Balkinization: The Company We No Longer Keep

The Company We No Longer Keep

Guest Blogger

For the symposium on Neal Devins and Lawrence Baum's new 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 issue under discussion in this symposium. In 1986, shortly before becoming Chief Justice, Justice William Rehnquist published an article he titled “Constitutional Law and Public Opinion.” [20 Suffolk U. L. Rev. 753, 768 (1986)] Public opinion inevitably influences courts, he wrote, explaining that while judges live isolated lives, they are not “sealed off hermetically” from the world around them. “[J]udges go home at night and read the newspapers or watch the evening news on television; they talk to their family and friends about current events. Somewhere ‘out there’ – beyond the walls of the courthouse – run currents and tides of public opinion which lap at the courthouse door.”

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

Where did he get his news, the interviewer, Jennifer Senior, asked him. “We just get the Wall Street Journal and the Washington Times,” Scalia replied, referring to the flamboyantly conservative newspaper owned by the Unification Church. “We used to get the Washington Post but it just went too far for me. I couldn’t handle it anymore . . . And you know, why should I get upset every morning?” He went on to describe the Post as “shrilly, shrilly liberal.”

William Rehnquist was, of course, deeply conservative, and let’s assume so were the friends and family members with whom he discussed current events. But when he turned on the television to watch the evening news, it was the same network news that not only his friends and family but his liberal colleagues.

William Brennan and Thurgood Marshall were watching as well. Different Justices could and undoubtedly did respond differently to what they saw on the home screen. But at the same time, there was no alternative universe for any of them to take refuge in, no walling themselves off from the mainstream media’s delivery, to the best of its ability, of fact-based news. By the time Scalia died in early 2016, that era of common factual ground was long past.

And that’s a main reason why theories about public opinion formation with respect to the Supreme Court have long needed an update. The subject has always been elusive. A decade ago, two esteemed scholars of judicial behavior, Lee Epstein and Andrew D. Martin, confessed their puzzlement, giving their article the title “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 in recent years. Needless to say, Supreme Court decisions have always been controversial. But political scientists developed a “positivity theory” to account for the fact that the Court’s decisions tend to be accepted by the public and thus to confer legitimacy on the Court itself. That was true even for Roe v. Wade; a National Opinion Research Center (NORC) survey conducted two months after the opinion was issued “showed a remarkable liberalization of abortion attitudes on the part of all groups and subgroups of American society,” an outcome that suggested “an immediately legitimating effect on public opinion.”[1] (Devins’ and Baum’s assertion that Roe, along with Obergefell, “were highly controversial when they were handed down” reflects a near universal assumption, but it’s not accurate, at least with respect to Roe. Intense controversy over abortion, of which Roe became the symbol, developed over the ensuing years under careful cultivation by the Republican Party and the religious right.)[2]

Compare what happened in the immediate aftermath of Sebelius v. N.F.I.B, the Court’s first decision on the Affordable Care Act, in June 2012. The public was intensely divided before the decision that upheld the individual mandate, and months later remained divided. A Kaiser poll in March 2013, nine months after the decision, showed 68 percent of Republicans opposed to the law and 58 percent of Democrats in favor. (And a Gallup Poll conducted immediately after the decision showed that Republicans’ favorable rating of Chief Justice Roberts, whose vote was the key to the law’s survival, had dropped by 40 percentage points since the beginning of his tenure, with barely a quarter of Republicans viewing him favorably, while Democrats’ favorable rating of Roberts rose by 19 points to pass the 50 percent mark. This same post-decision poll found that Republican approval of the Supreme Court’s job performance plummeted since the previous year from 50 percent to 29 percent, while Democrats’ approval rose from 46 percent to 68 percent.) Political scientists are beginning to wonder whether their cherished positivity theory still holds up.[3]

And if it doesn’t? From the outside, given the accumulation of 5-to-4 decisions and the fact that the justices’ ideology maps precisely onto the party of their appointing presidents, it certainly 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 about it, more than once. So, recently, has Justice Kagan. Don’t these smart people care enough to do something about it?

It’s Neal Devins’ and Lawrence Baum’s contribution to show why that’s not likely to happen, why Justice Alito is not going to stop his flagrant and norm-bending trolling for cert petitions that can provide vehicles for overturning precedents he wants to erase (see Janus and, more recently, https://www.supremecourt.gov/opinions/18pdf/18-364_08m1.pdf ) and why Justice Thomas isn’t going to curtail his march through the Bill of Rights with solitary opinions urging time-travel back to 1791. Nor, for that matter, is Justice Ginsburg likely to stop sporting her famous “dissent collar,” now available for sale at Banana Republic, which will donate half the proceeds to the ACLU Women’s Rights Project.

Each of these Justices is playing to a base. While we’re not accustomed to thinking of Supreme Court Justices as having a base, the point is that a Justice’s base doesn’t consist of a crowd of people in MAGA hats, or the equivalent liberal headgear. Devins and Baum explain that the approval today’s Justices seek is not the adulation of the crowd but rather the esteem of their peers among the country’s elite. By itself, there’s nothing new in that observation. The three other Republican-appointed Justices who signed onto Harry Blackmun’s 7-2 opinion in Roe v. Wade were not, it’s safe to say, motivated by an epiphany about the role of reproductive freedom in permitting women “to participate equally in the economic and social life of the Nation,” as the Court would put it 19 years later in Planned Parenthood v. Casey. Rather, Blackmun and the other members of the majority were responding to the recent abortion-reform initiative of the American Law Institute and to calls by the American Medical Association and the public health profession to end the century-old regime of abortion’s criminalization. They were responding, in other words, to their fellow elites. The Court was a follower – not, as so many assume today, a leader.

What’s new about The Company They Keep is the insight that the elites in the country today are polarized to a striking degree, no longer meeting across ideological lines for lively conversation at Katharine Graham’s Georgetown dinner table, no longer, a la Scalia, exposing themselves to ideas they might find disagreeable. The nomination and confirmation process is an inherent part of this picture of course – inevitably, when a president’s goal is to move as far to the right as possible and still get 51 votes. Gone are the days when an Antonin Scalia can be confirmed by a vote of 98-0 and a Ruth Bader Ginsburg by a vote of 96-3. It’s this polarization that today’s Supreme Court reflects – and if the Court is poorer for it, so are we all.

Linda Greenhouse is Joseph Goldstein Lecturer in Law and Knight Distinguished Journalist in Residence and at Yale Law School. You can reach her by e-mail at linda.greenhouse at yale.edu

[1] William Ray Arney & William H. Trescher, Trends in 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, 60 UCLA L. Rev. Disc. 240, 244 n. 14 (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, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy, 14 J. Empir. Leg. Stud. 592 (2017).

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