consitution taking this drunkard's walk away from what the text actually says? The judiciary are playing the role of the courtiers in the Emperor's new clothes, but all this long winded rationalization doesn't keep people from noticing that the Emperor is naked.

# posted by

Brett : 12:22 PM

a provocative posting mr. teles .. many thanks from one man on the river ..

# posted by

Jkat : 1:16 PM

I'm in a bit less of a rush now, and can be longer winded.

It's unreasonable to expect judicial appointments to track or converge on public opinion over the long run for several reasons:

1. The opinions and interests of officeholders are systematically, persistently different from that of the public. It is pretty much always in the interest of officeholders to increase the power their office wields, reduce the limitations on their use of that power, and to advantage incumbents relative to challengers. It has also become evident that officeholders' policy preferences systematically vary from public opinion on a number of dimensions which less directly involve their personal interests; I'd say this is probably due to their having so much more to do with each other than with the public, that they amount to an identifiable and somewhat insular society within society.

2. Officeholders may safely act on those different opinions and interests in the case of judicial appointments, because there is a great asymmetry between the information concerning nominees available to the officeholders and to the public, and a sufficient delay between nomination/confirmation and the public becoming aware that they have been screwed over, to prevent accountability.

The result is that we should expect judicially mediated 'change' to the the Constitution to track and converge on the preferences of officeholders, not the public.

In the case of formal amendment, the information asymmetry is limited due to the fact that amendments must be formally drafted and widely disseminated. And the amendment process takes long enough after this dissemination for the public to rally against undesirable amendments, and block them.

So, while even the formal amendment process will be somewhat skewed away from public opinion in the direction of the preferences of the political class, it will be much LESS skewed in that direction than informal 'amendment'.

Informal 'amendment' has replaced formal amendment via Article V procedures precisely because it enables the political class to wrest control of the Constitution from the public, and vest it entirely in their own hands. Far from being democratically legitimate, informal amendment is nothing more than a procedure for circumventing democratic constraints on the political class.

# posted by

Brett : 9:29 PM

A question: on Balkin's theory, if I get elected President and say, you know what, I'm a Republican, I campaigned on a pro-life platform, but I want my nomination process to be as depoliticized as possible, so I'll just, say, pick a name out of a hat filled with the names of the 10 best and brightest appellate judges in the land - names provided to me by a bipartisan group of law professors - am I doing some kind of disservice to democracy? Do I owe it to the people to nominate a judge who reflects my policy preferences? And similarly, if I nominate a Scalia, does the Democratic Senate have an obligation to reject him? Often you hear critics of the process saying, in effect, "confirm the really qualified nominees regardless of ideology, it's a travesty to vote against someone like John Roberts," but is that wrong? If the Court's legitimacy is derived from its being reflective of how people vote, I think it would have to be.

# posted by

Asher : 2:24 AM

A couple more points:

1. As the fate of the 27th amendment demonstrates, under the current informal 'amendment' process, the political class not only has seized the power to amend, it has also seized the power to block amendments which somehow DO make it through the formal process, by having the courts render them moot via interpretation. Pretty hard to explain, if you think informal 'amendment' is driven by public, rather than elite, opinion.

2. One downside of the formal amendment process is that the political class still retain the power to block popular amendments, as demonstrated by the fate of term limits. So actual amendment only tracks public opinion to the extent that the political class agrees with public opinion. This could be considered one of the checks on power in the Constitution, but I personally think it's a tad TOO effective in that regard, and support amending Article V so that the states can cut Congress entirely out of the loop, by amendments taking effect when ratified with identical language by the requisite number of states no matter where they originate from. Getting this past Congress would probably require a convention, of course.

# posted by

Brett : 6:24 AM

By the way, when the last few necessary states come on board to call for a convention, anyone want to bet that Congress ignores the call, and the courts declare the matter non-judicable? Game, set, and match: The informal process installed, and the formal process killed.

# posted by

Brett : 7:04 AM

We are shaped and fashioned by those we love.
Agen Judi Online Terpercaya

# posted by

Unknown : 4:09 PM