Neal Devins and Larry Baum

Thanks to Jack Balkin for organizing and writing for this symposium; thanks too to all the participants for working so carefully through the ideas and evidence in the book and offering such insightful comments. In this post, we will discuss the factors that shape the Justices’ choices as decision-makers.  While The Company We Keep does not offer a comprehensive theory of decision making, we take positions on some basic questions about these factors, primarily as they relate to the influence of the Court’s environment on the Justices.  And the participants’ comments, especially their points of disagreement with us, are largely about what affects the Justices’ choices.  All the participants made important points about these factors and, in so doing, provided interesting angles from which to think through the central arguments made in our book. 

            1. Our central and most distinctive claim is that the Justices are influenced to a significant degree by the elite world around them.  This claim is rooted in the belief that Supreme Court Justices care a great deal about their reputation, particularly their reputation among those legal and social elites they interface with.  This seemingly common-sense claim is a departure from standard conceptions of the Court in both law and political science, and we are pleased that the participants see merit in our argument.  Their discussions of this influence illuminate and extend our argument in useful ways, especially by emphasizing the impact of ideologically defined segments of elites on Justices’ own thinking.  These contributions are exemplified by several insightful passages:  Rick Hasen’s observation that we live in a “post-fact society” where conservative and liberal Justices get their news from different ideologically-driven news outlets than conservative Justices (Linda Greenhouse also points to this phenomenon, noting Justice Antonin Scalia’s  depiction of the Washington Post as “shrilly liberal” and not worth reading);  Sandy Levinson’s related observation that “there is no longer a common culture” in the legal community, so that (among other effects) the most visible legal scholarship is now seen as simply part of the larger culture wars and dismissed by those who disagree with its policy consequences; and Frank Pasquale’s distinction between elites who care only about power (Schmittian leftists and rightists) and process-oriented elites who “believe that politics revolves around meaningful dialogue.” 

            Rick Pildes’s observations about Justices Hugo Black and Sandra Day O’Connor underline the reality that Justices do not automatically take the positions that would win the most approval from their most salient audiences.  Black and O’Connor are also examples of Justices who were part of multiple elite circles, in part because of their backgrounds in electoral politics.  In contrast, none of today’s Justices have held elected office, and the liberal or conservative social networks they are a part of are typically more homogeneous than those of many Justices in past eras. 

            2. Political scientists emphasize the impact of Justices’ policy preferences on their choices, most strongly in the attitudinal model.  We agree on the importance of those preferences, and the impact of appointments by presidents who are careful in their selection of Justices indicates that importance.  Along these lines, Frank Pasquale is right to note that conservatives will see our discussion of the ascendancy of the elite conservative legal network as “a balm, not a curse,” while liberals will bemoan this effort “to remake our judiciary.” We also think Rick Hasen makes an important point about how the influence of ideologically defined segments of the elite can make the Court look more attitudinal than it is.

Also important is Mark Graber’s discussion of the need to avoid an assumption of ideological symmetry on the Court.  Mark usefully explains that the partisan divide on today’s Court does not simply mimic the larger ideological divide among liberal Democratic and conservative Republican elites—where each side is more extreme in its ideological leanings than ever before.  On today’s Court, Democratic appointees are moderate liberals and Republican appointees overall are strong conservatives.  This claim finds support in our book; we discuss the greater role of ideology in recent Republican appointments and use political scientist Michael Bailey’s ideological scores for Justices to show that the increasing divergence between Republican and Democratic appointees results primarily from a movement toward greater conservatism among the Republican appointees.  We also discuss important differences between the more ideological Republican party and the more constituent-driven Democratic party; these differences are critical in understanding Reagan Attorney General Ed Meese’s transformative role in shaping legal policy through his embrace of the then-fledgling Federalist Society (an observation that is prominently featured in Sandy Levinson’s and Jack Balkin’s posts).

            3. The impact of legal considerations doesn’t play a big role in our argument, because those considerations aren’t a source of growing polarization.  Thus John McGinnis is right in saying that our discussion of the impact of law is thin. John is also correct in explaining how a Justice’s commitment to one or another legal theory (most notably originalism) explains both why a Justice typically but does not always reach legal policy outcomes that match the policy views of the president/party that appoints her.   We make a related point in the book, that we think the Justices’ orientation toward the law is a counterweight against polarization; our emphasis is the commitment of Justices to norms of judicial independence and collegiality. (Indeed, we hope to develop this further in ongoing research comparing the norms/incentives of the Court with Congress.)  We are not convinced, however, that John is correct in emphasizing the importance of legal considerations in the development of conservative positions on legal policy.  We think ideology was the driving force of Attorney General Meese’s embrace of originalism; that is, Meese came to embrace originalism because he was in search of an interpretive framework that was perceived to favor conservative results.  Once established, originalism—as John thoughtfully observes—has some independent force as does any other interpretive framework.  Justice Scalia, for example, did not always advance conservative legal policy outcomes through his application of originalism.  But we think this independent force is relatively limited in strength; for Scalia, like other Justices who are committed to a particular approach to legal interpretation, that approach typically led to results that were consistent with his policy preferences.

            Rick Pildes raises the related and important question of what legal elites care about, and he points out that the concern of these elites with the legal integrity of decision-making can lead Justices to take legal integrity into account.  We agree with him, and this claim lies at the heart of our ongoing research.  The difficult question is whether that consideration substantially affects the positions that Justices take as decision makers.  We think it does, but we are not confident in that judgment.  The ability of Justices to convince themselves that they are acting on a legal basis even when their judgments are heavily colored by their policy preferences may reduce the independent impact of legal integrity as a consideration.  Indeed, the emphasis on interpretive methods in the conservative legal movement that John McGinnis appropriately points to makes it easier for conservative Justices to take positions that win praise from a salient audience for taking positions that embody both good law and good policy.

            4.  Social movements arguably play an important but underappreciated role in our story.  This is the point Jack Balkin makes in his illuminating post regarding the role of the broader conservative movement in triggering the rise of the elite conservative legal network. We agree that social movements may be a driving force for changes in elite opinion and ultimately the Justices’ views.  To that extent, Jack makes a useful addition to our framework by extending the causality back an important step: a full explanation of the course of policy in the Supreme Court must take the impact of social movements into account.  But we would not give as much emphasis to social movements as Jack does.  The founding of the Federalist Society, its nurturing within the Meese Justice Department, and its growth to become an important political force are a classic example of important developments that occurred almost entirely in the elite world.  As John McGinnis puts it in his post: “Elites determine which movement’s ideas turn into Supreme Court doctrine.”

            5.   The Company They Keep is principally a book about why it is that today’s Court is now divided along partisan lines; the book notes that these ideological/partisan divides are likely to persist but spends little time talking about the future. In their posts, Linda Greenhouse and Sandy Levinson provide important insights about the future. We think Sandy is correct in noting that groups like the Federalist Society and American Constitution Society are manifestations of an ideological divide that simply did not exist when the elite legal establishment was largely homogeneous; correspondingly, we agree that today’s ideological divisions are likely to widen before they narrow.  We likewise agree with Linda Greenhouse’s important observation that “what’s new” about our book is its insight that today’s elites are polarized--a polarization that is likely to continue.  Before the rise of the conservative legal network, legal elites were overwhelmingly center-left and Court decision-making reflected the dominance of center-left elites.  The leftward shift of Justice Harry Blackmun, for example, was a product of its times just as the hardening of conservative and liberal positions on the Robert’s Court is tied to today’s era of elite polarization. Relatedly, we agree with Linda about the nexus between the Court’s partisan divide and the Court’s legitimacy, that is, its ability to be seen as a court of law and not another partisan branch.  As far as external perceptions of the Court are concerned, it may not matter whether or not today’s Justices formally play to their political base or take steps to demonstrate their independence, collegiality, and legitimacy.  Presidential candidates, Senators, and the public increasingly see the courts as comprised of Obama and Trump judges.  This is not likely to change: our book makes clear that political affiliation is highly salient in predicting the ideological position of the Justices, and that fact will stand out for observers of the Court as a central reality about the Court.  Consequently, it may not matter to the public, political establishment, or media that the Justices take steps to demonstrate their collegiality and independence.